Indian Constitutional Journey : Architect’s Aspirations vis-a-vis Judiciary’s Achievements in the area of Gender Equality and Gender Justice

Architect’s Aspirations If I am asked to name a significant area in which one may proudly say that, in the Indian Constitutional Journey, Judiciary’s achievements match the Architect’s aspirations, then, it can be said to be in the area of Gender Equality and Gender Justice. Bharat Ratna Dr. Babasaheb Ambedkar, the illustrious son of India and the Architect of the Constitution of India, has drafted the Constitution, which is a master piece in itself and is one of the most brilliant pieces of the world’s Constitutions. Our Constitution is, as is rightly called ‘a living organism’, in which judiciary has infused life in dead letters of law with its vibrant and pragmatic interpretation, so as to bring in reality the vision of its architect of an egalitarian society, where men and women have to be equal and treated equally, both, by the laws and also by the Society. This vision is found very much reflected in the Constitution of India. Hence, in the Preamble itself, he has laid emphasis on the “Equality of Status” and “Equality of Opportunity”, with a promise of social, economic and political justice to all its citizens.  In the chapter of ‘Fundamental Rights’ also, which is considered to be the most sacrosanct part of the Constitution, a prime position is allotted to the right to equality. The very first fundamental right provided in Article 14 is of ‘Equality before Law and Equal Protection of Law’. This right is made available to every person within the territory of India, be its citizen or otherwise. In Article 15(1), Dr. Babasaheb Ambedkar has made this concept of equality further clear by laying down that, the State shall not discriminate against any of its citizens on the grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) further guarantees that, no citizen shall, on any of these grounds, including the ground of sex, be subjected to any disability, liability, restriction or condition with regard to access to public places. Article 15(3) gives a totally new dimension to the concept of equality, as it goes a step further and provides that the State is not precluded from making beneficial Legislation for women and children. This provision is an extension of right to equality, which implies equal treatment to equals in similar circumstances; hence, when the circumstances are different, the situation would warrant different treatment. Considering the social history of past discrimination against women, the Constitution, in Article 15(3), has affirmed that women require special provisions to bring them at par with men in our society. Article 16 of the Constitution further guarantees equality of opportunity in the matters of employment, prohibiting any sort of discrimination on the ground of sex. In pursuance of these Fundamental Rights guaranteed in Part III of the Constitution, there are numerous legal provisions, Government policies and schemes, including the provision for reservation of seats for women in Village Panchayats and Municipalities, which specifically aim to promote the welfare of women.  Directive Principles of State Policy, enshrined in Part IV of the Constitution, which are guidelines to the Government for formulating the policies and the laws and lay down the larger goals to be achieved by the welfare State, again contains various beneficial provisions for women, such as, equal pay for equal work for both men and women, just and humane conditions of work, maternity and other benefits, which are found reflected in various Labour Legislations and other Statutes. Part IV-A on Fundamental Duties casts a duty in Article 51A(e) on every citizen of India to renounce the practices derogatory to women.  In pursuance of this Constitutional promise of right to equality and prohibition of discrimination against women on the ground of sex, we find several laws being enacted to bring women at par with men in their social status and to enable them to live life with dignity, which is again a fundamental right guaranteed under Article 21 of the Constitution.  As is evident from Article 15(3), which provides for affirmative action on the part of the State to bring women at par with men, the equality, of the aspiration of Dr. Babasaheb Ambedkar was not merely a formal equality, where there always lies a danger of unequals being treated equally. According to him, equality can only be amongst equals, otherwise it may result into injustice. Hence, his dream of equality was of substantive equality, where special provisions need to be made for unequals to bring them at par with the equals. He saw women as victims of the rigid hierarchical social system. He believed that socio-cultural forces artificially constructed gender relations. He believed in what Simone De Beauvoir observed that, “the women are made, they are not born”. Hence, according to him, the State and all its machineries must first take some affirmative action and do protective discrimination to alleviate centuries of exclusion of women from politics, education and public employment. According to his opinion, formal equality will not be sufficient to ameliorate centuries of inequalities amongst the weaker sections of the Society. Therefore, in recognition of the continuing effects of past discrimination, in the Constitution he has laid down an elaborate system of protective discrimination, authorizing special protection for women.  Judiciary’s Achievements It goes to the credit of Judiciary that the Supreme Court and the various High Courts, in their plethora of decisions, recognized and given effect to his vision, affirming that compensating for discrimination is not an exception to equality, but a necessary means of achieving equality.  Article 15(3) has been used by the Supreme Court, thus, not only to uphold the laws that treat women favourably than men, but also to interpret the laws in a manner to extend protection to women.  In Service Law In the case of Government of Andhra Pradesh v. P. B. Vijaykumar & Ors.1 , the Supreme Court has, while upholding affirmative action and reservation of jobs for women in public employment, observed that, an important limb of the concept of Gender Equality is creating job opportunities for women. While examining the interplay between Article 15(3) and the Constitution’s other equality guarantee, the Supreme Court held that, “this concept of protective discrimination needs to be woven throughout the web and fabric of its decisions”. Drawing considerable force from Dr. Babasaheb Ambedkar’s vision of protective discrimination for substantive equality, the Supreme Court upheld the reservation of seats for women in Municipal and Panchayat’s Elections2 ; also in Managing Committees of State Co-operative Societies3 and in employment4 .  In Vijaykumar’s case (supra), the Supreme Court has affirmed the Architect’s vision by stating that, “the insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in socio-economic activities of the nation on a footing of equality. It is in order to eliminate the socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women ...... To say that, under Article 15(3), job opportunities for women cannot be created, would be to cut at the very root of the underlined inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16”.  Analysis of various Judicial decisions shows that the Judiciary has always molded itself into the role of champion for women’s rights. If any discrimination, even slight or remote, was noted by the Judiciary in any of the existing laws and State actions, the Judiciary has been quick to strike it down. At the same time, Judiciary has been equally prompt to uphold the validity of the Legislation enacted for protection of women’s rights. While taking cudgels for the right of women for “equal pay for equal work”, the Supreme Court has upheld the Equal Remuneration Act to grant same salary to the women stenographers5 . The plea of the employer that only women are appointed as confidential stenographers and are in different class, was negated by the Supreme Court by stating that, “if only women are working as confidential stenographers, it is because the Management wants them there. Women are neither specially qualified to be confidential stenographers, nor disqualified on account of sex to do the work assigned to the male stenographers. Even if there is a practice in the Establishment to appoint women as confidential stenographers, such practice cannot be relied upon to deny them equal remuneration due to them under the Act”.  In the case of Associate Banks Officers’ Association v. State Bank of India6 , the Apex Court categorically held that, women workers are in no way inferior to their male counter-parts. Hence, there should be no discrimination on the ground of sex against women. The Supreme Court further held that, the provisions of Equal Remuneration Act are meant to prevent discrimination on the ground of sex against women in the matter of employment and such provisions cannot be struck down in any way.  The Judgment of the Supreme Court in Air India v. Nergesh Meerza7 , is a major milestone in Indian Constitutional History as it upholds women’s right to equality in most unequivocal terms and strikes down the provisions discriminatory to them. In this case, the legality of Regulation 46(c) was challenged, which provided for superannuation of an Air-Hostess at the age of 35 years or on marriage, if it takes place within four years of service or on first pregnancy, whichever is earlier. The Court declared the said provision to be unreasonable and Constitutionally void by holding that, “whether the woman after bearing children would continue in service or would find it difficult to look after the children is her personal matter and a problem which affects the Air-Hostess concerned and the Corporation has nothing to do with the same”.  In this Judgment, in a very elaborate and forceful way, the Apex Court explained the entire concept of ‘Gender Discrimination’ by observing that,  “the provision according to which the services of Air Hostesses would stand terminated on first pregnancy is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution. It amounts to compelling the Hostesses not to have any children and thus interfere with and divert the ordinary course of human nature. By making pregnancy a bar to continuance in service of an Air Hostess, the Corporation seems to have made an individualized approach to a woman’s physical capacity to continue her employment even after pregnancy which undoubtedly is a most unreasonable approach. The termination of the services of an Hostess under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood. It is extremely detestable, abhorrent to the notions of a civilized society and grossly unethical in disregard of all human values. Pregnancy is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction, therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary.  It may not be very correct to say that a woman loses her normal faculties or that her efficiency is impaired at the age of 35, 40 or 45 years. It is difficult to generalize a proposition like this which will have to vary from individual to individual.  It is also not understandable as to how a young and attractive Air Hostess would be able to cope with difficult or awkward situations more effectively than others because smartness or beauty cannot be the only hallmark of competency. It is idle to contend that young women with pleasing manners should be employed so as to act as show pieces in order to cater to the varied tastes of the passengers when in fact older women with greater experience and goodwill can look after the comforts of the passengers much better than a young woman can. Such considerations are in bad taste and in denigration of the role of women and a demonstration of male chauvinism and disclose an element of unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness”.  The Apex Court’s Judgment in the case of C.B. Muthamma v. Union of India8 , is another example of Judiciary espousing the cause of women, understanding the underlying gender bias in employment laws and making every effort to remove it. In this case the challenge was raised to Rule No.8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, which required a woman member in foreign service to obtain permission of the Government in writing before her marriage and to resign, if the Government is satisfied that her family and domestic commitments are likely to come in the way of due and efficient discharge of her duties and Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, prohibiting a married woman to be appointed in foreign service as of right. While upholding the challenge and declaring these provisions as Constitutionally void, the Supreme Court held that,  ‘Discrimination against women, in traumatic transparency, is found in this rule ...... If the family and domestic commitments of a woman member of the service are likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days ...... one fails to understand the naked bias against the gentler of the species ..... and if the executive ..... makes [such] rules ..... [then] the inference of die-hard allergy to gender parity is inevitable.’  The Supreme Court was further pleased to explain the concept of ‘Gender Equality’ by observing that, “we do not mean to universalize or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern”.  Supreme Court in this decision also impressed upon the Government the need to overhaul all Service Rules to remove the stain of sex discrimination, without waiting for ad hoc inspiration from writ petitions or gender charity.  Time and again, even till as recently as now, the Apex Court has, when faced with this gender discrimination in service laws, been sensitive and responsive to remove it. For example, in the case of Air India Cabin Crew Association v. Union of India9 , the Air-Hostesses had challenged the policy of appointing only males as In-Flight Supervisor, the person-in-charge of all Cabin Crew, on the ground that it was patently discriminatory, which has resulted into the anomalous situation of male In-Flight Supervisor supervising Air-Hostesses several grades above and senior to them. Hence, when Air India ended this discriminatory policy in 2005 and appointed 10 women as In-Flight Supervisors, the male Flight Supervisors challenged the appointment of women claiming exclusive privilege to the appointment of In-Flight Supervisors before the Delhi High Court and subsequently in Appeal to the Supreme Court. Both the Courts unequivocally declared that, the removal of the “men only” tag from the post of In-Flight Supervisors was in keeping with the mandates of equality and prohibition of discrimination on the gender grounds.  Judiciary has thus always stood for protection of women’s rights. Even when the Legislation on the particular point was silent, Supreme Court has interpreted it in such a way that marginalized women are also not deprived from the purview of beneficial legislative act. In Municipal Corporation of Delhi v. Female Workers10 , the Supreme Court held that, temporary workers are also entitled to maternity benefits. While doing so, the Supreme Court relied upon the Preamble of the Constitution, which promises social and economic justice and accordingly interpreted Maternity Benefit Act as extending maternity benefits to women on the “muster roll”, who were essentially day-labourers.  In Rajesh Kumar Gupta v. State of Uttar Pradesh11 , the Supreme Court, while concurring with the view taken by the High Court of Allahabad in respect of the reservation of 50% posts in favour of female candidates, held that, Article 15(3) of the Constitution enables the State Government to make special provisions for women and children, notwithstanding, the prohibition contained in Article 15(1). It was observed that, “particularly viewed in the background of the fact that a large number of young girls below the age of ten years were taught in the primary schools and recognizing that it would be preferable that such young girls are taught by women, the reservation of 50% of the posts in favour of female candidates was justified and not hit by Article 14”.  In the recent Judgment of Charu Khurana and others v. Union of India12 , the Apex Court has once again expounded the concept of Gender Justice by taking recourse even to Fundamental Duties enshrined in Chapter IV-A of the Constitution by observing that, “though there has been formal removal of institutionalized discrimination, yet, the mind set and attitude ingrained in the subconscious have not been erased”. In this case, the main grievance of the Petitioner was that the Cine Costume Makeup Artists and Hair Dressers Association of Mumbai has refused to issue Makeup Artist Card to the Petitioner on the ground of her gender, so that the male members were not deprived of the work as Makeup Artist. While referring to Fundamental Duties provided under Clauses (e) and (j) of Article 51-A, the Supreme Court, on a condign understanding of clause (e), held that, “it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced. Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievement”.  The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. While elaborating further the concept of ‘Equality’, as envisaged by Dr. Babasaheb Ambedkar and as embodied in the Constitution, the Supreme Court has taken major strides towards empowerment of women. In the words of the Supreme Court,  “It is apt to note here that reservation of seats for women in panchayats and municipalities have been provided under Articles 243(d) and 243(t) of the Constitution of India. The purpose of the Constitutional amendment is that the women in India are required to participate more in a democratic set-up especially at the grass root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th Amendments of the Constitution which deal with the reservation of women has the avowed purpose, that is, the women should become parties in the decision-making process in a democracy that is governed by the rule of law. Their active participation in the decision-making process has been accentuated upon and the secondary role which was historically given to women has been sought to be metamorphosed to the primary one. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.”  In Gender Laws This pro-active approach of judiciary is found all the more ubiquitous in upholding the validity of laws, enacted particularly for the well being and protection of women. In this arena, the Courts have gone a step ahead in even seeking effective implementation of these Laws. Just to cite an example; The Pre-Conception and Pre-Natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994, (for short “the P.C.P.N.D.T. Act”), though enacted in 1994 and brought into force two years thereafter in 1996, no initiative was taken by the Government for implementing the same till 2003, though the object of the Act was very noble, which was to curb the social menace of sex selection and sex determination. When in the Petition of CEHAT and Ors. v. Union of India13 , this fact was brought to the notice of the Court, the Supreme Court was at pains to observe that, “it is an admitted fact that in Indian Society, discrimination against girl child still prevails, may be because of prevailing uncontrolled dowry system despite the Dowry Prohibition Act, as there is no change in the mind-set or also because of insufficient education and/or tradition of women being confined to household activities. Sex selection/sex determination further adds to this adversity. It is also known that number of persons condemn discrimination against women in all its forms, and agree to pursue, by appropriate means, a policy of eliminating discrimination against women, still however, we are not in a position to change mental set-up which favours a male child against a female. Advance technology is increasingly used for removal of foetus (may or may not be seen as commission of murder) but it certainly affects the sex ratio. The misuse of modern science and technology by preventing the birth of girl child by sex determination before birth and thereafter abortion is evident from the 2001 Census figures which reveal greater decline in sex ratio in the 0-6 age group in States like Haryana, Punjab, Maharashtra and Gujarat, which are economically better off. Despite this, it is unfortunate that law which aims at preventing such practice is not implemented”.  The Supreme Court has then taken upon itself the task of issuing various guidelines and directions for implementation of the Act with all the vigour and zeal, taking serious note of the fact that the Law which aims at preventing the practice of sex selection and sex determination is not being implemented at all. The Supreme Court gave further directions to create public awareness against such social evils.  In the case of Voluntary Health Association of Punjab v. Union of India14 , the Supreme Court has once again reiterated its grave concern over the decline of sex ratio across the country, which was a result of the misuse of the pre-natal diagnostic techniques and improper implementation of the Act, meant to prevent such abuse. In this Petition also, the Supreme Court has given various directions for its effective implementation and also to create general awareness to change the mind set that discriminates against women.  When the Constitutional validity of the P.C.P.N.D.T. Act was challenged on the ground of its being violative of Article 21, the Bombay High Court came down heavily on the Petitioners in the case of Vinod Soni & Anr. v. Union of India (UOI)15 , while exposing the fallacy of the argument advanced by the Petitioners that the right to personal liberty includes the liberty of the couple of choosing the sex of the off-spring and determining the nature of the family, by observing that, “right to personal liberty cannot be expanded by any stretch of imagination to liberty to choose the sex of the child and prohibit to coming into existence of a female or male foetus, which shall be for nature to decide”.  In another case of Vijay Sharma & Ors. v. Union of India16 , while elaborately dealing with the object, reasons and provisions of the P.C.P.N.D.T. Act and taking note of the frightening figures showing imbalance in the sex ratio, in very strong and harsh words, the Bombay High Court outrightly rejected the argument that the Society does not want a girl child and, therefore, efforts should be made to prevent the birth of the girl child. It was held that, “such tendency offends the dignity of women. It undermines their importance. It insults and humiliates womanhood. It violates women’s right to life. It violates Article 39(e) of the Constitution and also ignores Article 51A(e) of the Constitution. Sex selection is, therefore, against the spirit of the Law and Constitution”. Thus, rejecting all the challenges raised about the Constitutional validity of the Act, the High Court dismissed the Petition and directed the State to take all expeditious steps to prevent misuse of diagnostic techniques.  The same approach of the various High Courts is noticed in dealing with the procedural aspects of the said Act, to ensure that no wrong doer escapes from the clutches of the Act and the misuse of the provisions of the Act is curtailed17 .  In Personal Laws The analysis of the decisions of the judiciary regarding personal laws indicate that, though the Courts have been hesitant in declaring the provisions of personal laws as ultra vires of the Constitution, nonetheless, the Courts have been at fore-front in liberally construing the provisions in favour of women, often by reading down or stretching their language.  While interpreting provisions of Section 14 of Hindu Succession Act, 1956, the Courts have done it liberally to give widest possible effect to the intent of the Legislature in favour of Women’s right to full ownership to property and have held that, where a woman is in possession of property; whether it is in her actual or constructive possession, she becomes the absolute owner, though she may have acquired the property before the Act. If she alienates such property subsequent to the commencement of the Act, the reversioner cannot question it though the alienation is not for any religious purpose or for legal necessity of the family.18  As gender inequality is most apparent in personal laws, Judiciary has widely taken recourse to Article 15(3) of the Constitution, so as to benefit women by holding that Statute must be construed harmoniously with the Constitutional goal of removing gender based discrimination and effectuating economic empowerment of women. In Thota Sesharath-amma v. Thota Manikyamma19 , while construing Section 14 of the Hindu Succession Act, 1956 and its revolutionary effect on the right to ownership of the land by Hindu woman, the Supreme Court held that, “the validity of Section 14(1) drawn from the pre-existing limited estate held by a Hindu woman must be tested on the anvil of socio-economic justice, equality of status and by overseeing whether it would sub-serve the Constitutional animation. Article 15(3) relieves the State from the bondage of Articles 14 and 15(1) and charges it to make special provision to accord socio-economic equality to woman”.  In V. Tulasamma v. Sesha Reddy20 , the Court, cognizant to equality in intestate succession by a Hindu woman, held that, “after the advent of independence old human values assumed new complex; women need emancipation; a new social order needs to be set up giving women equality and place of honour. Abolition of discrimination based on equal right to succession is the prime need of the hour and temper of the times”.  The Court has thus time and again interpreted Section 14 of Hindu Succession Act to give women absolute right to property even where a Will purported to limit it. It was done by relying upon the Constitutional goal to render socio-economic justice, to relieve the Hindu woman from degradation, disabilities, disadvantages and restrictions, under which Hindu females have been languishing over centuries and to integrate them in national and international life.  In Rashmi Kumar v. Maheshkumar Bhada21 , the Supreme Court rejected the claim of joint ownership of property by the husband and in-laws by arriving at the finding that, “under Hindu Law, wife was the absolute owner of ‘stridhan’ and can deal with it in any manner she likes. She may spend the whole of it or give it away at her own pleasure by gift or Will without any reference to her husband. Ordinarily, the husband has no right or interest in it with the sole exception that in times of extreme distress, as in famine, illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. This right is purely personal to the husband and the property so received by him in marriage cannot be proceeded against even in execution of a decree for debt passed against the husband. If in spite of demands for return of the articles, the husband refuses to return them to the wife, it amounts to an offence of criminal breach of trust. The stridhana property is not a joint property of the wife and the husband. Section 27 of the Hindu Marriage Act merely provides another remedy of suit to recover from the husband or the persons to whom the stridhana property was entrusted.”  It was further held that, “the mere factum of the husband and the wife living together does not entitle either of them to commit a breach of criminal law and if one does, then he or she will be liable for all the consequences of such breach. By merely living in matrimonial home the stridhana does not become joint property of the spouses. It is also not a partnership property between the wife and the husband. The concept of partnership is alien to the stridhana property under the personal law. Therefore, entrustment of stridhana, without creating any right in the husband except, putting the articles in his possession, does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife; nor can he burden her with loss of business by using the said properties which were never intended by her while entrusting possession of the stridhana. The husband being only a custodian of the stridhana of his wife, cannot be said to be in joint possession thereof and does not acquire a joint interest in the property. It was, therefore, concluded that the custody or entrustment of the stridhana with the husband does not amount to partnership in any sense of the term nor does the stridhana become a joint property.”  In Pratibha Rani v. Suraj Kumar22 , it was held that, not returning the ‘stridhan’ to a woman was a serious non-bailable and cognizable offence, punishable with imprisonment upto three years. According to Supreme Court, a criminal case for breach of trust under Sections 405 and 406 of IPC could be filed by women, whose ‘stridhan’ has not been returned by their husbands and in-laws, to whom they had “entrusted” it for safe keeping.  The Judgment of the Supreme Court in Jani Bai v. State of Rajasthan & Ors.23 , has paved the way for interpreting the word “son” as meaning “issue” in a gender neutral form so as not to deprive daughters from the grant of the State largesse, merely on the ground of sex, by reasoning that, “it is well settled that the distribution of State largesse cannot be made in violation of right to equality. The State must ensure that it gives equal opportunity to persons equally eligible for obtaining the State largesse on equal terms to avoid infringement of the right to equality guaranteed under the Constitution. Viewed from this angle too, it is obvious that in allotment of the surplus Government land under these Rules, the State cannot confine the grant only to the male issue of the temporary cultivation lease holder denying the same to the female issue who is otherwise equally eligible and similarly placed as the male issue for getting allotment of the land under these Rules. This aspect also justifies the application of the ordinary rule of construction contained in Section 14 of the Rajasthan General Clauses Act, according to which the word importing masculine gender must be taken to include females also. The result is that the word ‘son’ in these provisions must be read as ‘issue’ to include females also.”  While protecting the Hindu Woman’s equal right towards guardianship over the minor child, the Supreme Court has stretched the meaning of the word ‘after him’ appearing in Section 6 of the Hindu Minority and Guardianship Act, 1956, as during his life-time also, “in his absence” so as to afford equal preference for father and mother as guardians of the child. While doing so, the Supreme Court has drawn support from Constitution’s Commitments to International Covenants, like, CEDAW (Convention for Elimination of all Discrimination Against Women), so as to uphold women’s right to equality.  While interpreting the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 in the case of Danial Latifi & Anr. v. Union of India24 , the Court again stretched the meaning of the text “within three months” appearing in Section 3 of the Act to mean the husband’s liability of providing maintenance to his divorced wife to the extent of making a fair and reasonable provision for the rest of her life, thereby defeating to some extent even the legislative intent also, which was to restrict the liability of husband to pay maintenance to the divorced wife only during three months of Iddat. It may be noted that the Act was brought as an aftermath of the Supreme Court Judgment in the case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors.25 .  In Gender Specific Offences No doubt, at times, Judiciary is also criticized for adopting protectionist approach towards women, as the said approach has potential of indirectly perpetuating the very stereo-types that have been used to keep the women in subordinate position. It is also called as ‘Judicial Activism’ or ‘Judicial Overreach’. However, this approach of the Supreme Court is found warranted in the area of gender based violence, as it operates as the most extreme and brutal form of gender inequality and gender discrimination. The best illustration of this protectionist and pro-active approach of the Judiciary is found in the case of Vishakha & Ors. v. State of Rajasthan & Ors.26 , where Supreme Court filled up the vacuum of statutory domestic law on the subject of sexual harassment of women at work place, by relying upon the number of International Laws and International Covenants, like, CEDAW. While doing so, the Supreme Court took a very positive and bold stand by observing that, “each incident of sexual harassment of woman at workplace results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g). The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.”  Supreme Court has, in this case, categorically held that, “Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The common minimum requirement of this right has received global acceptance. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.”  In this case, the Supreme Court has virtually laid down a self-contained code for dealing with the law relating to sexual harassment of women at work place, thereby stepping into the shoes of Legislature so as to achieve the Constitutional object of gender equality and gender justice, especially, the dream of Architect, as found enshrined in Article 15(3) of the protective discrimination for women to enable them to lead the life of individual dignity and self-worth.  The analysis of judicial decisions in the arena of offences against women reveals that, the Judiciary has always remained most sensitive to the trial and tribulations of a woman, who has been subjected to the gender specific offences, like, rape. The Judiciary has expected this sensitivity not only from the stake-holders in the Criminal Justice System, but also from the Society at large as such. Taking note of lot of criticism of the treatment meted out to the victims of the sexual assault, in the Court during cross-examination, the Supreme Court, in the case of State of Punjab v. Gurmit Singh & Ors.27 , was at pains to observe that “it is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. In fact, insisting on corroboration to her testimony is adding an insult to her injury. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations”.  It was further held by the Supreme Court that, “the Court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence”.  Being aware of the embarrassment which victims of sexual offences are facing while giving evidence in the Court, Supreme Court has directed that, as far as possible, such cases of sexual assault be tried by the lady Judges and also, as far as possible, the names of the victims should not be disclosed in the orders passed by the Court. The anonymity of the victim of the crime must be maintained throughout. In State of Punjab v. Ramdev Singh28 , while emphasizing that the Court should deal with the cases of sexual offences sternly and severely, it has been observed by the Supreme Court that, sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a female. It has been further held that rape is a crime against basic human rights.  In the case of Sakshi v. Union of India & Ors.29 , the Supreme Court has gone a step ahead in respect of the sexual offences where the children are the victims and has laid down detailed guidelines as to how the evidence of such victims of child sexual abuse or rape should be recorded by giving directions to the effect that, such cases should be tried in-camera and there should be a screen or some such arrangements may be made so that the victim does not see the body or face of the accused while giving evidence. Further, the questions put in cross-examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court, who may put them to the victim in a language which is clear and is not embarrassing. It was further directed that such victim of child abuse or rape, while giving testimony in the Court, should be allowed sufficient breaks as and when required. All these directions, which are found subsequently incorporated by Legislature in the newly enacted Protection of Children from Sexual Offences Act, 2013, are found given by Judiciary more than a decade in advance.  In the case of Delhi Domestic Working Women’s Forum v. Union of India30 , the Supreme Court again gave guidelines for providing legal aid to such victims of sexual offences and further directed the National Commission for Women to evolve a suitable scheme for providing compensation to such victims. In the case of Bodhisatwa Gautam v. Subhrachakraborty (Ms)31 , the Supreme Court even awarded interim compensation to the victim. The seeds of recent amendment in Cr.P.C. of adding Section 357-A providing for establishment of Victim Injury Compensation Fund, are found in these pronouncements of the Supreme Court.  It is pertinent to note that, much before Legislature deleted Clause 4 of Section 155 of Evidence Act dealing with character of the rape victim, the Apex Court has, about 25 years ago, in the case of State of Maharashtra v. Madhukar Murdikar32 , held that, “even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. ...... Therefore, merely because she is a woman of easy virtue, her evidence cannot be ‘thrown overboard’. Thus, the decisions of the Judiciary have not only heralded change in social mind-set but also in legislative set-up.  Wherever laws were not found enough to curb social evils, like, dowry deaths, Supreme Court has exhorted the Courts to rise upto the occasion. In Kundula Bala Subrahmanyam v. State of A.P.33 , the Supreme Court has made it clear that, if the laws are not enough to combat the pernicious social evil of dowry deaths, the role of Courts under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunae in the evidence. Otherwise, the criminals would receive encouragement and the victims of the crime would be totally discouraged by the crime going unpunished.  Conclusion Thus, it can be seen that Judiciary has always remained alive to the aspirations of the Architect of Constitution and gone all out to bring his vision into reality. The emphasis of Dr. Babasaheb Ambedkar on substantive equality by providing affirmative action on the part of the State in bringing women at par with men is found percolated throughout the pages of Law Journals and all the decisions of the Judiciary are reverberating with that concept. Several such decisions of the Judiciary can be cited, which are imbued with this concept of equality found in the aspirations of the Architect. Therefore, as I said in the beginning, this is an area wherein the aspirations of the Architect of Constitution are found most realized and given effect to, in the Indian Constitutional Journey.

Author Name: Hon’ble Dr. Justice Shalini Phansalkar Joshi