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Role of Judiciary in Promoting Gender Justice in India
Dr. Arundhati Kulkarni^1 Introduction Gender is a common term whereas gender discrimination is meant only for women, because females are the only victims of gender discrimination. It is a harsh reality that women have been ill-treated in every society for ages and India is no exception. Women are deprived of economic resources and are dependent on men for their living. Women works are often confined to domestic sphere, she had to do all house hold works, which are not recognized and unpaid. In modern times many women are coming out to work but have to shoulder the double responsibility; one she has to work where she is employed and secondly she also has to do all the house hold works, moreover, she is last to be considered and first to be fired as she is considered to be less productive than her counterpart. Her general status in the family and in the society has been low and unrecognized. In number, females are nearly 50 percent of the total population but their representation in public life is very low. Thus recognizing women’s right and believing their ability are essential for women’s empowerment and development^2. Even after so many years of modernisation and vocalisation of liberty, equality and fraternity, gender justice, still appears to be an unresolved agenda^3. Gender Justice is a concept understood differently in different cultures and different periods in history. Gender justice refers to equality between the sexes. Gender justice is a correlation of social, economic, political, environmental, cultural and educational factors; these preconditions need to be satisfied for achieving gender justice. Globally, gender justice as a cause has gained in strength over the years, as it has been realized that no state can truly progress if half of its population is held back. With the adoption of universal standards against inequality and discrimination and the evolution of a right based approach in the empowerment of woman the concept is today susceptible to judicial evaluation and judicial determination. In this process the Indian courts have played a significant role during the last five decades with the support of the liberal provisions of the (^1) Assistant Professor in Law, Government Law College, Hassan (^2) Dr. Tanzeem Fatima, Gender Justice: A Conceptual Analysis, Excellence International Journal Of Education And Research Volume 1 Issue 4, p. (^3) Ibid
constitution, with the aid of a series of a pro-woman international human rights instruments and an increasingly assertive women’s movement within and outside the country. Meaning of Gender Justice Gender justice means that no one be denied justice or discriminated only because of one’s gender. Gender justice is a human right; every woman and girl is entitled to live in dignity and in freedom, without any fear. Gender Justice is indispensable for development, poverty reduction, and is crucial to achieving human progress. Realizing it includes sharing of power and responsibility between women and men at home, in the workplace, and in the wider national and international communities^4. During the past century, despite tremendous advancements in society, women are still not treated equally and are not afforded same opportunities. They are still at the peripheries of economic, political, social and cultural rights. Almost 70 percent of the world's hungry are women. Women remain vastly under-represented in democratic institutions globally; women represent less than 10 percent of parliaments in third world countries. Gender equality outcomes in aid effectiveness are less prioritized overall. In post disaster and conflict settings, women often suffer from lack of security and are excluded from decision making processes in economic, social, and political spheres^5. The day to day life of women is most directly governed by the existing structure of the family, the patterns of which vary according to religion class and region. In Indian context the predominant position given to men in the family structure leads to discrimination against women members of the family in almost all matters that regulate their existence. The structure of the family and the social norms and values that are built around are thus completely against the democratic principles that our republic stands for. This system of gender based inequality often referred to as patriarchy, does retardation to the growth of women’s personality and affects her mentally, socially and psychologically. (^4) Available at http://policy-practice.oxfamamerica.org/work/gender-justice/, accessed on 15-05- (^5) Ibid
propounded, offended equality. Anything that was arbitrary was antithetical to the constitutional guarantee of equality.^8 In keeping with this formal understanding of equality, the clauses of Articles 15 and 16 pertaining to affirmative measures were initially interpreted by the Court as exceptions to the (allegedly formal) doctrine of equal treatment articulated within the Articles, rather than as part of the Articles' substantive doctrine of equality. Before an analysis of judicial decisions on women, it would be useful to look into the approach of the Court to the Employment provision and the Reservation Clause. Was the Reservation Clause an exception or an integral facet of the equality rule in the Employment provision? The Apex Court has affirmed in two key decisions^9 The substantive approach to equality, present from the Founding in statements of Nehru and Ambedkar, and arguably, plainly expressed in the Constitution's text, has gradually prevailed in the jurisprudence as well. Under this approach, the sections of Articles 15 and 16 pertaining to women are not exceptions, but part of the Articles articulation of an anti-hierarchical understanding of equality. In Kerala v N. M. Thomas^10 , the Supreme Court began to articulate this approach, stating: Though complete identity of equality of opportunity is impossible in this world, measures compensatory in character and which are calculated to mitigate surmountable obstacles to ensure equality of opportunity can never incur the wrath of Article 16 (1).The Supreme Court in above mentioned case and The Karmachari Sangh Case^11 has affirmed that the Reservations Clause is not an exception to the Employment Provision but is a component of the dynamic equality embodied therein. It embodies “protective equality” and merely clarifies the “substantive equality” of the Employment Provision. The jurisprudence which has evolved through decisional law views the “equality code” in the Constitution as embodied in the Equality Clause, the Supplementary Provision and the Employment Provision. The three must be harmoniously constructed. The supplementary provision and the Employment provision do not qualify or restrict the Equality Clause, but merely illuminate the “equality code” by listing the various facets of the pro-active, corrective (^8) Ajay Hasina v. Khalid Mujib, AIR 1981SC 487, E.P.Royappa v. State of Tamil Nadu, AIR, 1974 SC555, Maneka Gandhi v. Union of IndiaAIR 1978 SC 597 (^9) Kerala v. N ThomasAIR SC 490, 514 (1976) and The Karamachari Sangh Case (1981) (^10) AIR 1976SC 490 (^11) (1981)2SCR 185
and substantive equality we gave unto ourselves. The Apex Court has drawn from this integrationalist model to sustain reservations for women made under the Special Provisions Clause^12. However, It must be said that by and large, in matters of employment, Courts have been vigilant in protecting the women’s right to equality. Be it a restriction on continued employment of married women or refusal of promotion in the Indian Foreign Service on grounds of marriage,^13 the courts have zealously safeguarded equality rights whenever they related to the public domain. Gender Justice through judicial Decisions After independence, the founding fathers of the nation wanted to reform the society and were keen to establish an egalitarian society. To achieve this end, they used law as an instrument to check the gender discrimination; numbers of laws were enacted to meet this end but due to strong patriarchal mentality and unfavourable social environment they failed to accomplish their goal. The social engineering through law was not fully achieved, while some rights enshrined under the enactments were enjoyed and accepted by the society, most of them remained only in papers due to lack of public support. Many evils are still practiced against women such as bigamy, child marriages, dowry and they are harassed in one or the other way. Malnutrition and illiteracy are growing at an alarming rate; rape and molestation have become daily phenomenon, the future of the nation seems bleak with the mushrooming rate of female foeticide. The Indian Judicial System has independently and effectively intervened on the issue of women emancipation. The role of Supreme Court in gender justice can be classified into a long early period of traditionalism (1950 to 80s) and a more recent period of activism. It will be interesting to recall briefly the court’s traditional v. activist roles and what it did to gender justice or injustice. Employing traditional rules of construction the Court defeated gender justice in adjudicating challenges to bigamous marriages.. The said that marriages celebrated without proper ceremonies and in the due form cannot be recognized as marriage to sustain conviction (^12) Government of APv.Vijay Kumar, (1995) 4 SCC 520 (^13) CB Muttamma v Union of India& Ors, AIR 1979 SC 1868
However, the Court showed reluctance to assert the same activist approach and refused to invalidate discriminatory features of the customary Hindu Law of Succession.^19 On the issue of preferential right of a male to guardianship of Hindu minor, the Court found gender based inequality in Section 6(a)^20 of the Hindu Minority and guardianship Act, 1956 and invoked the provision of CEDAW and Beijing Declaration to restore gender justice. in Geetha Hariharan v Reserve Bank^21 adopting a construction that sustains the constitutionality of the provision, the court interpreted that the word 'after' should be understood as 'in the absence of’. Undoubtedly, the court's construction in this case gives a glimmer of hope that it will interpret the equality clause under the Constitution in consonance with international instruments and in tune with the recognized universal standards. In Neeraja Saraph v Jayant Saraph^22 an NRI working in the USA married an educated girl with a job in India. Initially he persuaded her to give up her job and to join him. However, after a few months he obtained a decree of nullity from a US court. The wife filed a suit for damages. The apex court while giving interim relief to the victim and pointed out die need for legislation and gave suggestions for it. On sexual harassment at work place, an activist Court openly advanced the cause of gender justice based on international human rights instruments. The Supreme Court of India, in the Vishaka case^23 , acknowledged Sexual Harassment at the workplace as a human rights violation. The Court felt that the absence of legislation should not be allowed to perpetrate gender based violence against women at workplace and laid down a series of guidelines to be observed in all institutions employing women until the legislation is enacted for this purpose. In framing the Guidelines, the Supreme Court of India placed reliance on the Convention on Elimination of All Forms of Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. The decision constitutes a land mark in gender justice development through judicial decision. (^19) Madhu Kishwar & Ors v State Of Bihar & Ors, AIR 1996 SC 1864 (^20) Section 6(a) of the Hindu Minority and Guardians Act, 1956 lays down that the guardian of a Hindu minor's person and property (other than joint-family property) in the case of a boy or unmarried girl is 'the father and after him the mother'. (^21) (1999) 2 SCC 228. (^22) 9(1994) 6 SCC 461. (^23) Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384
Maintenance is an issue on which the Court has of late has taken progressively liberal approach promotive of women’s right to equal justice. While in one case Court felt that maintenance should encompass provisions for residence^24 in another case it ruled that the Muslim Women (Protection of Rights on Divorce) Act 1986 should be interpreted beneficially in favour of Muslim women on the lines of the Shah Bano Judgement.^25 This was done even when the legislature took regressive step in denying a section of women what the secular law has provided to avoid deprivation and exploitation. The political and legal goals of a uniform civil code (UCC) are not co-terminous. The legal goals focus on the hardships suffered by women in the legal order, the discrimination against them and the achievement of a common standard of gender justice. To an equal measure the legal goals envisage simplification of laws. It may be added in parentheses that even in the United States there is a movement for the unification of laws cutting across the state boundaries. Recognising the importance of Directive Principles on Uniform Civil Code for promoting equality of women, the Court on several occasions exhorted the legislature to initiate necessary steps in realizing the object of the Directive. Besides Courts itself tried to evolve laws of different communities.^26 However on Uniform Civil Code, the Court later restrained itself stating that removal of gender discrimination in personal laws “involves issues of State policies with which Courts will not ordinarily have any concern.^27 Conclusion Thus perceived the picture which emerges of judicial performance on justice is a mixed one, an occasional activism and liberal approach followed by a quick return to traditionalism and restraint giving hope and despair intermittently. Of course given the complex social reality and the reluctance of the legislature to give what is due to women through policy changes, Courts can do very little to change the situation all of a sudden. Yet the Court has compelled change and exposed the double standards of political parties and governments in their approach to the plight of women. In whatever the judges did they invoked the spirit of constitution and the provisions (^24) 1995(5)SCALE 199 (^25) Danial Latifi & Anr. v Union Of India, 2001(7) SCC 740 (^26) Smt. Sarla Mudgal, President, v Union Of India & Ors, AIR 1995 SC 1531 (^27) AIR 1997 SC 3614
