9 Jan 2023 5:15 AM GMT
In today’s turbulent times where women’s rights are constantly questioned in places like Iran or in the USA where the Supreme Court itself sanctions a violation of women’s right to abortion, the role of the judiciary as the custodian of rights becomes important. When a woman steps into the halls of justice, she is met with stares and glares from the onlookers and faces harassment...
In today’s turbulent times where women’s rights are constantly questioned in places like Iran or in the USA where the Supreme Court itself sanctions a violation of women’s right to abortion, the role of the judiciary as the custodian of rights becomes important. When a woman steps into the halls of justice, she is met with stares and glares from the onlookers and faces harassment due to the overwhelming sense of male hegemony in the court system. There arises a need for the judiciary to look within its walls to see where the problem arises.
The office of the Chief Justice of India holds immense authority and can help shape the attitudes of lawyers and judges alike, thus the approach of the person behind the wheel becomes cardinal.
As we celebrate our 75th Year of Independence, reflecting on the kind of India we have become, where freedom fighters have glorified the ‘mata’ and personified the motherland as Bharat Mata, it is important to give women a place in a transformative institution, this article looking at the current CJI and his feminist outlook seeks to provide an answer to the impending ‘women question’
The current CJI, at multiple forums, has highlighted the need to incorporate feminism into the law and shape judicial attitudes.
Justice Chandrachud recently spoke about the rule of law and how it needs to be understood to become a defence against oppressive structures like patriarchy, casteism,and ableism. He remarked that his feminist perspective came from dealing with matters where women were subjected to the worst of crimes and instances of his interaction with his female colleagues. At another event, the CJI observed that the concept of a universal adult franchise was a revolutionary act introduced to undo centuries of oppression faced by women. The reservation for women allowed them to shape their destinies.
Quoting the Beatles, the CJI said “The Beatles famously sang ‘All you need is love, love; Love is all you need’. At the risk of ruffling the feathers of music aficionados everywhere, I take the liberty to disagree with them and say – perhaps we need a little more than love,” The CJI observed that mere decriminalisation of homosexuality was not enough, and structural as well as attitudinal changes in all spheres of life were required.
The CJI has called for ensuring both procedural and substantive equality by applying feminist principles in terms of outcome and reasoning. He said ``The first thing that the judge needs to understand is that the law does not simply operate on pre-existing gender realities but the law contributes to the construction of those realities."
India finally has a CJI who is modern, aware of the grass-root realities and a staunch supporter of Constitutional values and democracy. India finally hopes for a better judiciary with DY Chandrachud as its anchor.
But Why Focus On The Judges?
This enquiry demands that one must understand why the bare text of the Constitution is not enough to bring change.
Though the Constituent Assembly had barely fifteen women who were outspoken on subjects like affirmative action for women, Begum Aziz Rasul had said, “Reservation is a self-destructive weapon” and Renuka Ray had stated that women were equally capable of competing. Women stalwarts like Hansa Mehta argued that primacy must be given to the autonomy of women over personal laws that discriminate.
However, their aspirations did not completely meet the ink of the Constitution, due to the existence of male hegemony where members like KV Kamath had a sexist outlook when he stated that “…. (in affairs of governance)… where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons” Added to this was the pressure from social groups for the preservation of the personal laws discriminating against women.
Though the Constitution provides for equality under 14, a bare reading of 15 dilutes that equality by providing for positive discrimination for women and also carving an exception to discrimination if it is not solely on the grounds of sex. Thus relegating women to an inferior position to that of men.
Therefore, the role of the judiciary becomes important in interpreting and developing rights which serve the aspirations of women and it has stood up to its task through various landmark judgements like Anuj Garg, and Navtej Singh Johar.
Cases Reflecting The Ideals Of The Chief Justice Of India
Since the judiciary at its core revolves around judges, their conceptions and beliefs do significantly influence how the issues before them are adjudicated, thus looking at the cases decided previously by Justice Chandrachud provides some insight as to his approach towards feminism going ahead as the new Chief Justice of India.
In Ashish Kumar Mishra vsBharat Sarkar, J, Chandrachud observed that the transgender community had the right to avail of food security benefits using ration cards. J. Chandrachud in his celebrated judgement, in the case of Navtej Singh Johar vs UOI, decriminalised homosexuality and held it to be violative of Article 14. While decriminalising adultery in Joseph Shine vs UOI, Chandrachud observed that the social and cultural lives of women had been dominated by anachronistic concepts of "chastity" and "honour," robbing them of the protections for their privacy and dignity provided by the Constitution and reducing them to nothing more than passive objects at the whim of males.
The current CJI had advocated for a female’s right to marry the partner of her choice against the will of her parents in the case of Shafin Jahan vs Ashokan K.M.
In Indian Young Lawyers’Association vs State of Kerala, J. Chandrachud observed that the quest for equality and fraternity would lose all of its meaning if women were still viewed as inferior beings when they used their rights to religion, belief, and worship.
He provided for the right to abortion to unmarried women, thus expanding the scope of the Medical Termination of Pregnancy Act, under 3(B) in the famous case of X vs The PrincipleSecretary Health and Family Welfare.
The bench of which Justice Chandrachud was a part In State of Jarkhand vs Shailendra Kumar Rai, held that the two-finger test is irrelevant for the purpose of evidence to prove rape under section 375. J Chandrachud also stated that it was patriarchal and sexist to suggest that a woman cannot be believed when she says that she was raped, merely because she is sexually active. In Patan wali vs State ofAndhra Pradesh, he propounded that there must be an intersectional analysis of such cases, which requires one to see the distinct experiences that women have to undergo because of their different identities.
Examining the stereotypes of the familial role and physiological inferiority and countering them by recognizing the laurels women bought in the armed forces, J. Chandrachud allowed women to be granted permanent commission in the army in Secretary,Ministry of Defence vs Babita Puniya.
A Brighter And Egalitarian Future
Due to patriarchal notions of gender roles and discrimination, women are reluctant to join the judiciary. Adding to that there is no basic infrastructure like female restrooms or childcare facilities.
As per KHOJ, less than 8% of High Court judges in the last 25 years have been women and more than half of the present High Courts have never had a woman Chief Justice.
Since the former Chief Justice KG Balakrishnan retired from the Supreme Court in 2010, there has not been a Dalit Chief Justice of India.
The CJI had remarked that there was an increase in the number of women lawyers arguing dauntlessly in the online courts during the pandemic. This scene was not this frequent in the offline courts as the offline courts were governed by male hegemony. Thus, a tech-based ecosystem can be strengthened, which is accessible to women.
He has also pushed for having a greater sense of inclusion in the judiciary on the grounds of diversity to assess women lawyers and talked about the need to change the yardsticks for assessing the introduction of people into the judiciary. As per the CJI, a stereotypical perception exists of how a man and a woman should be. Women are labelled as being aggressive but at the same time, it is normal for a man to be aggressive as women are expected to be graceful, submissive and compromising while arguing. This difference in the gender roles in the judiciary paves the way for subtle gender discrimination.
In terms of holistic equality, a plea is being heard to legalise same-sex marriages by the Supreme Court.
Recently Rohin Bhatt, a queer SC lawyer, sought the introduction of an additional column in the slip for writing people’s pronouns so that they may be correctly used in the court’s orders and judgments.
Justice B.V. Nagarathna, who was appointed to the Supreme Court, is likely to be the first woman Chief Justice of India in 2027. Furthermore, the Collegium has recommended the name of Saurabh Kirpal, an openly gay lawyer for elevation to the Supreme Court.
The Way Forward
Judges have perpetuated gender-biased ideas of the morality of Indian women by their observations. In State v.Sushil Kumar, the court disapproved of the behaviour of young women who “explore the greener pastures of bodily pleasure” When judges agree to reconcile the rapist and the victim through compromise marriages, they reflect their conservative and misogynistic mindset. Insensitivity is shown when judges refuse to acknowledge the changed circumstances of cases when delivering judgments and rely on colonial notions of patriarchy and chauvinism. Judges need to have a transformative approach that accepts biological differences between men and women but at the same time works to ensure substantive equality between the two sexes. Precedent has been set by the Madras High court judge who acknowledged the need for sensitisation and issued orders in furtherance of the same.
A world in need of feminism and gender-neutral laws finds a beacon of modern thinking in the current CJI. His views on sexual autonomy, feminist jurisprudence, and substantive justice resound far and wide and sow seeds of hope for a more inclusive and feminist judiciary.
Views are personal.