Indian Judiciary Has Reaffirmed Gender Equality But It Still Has Miles To Go

For instance, the judiciary's marital rape and Hijab ban judgments, have failed to effect a significant change.

7 min read

The principle of gender equality is enshrined in the Preamble, Fundamental Rights, Fundamental Duties and Directive Principles of the Indian Constitution. 

The enshrined provisions speak volumes of the ideologies which the framers had in mind, while drafting the Constitution – paramount among them being equality and empowerment of women. 

The Preamble begins with the words WE, THE PEOPLE OF INDIA ... which includes men and women of all castes, religions, etc and makes it evident that it seeks to render equality of status and/or opportunity to every man and woman. 

On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life – 'family, succession, guardianship and employment’ –  which aim at protecting the status, rights and dignity of women. 

The Constitution of India not only grants equality to women but also empowers the State to adopt measures to neutralise the cumulative socio economic, education and political disadvantages faced by them. 

In light of International Women’s day, this piece endeavours to reflect on the constitutional rights and guarantees that women have in India.

 It focuses on the recent judicial interventions aimed at  protecting the rights of women and aims to highlight the enormous gulf between knowing one’s rights and being able to enforce them.


How the Supreme Court of India Dealt With Abortion Rights

For instance, the judiciary's marital rape and Hijab ban judgments, have failed to effect a significant change.

The decision of the US Supreme Court in Planned Parenthood v Casey signalled a concerning shift in the development of the jurisprudence around women’s rights not just in the United States, but across the world.

 In overturning the landmark Roe v Wade judgment of the US Supreme Court, Planned Parenthood refused to interpret an inherent right to abortion under the American Constitution, dealing a severe blow to the recognition of women’s autonomy and choice vis-à-vis their reproductive rights. 

Planned Parenthood was met with a swathe of criticism from jurists and legal scholars across the globe, who were quick to point out the implications and adverse ramifications of the decision for the right to abortion and bodily autonomy, all of which had been premised on the Supreme Court’s earlier decision in Roe v Wade

While the decision in Planned Parenthood stifled the jurisprudence on abortion rights, and left much to be desired in matters of bodily autonomy and reproduction, the Indian Supreme Court paved the way for such rights to be recognised and upheld via its decision in X Versus Principal Secretary, Health and Family Welfare Department, Govt of NCT Delhi (July 2022).

Recognising that all women have the right to a safe and legal abortion, the Supreme Court held that there should be no distinction between married and unmarried women when it came to abortions in the 20-24 weeks period arising out of a consensual relationship.

The Supreme Court’s decision in X v Principal Secretary has been a precursor to the judiciary’s increasing efforts in providing necessary impetus to women’s rights, and strengthening the move towards a more robust jurisprudence of such rights, built on the principles of autonomy, equality and non-discrimination. 

Have Else Have Indian Courts Upheld Women’s Rights Recently?

For instance, the judiciary's marital rape and Hijab ban judgments, have failed to effect a significant change.

The Indian judiciary has time and again come to the rescue of women by reaffirming the core value of equality and individual dignity under the Indian Constitution. Judiciary has played an active role in enforcing and strengthening the constitutional goals towards protection of the rights of women.

For instance, the Supreme Court’s decision in Col. Nitisha v Union of India (March 2021) has been a landmark decision, addressing the doctrine of indirect discrimination in the cause of women Short Service Commission (“SSC”) officers. 

This doctrine is premised on policies that use seemingly neutral terms and phrases, which indirectly discriminate against individuals belonging to a certain group or community. The role of the court, in addressing such action, is pivotal in remedying such discrimination and provide substantive justice to the oppressed group.

The court recognised the inherent discrimination in subjecting the women SSC officers to rigorous medical assessments at a later stage of their careers. These assessments were made applicable to male officers at an earlier age.

The court held that such discrimination must not just be quashed in the present case, but structural remedies must be implemented to ensure that the disadvantages faced by women officers are wholly eradicated in the future.  

The recognition of the right to dignity and bodily autonomy under Article 21 of the Constitution has also been a pillar, which the jurisprudence on women’s rights in India has banked upon.

Further, the Supreme Court’s decision in Budhadev Karmaskar v State of West Bengal (February 2011)  delved deeper into the contours of these rights, by recognising such rights in the context of sex workers, who have been castigated and oppressed due to the social stigma around their profession.

Not only did the court emphasise the recognition of the rights of sex workers, and highlighted their everyday plight, but also directed the police to treat sex workers with dignity and to not abuse them (verbally or physically).

And Assisted Women Lawyers...

It is also worth noting here that virtual hearings have been a boon for women.

Various representations written by women lawyers requesting the Supreme Court to continue the hybrid mode of hearings are testament to the fact that digital proceedings have proven to be a blessing in disguise for women of the Bar.

Digital hearings allowed them to balance competing demands of the profession and family obligations, without forsaking one for the other. With the ongoing progress in the digitalisation of the Indian Judiciary, we have high hopes that the virtual hearings are here to stay.

These instances reflect the crucial role played by the judiciary in reaffirming the core value of equality and dignity under the Indian Constitution. The concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through its entire fabric.

Protection of women from arbitrary action of the Government or the State has been very well established through  judicial precedents, which restores people’s faith in one of the strongest pillars of democracy.


But, There's a Need for More…

While the observations of the judiciary in its decisions on the constitutionality of marital rape, or the split verdict in the Hijab ban decision, have provided further impetus towards a more refined jurisprudence on women’s rights, such observations have failed to effect a significant change in social realities which women face in their lives. 

The split verdict in the Hijab verdict makes for a crucial case study in this regard. While Justice Dhulia's judgment drove home the argument on placing restrictions on educating girls and women under the garb of protecting securalism and maintaining uniform standards, Justice Gupta's judgment has rocked the boat by dismissing the appeal on the ground that the ban does not violate the provisions of the Karnataka Education Act.

The duality of opinions in the Delhi HC's case on the marital rape exception presented further evidence on how judicial opinions on the issue of women's rights does not have a singular voice or perspective.

Justice Hari Shankar's decision has placed the future of the exception in a quandry, since the decision has sparked the debate of whether the striking down of the exception should be carried out by the Court, or whether the legislature is the best institution to make such a decision - taking all social and political factors into account.

And in the absence of a uniform voice from the higher echelons of the judiciary, such decisions have failed to provide the necessary propulsion to systemic changes in the lives of women.
For instance, the judiciary's marital rape and Hijab ban judgments, have failed to effect a significant change.

The Way Ahead...

Such problems exist in as telling a manner in the legal sphere as anywhere else.

The predicament of eradicating latent and patent sexism in appointments, court procedure, existence and perpetuation of gender stereotypes surrounding women have been a constant structural barrier in breaking the glass ceiling for women in the legal profession.

It is encouraging to see the judges at the top of the judicial pyramid recognising and identifying such problems within the system, and issuing a clarion call to effectuate changes to address the inherent issues of gender-based discrimination. 

The appointment of more women judges in the higher echelons of the Union and State judiciary, the removal of structural and societal barriers to increased opportunities for women in the legal profession, and the personal journey for all of us to recognise and work on inherent gender-based biases in our daily lives is the first step towards effecting the larger change which is required in the future.

Even though we have the roadmap for women’s empowerment, we still have miles to go until we fully realise it. The journey towards empowerment can be achieved only by combined and coordinated efforts from all stakeholders.

(Tanvi Dubey is a practicing advocate in the Supreme Court of India and Sumit Chatterjee is a practicing advocate in the Karnataka High Court. The authors would also like to thank Yash Dubey and Anjali Singhvi for their contribution and assistance in research. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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