Whenever The Question Of Equal Rights For Women Has Come Forward,The Approach Of The Courts Has Been Disappointing:Indira Jaising [NLSU Speech]

Senior Advocate Indira Jaising has recently said whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing.She was speaking on the occasion of Annual Themed Conference On "Transformative Constitutionalism: Exploring Ideas and Possibilities in Its Theory and Practice at National Law School of India University, Bangalore"While the slew of judgments in Puttuswamy, Nalsar, Shafin Jahan and Navtej Johar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day."She said nothing epitomizes this limitation of the judiciary more than its judgments in several cases relating to rights of women, starting from 1950's to the recent cases of Sabrimala and Triple Talak. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative.She said the judgments of the Supreme Court starting from the case of Narasu Appu have continuously ignored the question of gender equality on the pretext that personal law is not law within the meaning of Article 13 of the Constitution. "The ghost of Narsu Appu stalks the SC to this day and mainly on the rights of women. This stand of the court was later challenged in the cases of Mary Roy, Gita Hariharan, Shah Bano, Goolrookh, Sabrimala, and the Triple Talak but the court dodged the question. Religion remains the last frontier that woman have to cross to attain equality" Also, as was shown in the recent Triple Talak case, the Supreme Court came up with divided opinions as to why the practice of Triple Talak must be stopped. While it was held by two judges that the practice was manifestly arbitrary and unconstitutional, other Judges said it was unislamic None of the judges said it was violation of Article 15 or 21. The court relied on the doctrine of "essential practices," continuing the legitimacy of laws which are at the source of this discrimination.With regard to the Supreme Court's much-spoken about 2018 verdict in the Sabarimala Temple Entry case, she iterated, "I have been much criticised for categorising menstrual taboos as 'untouchability', on the ground that I was appropriating the struggles of Dalits! My question was: 'Why not?' I acknowledge that Article 17 was inserted in the context of untouchability of the scheduled castes, but there are always new and emerging forms of untouchability" In the context of the Goolrookh Gupta case, where a Parsi women, having married a Hindu man, was restrained from attending her father's funeral rites at the Fire Temple, she discussed- "It presents a frightening picture. A rather shocking proposition that a woman acquires the religion of her husband on marriage has been upheld by the Gujarat High Court. Thus a woman has the religion of her father on birth and of her husband on marriage!" She elaborated on the Hadiya case as an illustration of transforming interpersonal relationships- "Arguments in this case ranged from questioning if Hadiya, a 24 year old Hindu woman had been brainwashed, programmed, or indoctrinated to convert to Islam and marry a Muslim man. The work of the RSS was on view in full force in protesting the marriage of a Hindu woman to a Muslim man. However, Hadiya stood in the Supreme Court, when the court directed that they want to interact with her. Upon being questioned, "Her crystal clear voice rang through the court room, "I want my freedom." Did the court have any choice at that point? No" She also said In recent times, the jurisprudence around transformative constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments. "In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that 'Transformative Constitutionalism' is considered to be one of the objectives of adopting a constitution itself. The purpose of it is to have a Constitution which guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution. It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realization and attainment of rights"Thus, whenever the question of equal rights for women has come forward, the approach of the courts has been disappointing. Rajasthan HC Judgment on My Lord"India's constitutional moment was said to be a shift away from old practices and hierarchies. Seventy years since the Constitution came into force, the...

Whenever The Question Of Equal Rights For Women Has Come Forward,The Approach Of The Courts Has Been Disappointing:Indira Jaising [NLSU Speech]

Mehal Jain

"PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the "discretion" of judges", she said.

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