International & Constitutional Perspectives
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International & Constitutional Perspectives

October 10, 2019


Hello dear students, I welcome you all to
the course on gender justice and workplace security. Gender justice as we have seen is a concept
which tries to address the inequality which exists in society between the men and women. It tries to ensure that there is no discrimination
which exists between man and woman or a denial of rights to women on the basis of gender. So in order to achieve gender justice it is
important that women are made a part of the entire process, state must take necessary
endeavor to ensure the rights of women, to ensure her opportunities and resources whereby
in terms of education, in terms of employment, in terms of other aspects she is not discriminated
against, but she is given her due which she is entitled to. Now in this object of achieving gender justice
we need to understand the role of the international institutions. And then coming to India the constitutional
perspectives, because the understanding which we have of gender justice with regard to the
rights of women their entitlements have been much influenced by the International developments
which have happened over the years probably since 1945 onwards and they are after coming
back to India. The supreme law in terms of the Constitution
and the way the Constitution enumerates the rights and duties has gone a long way in the
process of achieving this equality. Now when we are looking into the International
aspect probably we start with the United Nations, the United Nations as a body has had a tremendous
role and impact on the notion of gender rights and equality over the years, over the decades
it has taken several strides in terms of various declarations, various conventions, various
world conferences being held on the issue of womens rights issue of discrimination,
issue of violence against women. And thereby through this process it has tried
to impose obligations it has tried to in the first place make state parties to agree on
the different aspects, on the different rights which must be ensured within their respective
jurisdictions as well as made State Parties responsible to ensure the securing of those
rights. So therefore it has some well mobilized the
entire process in sync to it that there is somewhere and understanding our uniform understanding
as well as an agreement between the different state parties or amongst or across the state
parties to secure the positions of women in society which over the years have deteriorated
and needs some push or some extra efforts whereby they can be revived. Probably DT can be differentiated into certain
different in terms of period and in terms of the efforts which the United Nations have
made into four different periods 1945 to 1962 where the United Nations emphasized on securing
the rights to equality and position of women, the legally trying to emphasize on these aspects
with the establishment of the Commission of Human Rights, the Commission on the status
of women and the Universal Declaration of Human Rights being prominent amongst them. During the period 1963 to 75 onwards the different
governments, the different states try to respond to this call of the United Nations and in
this process they try to frame laws, policies and programs which try to ensure these human
rights or this opposition of women and there were different declarations on elimination
of discrimination against women are then they were the, there was the International Women’s
year declared in 1975 etc . During the period 1976 to 85 there were the
very important convention which was passed popularly known as CEDAW, the Convention on
elimination whole forms of discrimination against women. There are various world conferences which
were established they all try to read emphasis the concept of women’s rights and violence
against women and they planned a series of action programs for the different states whereby
such rights can be established in the States. And they are after from 1986 onwards there
has been the continued process or the continued efforts which have continued by the different
bodies in order to strengthen the position of women through institutional means and through
support for women’s rights. So therefore the United Nations has played
a key role in the process and we will try to in the coming slides we will try to see
what has been you know the various types of declarations, conventions what they have tried
to establish, what they have tried to the obligations, they have tried to impose on
the states. And in this process further the position of
women. Now to start with the International Development,
if we see the preamble of the United Nations 1945 it reaffirms of faith in fundamental
human rights, in the dignity and worth of the human person, in the Equal Rights of men
and women and of Nations large and small, so that is what the preamble lays down and
this development we must say of women’s rights has been under the umbrella of human rights,
where human rights and fundamental freedoms have been seen as key to the development of
women in society and therefore the United Nation affirms that there must be the dignity
and worth of human persons and all women and men in society are entitled to equal rights. The Universal Declaration of Human Rights
1948 is one of the key instruments in laying down the rights of women the human rights
of men and women which cannot be denied to any person. Now these are certain basic rights which are
so inherently laid down in the nature, in the human nature of a person that denial of
this right somewhere denies the humaneness or the humanity which is there in a person. So somewhere the Universal Declaration of
Human Rights went on to establish and confirm those basic human rights which are important
for the very existence of men and women in society. So what it lays down is that all human beings
are born free and equal in dignity and rights, they are endowed with reason and conscience
and should act towards one another in a spirit of brotherhood. So that is article 1 of the UDHR which says
all human beings it does not make any distinction because there does not exist any difference
between any groups or categories based on class, caste, sex excetra. So all are free, all are equal and they have
the same rights they are insured they must be insured the same rights which they can
enjoy with dignity and everyone should act towards one another in a spirit of brotherhood,
in a sense that violations of rights extra should not find any place because everyone
has a right to live in the society. Everyone is entitled to all the rights and
freedoms without distinction of any kind such as race, color, sex, language, religion so
that was article 2 which says that the rights and freedoms cannot be differentiated and
such the basis of such differentiation cannot be race, color, sex, language religion. So sex is one of the categories which is mentioned
there in, so therefore meaning that just because somebody is a woman, just because somebody
is a girl the rights and freedoms cannot be denied to such person based on the sex of
that person. And so is also true with regard to other differences
which may be there. Everyone has a right to life, liberty and
security of a person which is article 3 of the UDHR. All are equal before the law and are entitled
without any discrimination to equal protection of the law, so article 7. So these are some of the key articles which
are there of the UDHR which ensures the basic aspects which are important for living in
society, living with dignity and with respect in society. So everyone is equal, everyone has a right
to life, everyone has the necessary liberty to express themselves, to express their choices,
their freedoms in whatever they do and there must be equality before the law, the law must
be same for everybody and there should not be any difference in terms of any race, color,
group, caste, class, sex excetra with regards to the application of the law and the law
should not discriminate amongst people so all are entitled to equal protection of the
law. So if it is a man or it is a woman or if it
is some other differentiation between groups of people in terms of language extra the law
cannot afford to operate differently to these different categories. So somewhere the Universal Declaration of
Human Rights re-emphasized the basic notions of a human rights and the basic notion of
Rights which are essential for living in society and living with dignity and respect. Following the UDHR there were two other important
instruments which were passed and that is the International Covenant on Civil and Political
Rights 1966, and then came the International Covenant on economic political and cultural
rights of 1966. Both of these again went on to re-emphasize
the issue of human rights. The various rights which all are entitled
to specially the equal rights of men and women, to the enjoyment of civil and political rights,
enjoyment of economic social and cultural rights as we have said previously earlier
in many nations women were not given the right to vote, so that is one of the essential political
rights of civil right which is there and which cannot be denied to a woman simply because
she belongs to a different sex. So therefore everyone is entitled to the enjoyment
of all political rights and civil rights and the same is true with regard to economic,
social and cultural rights. In this regard there was one of the conventions
on political rights of women 1953 which specifically women went on to mention that women shall
be entitled to vote in all elections, women are also eligible to fight elections they
will be entitled to hold public office and exercise all public functions. Now one thing it may be mentioned that these
are most natural and something which must be taken as naturally existing in society,
but the fact that these are not made available or these are denied to one group of people
makes it necessary to emphatically establish it by way of these rights, these conventions
or by way of laws in the entire process. In a sense what is meant is that men and women
are equal that their right to life without dignity is not something which means a special
mention. All being human beings living in society are
entitled to all that which is important for the peaceful and enjoyable existence of that
person in society, so it is but natural that they must have a right life, they must have
a right to freedom, they must have a right to exercise choices extra. However the fact that the society denies you
know all classes of people or many or certain classes of people these basic rights whereby
it requires a specific mention and that is the significance of these international instruments,
declarations excetra which have gone on to re-emphasize that establish that. And specifically make it out that it is something
which is naturally there and they should be, it should be insured and guaranteed to them
and there cannot be nobody can make any difference in that regard, so therefore the 1953 convention
went onto specifically hold that you can vote, you can vote in elections you can fight in
elections, you can hold public offices which are but only natural that all can be entitled
to do so. But the very fact that women have for long
being denied that which makes it necessary that there must be a special mention and the
special mention obligating state parties to ensure that necessary changes are brought
in the process whereby women are made a part of the entire political process and we are
not left out of that. Then came one of the very important declarations
which was a declaration on the elimination of discrimination against women in 1967, this
was adopted in 1967 and in this declaration there was an effort to highlight the fact
that some where discrimination against women was a continued you know was a continuing
thing in society and a reality in society and even though efforts were made by the UDHR
and ICCPR etc. Some where women were being discriminated
against they were being their rights were being denied at various levels and therefore
the declaration tried to draw attention to certain aspects which were continuing in society,
certain practices which were continuing in society and thereby take appropriate measures
to ensure that those practices, those denial of rights can be effectively addressed. So appropriate measures towards ensuring the
right without discrimination on grounds of marital status to any work, to free choice
of profession and employment, the right to equal remuneration, the right to live with
pay retirement privileges and provision for security in respect of unemployment, sickness,
old age excetra, the right to receive family allowances in equal terms with men, so these
were some of the areas apart from many others where the United Nations or the International
body wanted to draw the attention of the state bodies. So it is very important that there must be
adequate opportunities for women to take part in the economic process so to pursue professions,
to pursue different employment and to ensure that in the process of pursuing a particular
profession or in employment in a particular area all are rights in as guaranteed to all
other people all are rights benefits privileges must be the same as for any others if not
more that is where they try to speak of the equal remuneration where which as we have
seen previously. Even today is not a reality when it comes
to India, even though apparently we have the laws we have somewhere policies in place which
tries to assure that or ensure that there are no differences in terms of the salary
structure, in terms of the benefits privileges you know retirement privileges and other benefits
which are made available. In the basic salary structure itself many
times it is seen that women are received much less than their male counterparts, in terms
of promotion it is seen that women are less preferred than their male counterparts, in
terms of providing responsibilities at the workplace it is said that men are women are
less believed than their male counterparts, so therefore the declaration when it says
that there must be equality in terms of employment opportunities. In terms of choice of professions if somewhere
hints that there should not be any sort of a discriminatory approach or attitude only
part of these states or only part of the different you know employers in with regard to women
and when it comes to women versus men in the workplace it must be on the same standards
of equality that they must be judged not on the basis of the fact that one is a woman
or one is a man. So similarly family allowances or other allowances
which are allowed to women leaves which are allowed to men and women there somewhere should
be a sort of a similar treatment which is given out to them. So that was the Declaration on the elimination
of discrimination against women 1967. Now then came in 1979 one of the most important
steps with regard to the issue of discrimination against women and that is somewhere seen to
be an international bill of rights for women, because it went on to address the various
issues at an international level highlight the responsibilities of the state bring in
specific obligations of the state parties with regard to the various, responsibilities
they were to discharge and that has that made a significant difference or try to re-emphasize
the position and rights of women in society and state. And this was adopted by the United Nations
General Assembly in 1979 and the same has been ratified by India in 1993, so India is
a part of this Convention on elimination of all forms of discrimination against women
which we popularly referred to as the CEDAW. Now CEDAW went on to define this concept of
discrimination when we say that women are discriminated against what is that which is
meant, so the convention went on to specify the concept of discrimination that discrimination
refers to distinction, exclusion, restriction which is made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women. Irrespective of their marital status on a
basis of equality of men and women of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field. So when we are speaking of the term discrimination
it stands for a sort of a distinction which is made or a sort of exclusion which is made
or a restriction which is made between the sexes and that goes into the denial of Rights
or impairing the enjoyment of Rights which are which should naturally belong to women
or which should naturally be available to men and women and that constitutes our denial
of the human rights and fundamental freedoms in one or the other field. So any sort of a distinction exclusion or
restriction based on sex and which tries to effect or which tries to interfere with the
recognition of Rights by women, of women is to be understood as the notion of discrimination. So the efforts of the these convention will
try to understand what were the type of obligations which were imposed on the state and there
after the other international stripes which have been taken we will try to address in
the next lecture.

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