Supreme Court Of Pakistan Cites Indian Supreme Court's Judgment On Avoiding Gender Stereotypes

In a significant judgment for gender equality and continued recognition of women's legal rights, the Supreme Court of Pakistan overturned the judgment of a Khyber Pakhtunkhwa Service Tribunal, Peshawar, which held that "a married daughter becomes a liability of her husband" and therefore, not eligible for compassionate appointment of the deceased son/daughter quota. It held that the language deployed in the judgment is only factually and legally erroneous but also "deeply patriarchal" as it reinforces outdated stereotypes.Citing the Supreme Court of India's judgment in Aparna Bhat v. State of Madhya Pradesh (2021) on how judges should avoid the use of stereotypical language in the judgments, a division bench of Justices Syed Mansoor Ali Shah and Athar Minallah observed: "Such language is not only factually and legally erroneous, but also deeply patriarchal, reinforcing outdated stereotypes that are fundamentally incompatible with constitutional values. It assumes that a woman's identity, legal capacity, personhood, and entitlement to support are subsumed into that of her husband upon marriage, treating her as a dependent rather than an autonomous, rights-bearing individual. The use of gender biased language by judicial or administrative bodies does not merely reflect prevailing social prejudices, it perpetuates and legitimizes structural discrimination, and risks encoding bias into the law itself. Globally, it has been recognized that the language of judicial reasoning plays a critical role in shaping, affirming, or undermining substantive equality. As constitutional subjects, women are entitled to equality not only in result but also in the form, tone, and respect with which the law addresses them. In this context, the Feminist Judgments Project undertaken in several jurisdictions including Pakistan has demonstrated how judicial reasoning can be reframed through a feminist lens, applying existing legal principles while eschewing gendered assumptions and incorporating inclusive, equality-affirming language. The core premise is clear: how law is written matters a much as what it decides. Thus, we deem it imperative to reaffirm that all judicial and administrative authorities bear a constitutional responsibility to adopt gender-sensitive and gender-neutral language. This is not a mere formality, but reflects a substantive commitment to the values of dignity, equality, and autonomy guaranteed to all citizens under Articles 14, 25, and 27 of the Constitution. The judiciary must lead by example, ensuring that the words used to interpret and apply the law do not themselves become instruments of exclusion."In Aparna Bhat's case, the Supreme Court of India had set aside the Madhya Pradesh High Court judgment wherein the Court had imposed a bail condition upon the person (accused of outraging the modesty of his neighbour) to request the victim to tie the rakhi around his wrist. The Court held that using rakhi tying as a condition for bail, transforms a molester into a brother, by a judicial mandate. This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment.By setting aside the Tribunal's judgment, the Supreme Court of Pakistan strikes down an executive clarification, which excluded married daughters from compassionate appointments under the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion, and Transfer) Rules, 1989, as "discriminatory, ultra vires, issued without lawful authority and incompatible with Pakistan's constitutional guarantees and international legal obligations".Various other Indian judgments have been cited in this case.The Court found that the parent rule is gender-neutral and inclusive, and despite that, an executive clarification was issued subsequently denying married women from the deceased son/daughter quota for compassionate appointments. It held that the impugned clarification represents an impermissible revival of the discredited common law doctrine of coverture, under which a woman's legal existence was subsumed into that of her husband." The language of the rule is inclusive, indicating that the benefit is to be extended equally to all children, without distinction based on gender, marital status, disability or religion. Therefore, a plain reading of the provision indicates that a married daughter falls within the scope of “one of the children” and cannot be excluded solely on the basis of her marital status....Second, and more critically, we have noticed that the impugned clarification introduces a discriminatory classification by excluding married daughters from eligibility, despite Rule 10(4) containing no such restriction, while allowing married sons to benefit under the same provision. Such a distinction does not meet the test of reasonable classification under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (“Constitution”). It is well settled that reasonable classification must be founded on an intelligible ...

Supreme Court Of Pakistan Cites Indian Supreme Court's Judgment On Avoiding Gender Stereotypes

Gursimran Kaur Bakshi

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