Judiciary and its stand on Gender Equality (Transformative Constitutionalism)

image description

When the Prime Minister, Mr. Narendra Damodardas Modi announced the list of his cabinet ministers, it included seven women ministers out of which six were given the cabinet rank. Mrs. Nirmala Sitharaman became the first woman full-time finance minister. And this is not the first time she was given a position sought and held only by men. In the year 2017 when Mr. Manohar Parrikar stepped down from the post of the then defense minister to take over the chief ministership of Goa, Mrs. Sitharaman became the first woman full-time defense minister in the history of India (Mrs. Indira Gandhi held the additional charge of both the ministries- defense and finance while being the Prime Minister of India). From the opening of the Gender park in Kerala to having universities offering gender studies as a subject to the project named Gender Taxis the taxi service owned and operated by the trans gender community, India has come a long way. But there still exists a long battle of gender justice which has to be fought.

The terms “gender” and “sex” are used interchangeably in our day to day life. According to the sociologists, “sex” refers to the biological and physiological characteristics, the physical differences between a male and a female whereas “gender” refers to the social factors like values, perceptions, beliefs and attitude. And since we often get confused between the two, gender justice and gender equality is still a burning issue around the world. One of the major problems in promoting gender equality is the accepted bias which has prevented the sub-ordinate class to recognize their rights. The rights which are enshrined in the Constitution of India in its Preamble, Fundamental Rights, Fundamental Duties.

The stands taken by the Indian Judiciary in recent years to fight for gender justice have been the steps through invisible barriers to progression and it started with the Mohd. Ahmad Khan Vs. Shah Bano Begum in the year 1985 where the supreme court passed the Muslim Women (Protection of Rights on Divorce Act), 1986. Shah Bano Begum was granted maintenance under Section 125 of Cr.PC. This proved to be a landmark Judgment which was quoted and referred to in various following judgements like Daniall Latifi and anr Vs. Union of India (2001) in which the supreme court held that if the wife is able to maintain herself the husbands liability to provide maintenance for her ceases with the expiration of the iddat period but if she is unable to maintain herself after the period of iddat, she is entitled to have a recourse to Section 125 Cr.PC. Thus the contention of this recourse being in violation with the Muslim Personal Law was dismissed and the court decided that there exists no conflict between the two. The apex court further explained the rationale by saying that Section 125 Cr.PC is a provision in furtherance of the concept of social justice embodied in Article 21 of the Constitution of India. Then in the year 2017 came the most famous judgment of Shayara Bano Vs. Union Of India popularly known as the Triple Talaaq judgement in which the supreme court answered the most crucial question - whether under a secular Constitution, women could be discriminated against, only on the account of their religious identity? It was then asserted that women belonging to any particular religion cannot suffer an inferior status in the society as compared to the women professing some other religion. Thus in this judgement the court pointed out the fundamental right to quality and the concept of gender equality, guaranteed to every citizen under Article 14 of the Constitution, must include equality amongst women of different religions. It was also held that the right of a woman to human dignity, social esteem and self-worth are the vital facets of the right to life under Article 21. Thus on these lines triple talaaq was criminalized making it one of the groundbreaking judgements of all times.

Another remarkable judgment was pronounced on the 6th of September 2018. Supreme court on the lines of Johann Wolfgang von Goethe- “I am what I am, so take me as I am” and similarly on the lines of Arthur Schopenhauer – “No one can escape from their individuality” partially struck down a 157 year old legislation I.e. Section 377 of the Indian Penal Code on the grounds that it violates Article 14, 19 and 21 of the Constitution, commonly referred to as the Holy Trinity or the Golden Triangle. In Navtej Singh Johar and ors Vs. Union of India, the supreme court applied the twin test to determine the constitutionality of Section 377- the classification test and the arbitrariness test and found out that there is no reasonable nexus between the discrimination of people on the basis of their core trait as an individual and the legislation imposed by the section 377. The court also found that Section 377 violates the right to life with dignity guaranteed under Article 21 of the members of the LGBTQI community. The judges also found that this particular section is violative of the right to freedom of expression under Article 19(1)(a). Hence they partially struck down the provision as far as it applies to the consensual sexual intercourse between adults. Thus the battle which started with Naz Foundation Vs. Government of NCT of Delhi and Ors. and Suresh Kumar Koushal Vs. Naz Foundation and was half won.

An extraordinary example of the stand taken by the judiciary which was aimed to change our society into an egalitarian democracy was in the judgment of Indian Young Lawyers Association Vs. State of Kerala. The court observed that the women are glorified as goddesses one hand and are imposed on by a lot of rigorous sanctions in the matters of devotion on the other. They further observed that faith and religion do not give birth to discrimination but religious practices are sometimes seen as perpetuating patriarchy and therefore the basic tenets of faith and of gender equality and rights are negated. It was asserted that Article 25 is applicable to both men and women and hence devotion cannot be subjected to gender discrimination. Thus by removing the ban on the entry of women between the age of 10 and 50 years of age the court contested that women is not lesser or inferior to man and biological or physiological reasons cannot be accepted in freedom of faith and religion.

Finally by striking down a 158 year old law of adultery (Section 497) the court proved its stance for transformative constitutionalism. The apex court in the judgment of Joseph Shine Vs. Union of India asserted that the binding nature of a precedent should not come in between the perpetual shift in society and the normative changes in the arenas of law. The court observed that the offence of adultery as defined in the Section 497 can only be committed by a man and not by a woman which shows the prejudice that women can only be a victim and has no authority to be a consensual participant. Thus this archaic law did not consider woman of making choices and rendered no respect for their sexual autonomy and hence the judiciary decided to get done with it. The court mentioned that the law in adultery is a codified rule of patriarchy and it is time to say that the husband is not the master of his wife.

It can be seen through the course of all these judgments that the stands taken by the judiciary, though some criticized, are towards the concept of transformative constitutionalism because any discrimination or inequality invites the wrath of the Constitution. Since our Constitution includes ‘I’, ‘you’ and ‘we’ it is the duty of the judiciary to maintain the inclusiveness, compassion and sensitivity of Constitution and the judiciary does so by applying the parameters of the Fundamental Rights and thus also ensures that an individual’s dignity has a sanctified realm in a civilized society.