Justice and the Nature and Scope of Gender Justice

1. Meaning of Justice

The term justice is derived from the Latin word justitia (or jus), meaning "right," "law," or "that which is just." In its broadest sense, justice means giving to every person what is due to them — treating equals equally and unequals unequally in proportion to their relevant differences. It is the quality of being fair, impartial, and morally right in the distribution of benefits, burdens, and punishments in society.

Justice is both a legal and a moral concept. Legally, it refers to the fair and impartial administration of law by the state. Morally and philosophically, it refers to the ideal of a just society in which every individual gets their rightful share of rights, opportunities, and resources.

Definitions

• Aristotle: Justice is the virtue by which each person receives what is proportionate to their merit — "the greatest of all virtues."
• Ulpian (Roman jurist): "Justice is the constant and perpetual will to render to each one his due."
• John Rawls: Justice is the "first virtue of social institutions," achieved through fairness and equality of opportunity.
• Salmond: Justice means the enforcement of rights and the redress of wrongs according to law.

Kinds of Justice

1. Distributive Justice — fair allocation of society's benefits and burdens (wealth, opportunity, honour) according to merit or need.
2. Retributive (Corrective) Justice — punishment proportionate to the wrong committed.
3. Procedural Justice — fairness in the process by which decisions are made.
4. Social Justice — removal of inequalities and protection of the weaker sections.
5. Gender Justice — fairness and equality between men and women in all spheres of life.

2. Nature of Gender Justice

Gender justice is a distinct and evolving dimension of social justice. Its nature can be described as follows:

1. Relational and Comparative — It concerns the relative position of men and women in society, not merely the treatment of women in isolation. It asks whether women enjoy the same rights, freedoms, and opportunities as men.

2. Corrective and Transformative — It is not satisfied with formal (legal) equality alone; it seeks to correct historical and structural disadvantages through affirmative measures such as reservation, protective laws, and special programmes. It aims to transform patriarchal social norms, not just laws.

3. Multi-dimensional — Gender injustice operates simultaneously in the family, economy, polity, culture, and law. Hence gender justice must address all these spheres — domestic violence, unequal wages, denial of inheritance, under-representation in politics, and cultural stereotyping.

4. Rights-based — It is grounded in human rights, dignity, and non-discrimination. It treats women's rights as human rights, not as concessions granted by the state.

5. Dynamic and Contextual — What constitutes gender justice evolves with time, culture, and economic development. It is interpreted differently in different societies and is continuously reshaped by social movements, judicial decisions, and international standards.

6. Both Substantive and Procedural — It demands not only just outcomes (equal pay, equal inheritance) but also just processes (equal participation in decision-making).

7. Inter-sectional — Gender injustice intersects with caste, class, ethnicity, religion, and disability. A Dalit woman, for example, faces compounded disadvantage. Gender justice must therefore be sensitive to these overlapping identities.

3. Scope of Gender Justice

The scope of gender justice is wide and expanding. It covers the following areas:

(a) Legal and Constitutional Sphere

• Equality before law and equal protection of law — guaranteed by Article 18 of the Constitution of Nepal.
• Non-discrimination on the ground of sex — Article 18(2).
• Equal rights in family matters — marriage, divorce, property, and inheritance (Article 38).
• Equal pay for equal work — Article 38(4).
• Special legal protection for women, including laws on domestic violence, trafficking, sexual harassment, and rape.
• Affirmative action — 33% reservation for women in federal and provincial legislatures, and in civil service and other state bodies.

(b) Economic Sphere

• Equal access to employment, promotion, and wages.
• Right to own, inherit, and control property and assets.
• Equal access to credit, entrepreneurship, and financial services.
• Maternity benefits and safe working conditions.
• Recognition of unpaid care work and its redistribution.

(c) Social and Cultural Sphere

• Elimination of patriarchal customs such as chhaupadi, child marriage, dowry, and son-preference.
• Equal access to education, health, and nutrition.
• Freedom from gender-based violence in the home, workplace, and public space.
• Reform of discriminatory cultural and religious practices.
• Changing social attitudes and gender stereotypes through education and awareness.

(d) Political and Public Sphere

• Right to vote and to contest elections.
• Adequate representation in legislatures, executive bodies, judiciary, and civil service.
• Participation in local governance, community organisations, and decision-making bodies.
• Freedom of expression and political participation without discrimination.

(e) Family and Personal Sphere

• Equal rights in marriage, divorce, and guardianship of children.
• Right to choose one's partner and to live with dignity.
• Protection from domestic violence and marital rape.
• Equal division of household labour and care responsibilities.

(f) International Sphere

• UDHR (1948) — equal rights of men and women.
• CEDAW (1979) — comprehensive elimination of all forms of discrimination against women.
• Beijing Declaration and Platform for Action (1995) — gender mainstreaming.
• SDG 5 — achieve gender equality and empower all women and girls.
• ICESCR and ICCPR — equal enjoyment of economic, social, cultural, civil, and political rights.

(g) Institutional and Remedial Sphere

• Gender-responsive budgeting and policy-making.
• Special courts, women's cells in police stations, and legal aid for women.
• National Women Commission and similar bodies.
• Judicial activism — e.g., the Supreme Court of Nepal's decisions on inheritance rights and on chhaupadi.

4. Conclusion

Justice, in essence, is fairness — rendering to each person their due. Gender justice is that dimension of justice which seeks to end the historical and structural subordination of women and to establish genuine equality between men and women in law, economy, society, polity, and family. Its nature is relational, corrective, multi-dimensional, rights-based, and dynamic; its scope extends from the constitution and courts to the household and the mind. In Nepal, despite constitutional guarantees and progressive legislation, deep-rooted patriarchal norms continue to limit the realisation of gender justice. Hence gender justice must be pursued not only through law but also through education, economic empowerment, political participation, and sustained social transformation. Only then can justice — in its truest sense — be achieved for all.

CEDAW (Convention on the Elimination of All Forms of Discrimination against Women), adopted by the UN General Assembly on 18 December 1979 and in force since 3 September 1981, is often described as the "international bill of rights for women." Its basic features are:

1. Comprehensive definition of discrimination against women (Article 1) It defines discrimination as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, on a basis of equality with men, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. This covers both direct and indirect (effect-based) discrimination.

2. Comprehensive scope covering all fields of life Unlike earlier instruments dealing only with political rights (e.g., the 1952 Political Rights of Women Convention), CEDAW covers political, economic, social, cultural and civil rights, and also private life — family relations, marriage, motherhood and violence in the home.

3. Three-fold obligation on States Parties States must (a) incorporate the principle of equality of men and women into their legal system and abolish discriminatory laws; (b) adopt legal and other measures, including sanctions, to prohibit discrimination; and (c) establish legal protection of women's rights through tribunals and other public institutions (Articles 2, 3).

4. Substantive (de facto) equality, not merely formal equality It requires equality of result, not just equality in law. Temporary special measures (affirmative action) aimed at accelerating de facto equality are permitted and are not considered discrimination (Article 4(1)).

5. Prohibition of discrimination in public and private spheres Article 2(e) obliges states to eliminate discrimination by "any person, organization or enterprise," thereby reaching private actors — a departure from the traditional view that human rights bind only the state.

6. Specific substantive guarantees

• Political and public life: right to vote, hold office and participate in public affairs (Article 7); representation at international level (Article 8); nationality rights (Article 9).
• Education (Article 10), employment (Article 11), health including family planning (Article 12), and economic and social benefits (Article 13).
• Rural women (Article 14) — a unique provision recognising their special problems.
• Equality before the law, and equal capacity in civil and family matters (Article 15).
• Marriage and family relations: free consent, equal rights and responsibilities, equal guardianship, equal property rights (Article 16).

7. Prohibition of trafficking and exploitation of prostitution (Article 6) States must suppress all forms of traffic in women and exploitation of prostitution.

8. Establishment of a monitoring mechanism — the CEDAW Committee (Articles 17–22) A committee of 23 independent experts examines periodic reports submitted by states (initially within one year, then every four years). It may make suggestions and general recommendations. The Committee has also issued authoritative General Recommendations (e.g., GR 19 on violence against women, GR 30 on conflict and post-conflict situations).

9. Optional Protocol (1999) Provides for individual communications and an inquiry procedure, allowing women to complain directly to the Committee after exhausting domestic remedies. It entered into force in 2000.

10. Reservation clause (Article 28) Reservations incompatible with the object and purpose of the Convention are not permitted, though many states have entered wide reservations (e.g., on Article 16), which weakens the Convention in practice.

11. No provision for derogation Unlike the ICCPR, CEDAW contains no derogation clause; states cannot suspend their obligations even in emergencies.

12. Monitoring through reporting, not individual petition in the original text The original Convention relies on a reporting system; enforcement is therefore largely dependent on state will and international pressure.

Conclusion CEDAW is the most comprehensive and legally binding international instrument on women's rights. Its distinctive features — a broad definition of discrimination, coverage of private and family life, commitment to substantive equality, and a monitoring committee — make it a landmark in the progressive development of international human rights law.

Rights and Duties of Family Members

Introduction

The family is the fundamental unit of society. In Nepal, the National Civil Code, 2074 (2017) and the National Civil Procedure Code, 2074 govern family relations. The Muluki Civil Code provisions on family law lay down the rights and duties of family members. The concept of family rights and duties is based on the principle that every member of a family has certain entitlements and corresponding obligations toward one another.

Meaning of Family

A family consists of a husband, wife, and their children, and may include other dependent members such as parents, grandparents, and unmarried or dependent siblings living together as a single household unit. Under the National Civil Code, 2074, the concept of a joint family (sanyukta parivar) refers to a family in which members jointly own and enjoy ancestral property, and an undivided family (ayukta parivar) refers to a family that has not yet partitioned its joint property.

Rights of Family Members

1. Right to Maintenance (Support)

• Every member has the right to be maintained by the family according to its economic capacity.
• Husband and wife are mutually obligated to maintain each other.
• Parents are duty-bound to maintain their minor children.
• Children are obligated to maintain their aged, infirm, or dependent parents.
• A wife is entitled to maintenance from her husband, and vice versa, if one is unable to support themselves.
• Under Section 100 of the National Civil Code, 2074, a person who is unable to maintain himself/herself may claim maintenance from a person who is legally obliged to maintain him/her.

2. Right to Property

• Right to ancestral property: Sons and daughters have equal rights to ancestral property by birth under the Civil Code, 2074.
• Right to partition: Every coparcener has the right to demand partition of joint family property.
• Right to residence: Every family member has the right to reside in the family home.
• Wife's right: A wife has the right to reside in the husband's house and to a share in property as per law.
• Under Section 76 of the National Civil Code, 2074, sons and daughters have equal rights to ancestral property, and a daughter retains her right to ancestral property even after marriage.

3. Right to Education and Health

• Children have the right to education, health care, and proper upbringing.
• Parents must provide for the education and health needs of their children.
• The Children's Act, 2075 guarantees children's rights to education, health, and proper care.

4. Right to Equality and Dignity

• No family member shall be discriminated against on the basis of sex, caste, or religion.
• Every member has the right to live with dignity and to be free from domestic violence under the Domestic Violence (Offence and Punishment) Act, 2066.
• The Constitution of Nepal, 2072 guarantees the right to equality (Article 18) and the right against exploitation (Article 29).

5. Right to Succession

• Legal heirs have the right to inherit property upon the death of a family member.
• The Civil Code, 2074 provides for equal inheritance rights to sons and daughters.
• Under Section 76 and related provisions, the order of succession is: first the spouse and children, then parents, then grandparents, and so on.

6. Right to Marital Relations

• Husband and wife have mutual rights to companionship, affection, and marital relations.
• Both have the right to dissolve the marriage under legally recognized grounds as provided in the National Civil Code, 2074.
• Either spouse may claim divorce on grounds such as adultery, desertion, cruelty, or mutual consent.

Duties of Family Members

1. Duty to Maintain

• Husband's duty: To maintain his wife and children.
• Wife's duty: To maintain her husband and children.
• Children's duty: To maintain their aged or dependent parents.
• Parents' duty: To maintain their minor children.
• Under Section 100 of the National Civil Code, 2074, the following persons are mutually obligated to maintain each other: husband and wife; father and mother and their children; and grandparents and grandchildren.

2. Duty of Care and Protection

• Parents must protect and care for their children's physical, mental, and moral development.
• Family members must care for the sick, aged, and disabled members.
• Under the Children's Act, 2075, parents and guardians have the duty to protect children from all forms of exploitation and abuse.

3. Duty to Provide Education

• Parents are obligated to provide education to their children as per their capacity.
• The Right to Education Act, 2075 and the Constitution of Nepal, 2072 (Article 31) guarantee the right to education, with corresponding duties on parents and the State.

4. Duty of Mutual Respect and Cooperation

• Members must respect each other's rights and cooperate in household affairs.
• Husband and wife must treat each other with equality and respect.
• The National Civil Code, 2074 emphasizes the principle of equality between husband and wife in marital relations.

5. Duty Regarding Property

• Members must not misappropriate or waste joint family property.
• They must contribute to family expenses according to their capacity.
• Under Section 88 of the National Civil Code, 2074, a coparcener who causes loss to joint family property may be liable for compensation.

6. Duty to Perform Religious and Social Obligations

• Family members are expected to perform religious rites and social duties as per tradition.
• The Civil Code, 2074 recognizes the duty to perform funeral rites and other religious obligations.

Legal Provisions in Nepal

Conclusion

The rights and duties of family members are complementary and interdependent. Rights without duties would lead to chaos, while duties without rights would lead to oppression. The legal framework in Nepal recognizes this balance by granting equal rights to all members—especially sons and daughters in property matters—while imposing corresponding duties of maintenance, care, and respect. A harmonious family is one where every member enjoys their rights and fulfills their duties in equal measure.

Various Forms of Domestic Violence

Domestic violence refers to any act of physical, sexual, psychological, or economic abuse committed by one family member against another within a domestic relationship. In Nepal, the Domestic Violence (Crime and Punishment) Act, 2066 (2009) defines domestic violence broadly and recognises several forms. These are discussed below:

1. Physical Violence This is the most visible form. It includes beating, slapping, punching, kicking, burning, choking, pushing, or using a weapon to cause bodily injury or pain. Acts that endanger the life, health, or physical safety of a person fall under this category. In Nepal, practices such as kasaudi (beating with sticks) and physical torture for dowry are common examples.

2. Sexual Violence Sexual violence covers any sexual act committed without consent within the domestic relationship. It includes marital rape, forced sexual intercourse, sexual harassment, forcing a person to watch or engage in obscene acts, and denying or forcing sexual contact. The Act recognises sexual abuse as a form of domestic violence even when the parties are married.

3. Psychological or Emotional Violence This form causes mental pain, fear, or trauma rather than physical injury. It includes threats, intimidation, humiliation, verbal abuse, insulting behaviour, constant criticism, isolating the victim from family and friends, and creating an environment of fear. Such violence damages the victim's self-esteem and mental health.

4. Economic Violence Economic violence involves controlling or denying a person's financial resources to keep them dependent and powerless. It includes preventing a person from working or earning, forcibly taking away income or property, denying basic needs such as food, clothing, and medicine, and refusing to pay maintenance. In Nepal, depriving a wife or family member of property rights also falls in this category.

5. Social and Cultural Violence This includes practices that violate a person's social dignity and rights within the family or community. Examples are accusations of witchcraft (boksi), forced marriage, child marriage, dowry-related harassment, polygamy, and discrimination based on caste, gender, or religion within the household. These practices are often justified in the name of tradition or culture.

6. Verbal Violence Verbal violence consists of abusive language, shouting, name-calling, threats of harm, and derogatory remarks aimed at degrading the victim. Though it leaves no physical mark, it is a recognised form of domestic violence because it harms the victim's dignity and mental well-being.

7. Harassment and Stalking Persistent following, unwanted communication, surveillance, or repeated attempts to contact a person against their will within a domestic setting also amount to domestic violence. This form restricts the victim's freedom and creates a sense of insecurity.

Conclusion

Domestic violence is not limited to physical beating; it takes physical, sexual, psychological, economic, social, cultural, verbal, and other forms. The Domestic Violence Act, 2066 recognises these multiple forms and provides for punishment and protection to victims. Understanding these forms is essential because many victims suffer silently from non-physical abuse, which is equally harmful and must be addressed by law and society.

Short Notes (any three)

a) Meaning of Inclusive Justice

Inclusive justice means a system of justice that ensures equal access to rights, opportunities and legal remedies for all sections of society, including those historically excluded on the basis of caste, ethnicity, gender, religion, language, disability or economic status. It rests on the idea that formal equality before the law is not enough; the State must take special measures (positive discrimination/affirmative action) to bring marginalized groups into the mainstream.

Its main features are:

• Equal participation of all groups in political, economic, social and cultural life.
• Accessibility of courts, legal aid, and grievance mechanisms to the poor and marginalized.
• Recognition of difference — treating unequals unequally to achieve real equality.
• Redistribution of resources, opportunities and power.

In Nepal, inclusive justice is reflected in Articles 18 (right to equality), 24 (right against untouchability), 38 (rights of women), 40 (rights of Dalits), 42 (right to social justice) and 43 (right to social security) of the Constitution of Nepal, 2072, as well as in reservation provisions in education, employment and representation. Thus inclusive justice aims at a just society where no one is left behind.

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b) Rights of Dalit

Dalits are those communities which have historically suffered untouchability, caste-based discrimination and exclusion in Nepal. The Constitution of Nepal, 2072 and the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 (2011) guarantee and protect their rights.

Constitutional rights:

• Article 24 — Right against untouchability and caste-based discrimination: no person shall be subjected to untouchability or discrimination on grounds of caste; such acts are punishable by law and the victim is entitled to compensation.
• Article 40 — Right of Dalits: Dalits have the right to participate in all organs of the State on the basis of proportional inclusion, and to live with dignity and equality.
• Article 18 — Right to equality and prohibition of discrimination.
• Article 42 — Right to social justice, including for socially backward classes, to education, health, employment, food, housing and social security.
• Article 38 — Special protection and positive measures for women, including Dalit women.

Statutory rights:

• The 2011 Act punishes untouchability and caste-based discrimination with imprisonment and fine, and provides compensation to victims.
• Reservation (quotas) in civil service, education, and political representation.
• Right to free legal aid under the Legal Aid Act, 2054.

Remedies: complaint to police or National Dalit Commission, writ petition in the Supreme Court, and compensation. Despite these, implementation remains weak due to social prejudice and lack of awareness.

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c) Sexual Harassment

Sexual harassment means any unwelcome sexual behaviour, verbal or physical, which violates a person's dignity, privacy and bodily integrity. It includes unwelcome sexual advances, requests for sexual favours, sexually coloured remarks, showing pornography, stalking, touching, and any conduct that creates an intimidating, hostile or offensive environment.

Legal position in Nepal:

• Article 18(3) of the Constitution permits special provisions for the protection and advancement of women; Article 18(2) prohibits discrimination on grounds of sex.
• The Sexual Harassment (Offence and Punishment) Act, 2071 (2015) — the first specific law on sexual harassment in Nepal. It defines sexual harassment, makes it a criminal offence, provides for complaint, investigation, and punishment (imprisonment and fine), and protects the identity and privacy of the victim. It also requires every workplace to have a complaint and grievance mechanism.
• The Labour Act, 2074 and Civil Service Act, 2074 prohibit sexual harassment at the workplace.
• The Criminal Code, 2074 punishes sexual offences including harassment, stalking and molestation.
• Domestic Violence (Offence and Punishment) Act, 2066 (2009) covers sexual harassment within the family.

Key features: victim-friendly procedure, confidentiality, protection from retaliation, and provision for compensation. Sexual harassment is a serious violation of human rights and dignity, and the State has a duty to prevent and punish it.

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d) Rights of Third Gender

Third gender (also called LGBTIQ+ or gender and sexual minorities) refers to persons whose gender identity or sexual orientation does not conform to the traditional male–female binary. In Nepal, their rights have been recognized through constitutional, statutory and judicial developments.

Constitutional rights:

• Article 12 — citizenship; the Citizenship Act and judicial orders allow "third gender" to be recorded in citizenship certificates.
• Article 18 — right to equality and prohibition of discrimination on grounds of gender and sexual orientation.
• Article 42 — right of gender and sexual minorities to live with dignity and to get special protection from the State.

Statutory rights:

• National Identity Card and Registration Act, 2076 — allows "third gender" as a category in citizenship and identity documents.
• Civil Code, 2074 — recognizes the right to choose one's gender identity; it does not recognize same-sex or third-gender marriage.
• Criminal Code, 2074 — punishes discrimination and offences against gender and sexual minorities.

Judicial contribution: In Sunil Babu Pant v. Nepal Government (Writ No. 917 of 2064), the Supreme Court recognized the rights of LGBTIQ+ persons, ordered the State to issue citizenship certificates reflecting "third gender", and directed the formation of a committee to study same-sex marriage. This is a landmark case in South Asia. Full legalization of same-sex marriage has not yet occurred.

Remedies: complaint to the National Human Rights Commission, writ petition, and legal aid. Full implementation, however, is still incomplete.

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e) Reshma Thapa v. His Majesty's Government, Writ No. 2891 of 2058

This case is cited as a Supreme Court decision on gender equality in the citizenship law, namely the right of a Nepali woman to confer citizenship by descent on her children on an equal footing with a Nepali man.

Facts: The petitioner, Reshma Thapa, was a Nepali citizen woman. Under the Nepal Citizenship Act, 2020 (1964), citizenship by descent could be conferred on a child only through the father; a Nepali mother could not transmit citizenship to her children on the same footing as a father. She filed a writ petition challenging this discriminatory provision.

Issues:

1. Whether the citizenship law discriminated against women on the basis of sex.
2. Whether a Nepali woman has an independent right to confer citizenship by descent on her children.

Decision: The Supreme Court held that the provision was discriminatory and violative of the right to equality guaranteed by the Constitution. It directed the Government to amend the law so that a Nepali woman could transmit citizenship to her children on the same footing as a man. The Court applied the principle of substantive equality and recognised that gender-based discrimination in citizenship violates human rights.

Significance:

• It established the independent citizenship-conferring right of Nepali women.
• It influenced the Citizenship Act, 2063 and later the Constitution of Nepal, 2072 (Article 11), which provides for citizenship by descent through either parent.
• It is a leading precedent for gender justice and inclusive justice in Nepal.