The issue of gender not only concerns women but men too. As we commemorate Women's Day, we need to look at their strife, struggles and strength. The judiciary too has been instrumental in steering change and reinforcing the principles of equality vouchsafed by the Constitution. Article 15 (3) empowers the State to make laws for the benefit of women. But notions of romantic paternalism often view women's agency as that of a victim. This could prove to be cancerous to the whole gender justice movement and we need to move away from this notion, writes MAHALAKSHMI PAVANI.
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Each time a woman stands up for herself, without knowing it possibly, without claiming it, she stands up for all women.
—Maya Angelou, American poet and civil rights activist
THE past year has not only tested our tenacity but examined us as individuals, professionals and responsible citizens. As much as I believe that women and their achievements and existence need to be celebrated every day, International Women's Day 2021 demands highlighting some pressing issues which we tend to conveniently gloss over.
The theme for this year is "Choose To Challenge". A rather provocative and thought-provoking theme. A world that is consumed in turmoil and seen the resurgence of fundamentalist tendencies is rather instinctive, unlearning the struggles of women. It has seen the emergence of more nuanced and amplified forms of discrimination. The crimes against women remain ever-pervasive. Celebrated feminist writer Geena Dunne Anderson remarked: "Feminism isn't about making women stronger. Women are already strong, it's about changing the way the world perceives that strength."
“The theme for this year is "Choose To Challenge". A rather provocative and thought-provoking theme. A world that is consumed in turmoil and seen the resurgence of fundamentalist tendencies is rather instinctive, unlearning the struggles of women.
Women have been biologically programmed to be tenacious, thereby putting the notion of being the weaker gender to test. History bears testimony to their grit as mothers, nurturers, warriors and writers. The list goes on. But women also have the power, the integrity to look beyond these roles and carve their own path. I wish to see women grabbing the world by its lapels to achieve their true potential and hence be brave enough to #ChooseToChallenge. The path to change is never a linear one, it is rather coarse and bruising, but these are scars that one needs to adorn like a badge of honour.
“Women have been biologically programmed to be tenacious, thereby putting the notion of being the weaker gender to test. History bears testimony to their grit as mothers, nurturers, warriors and writers. The list goes on. But women also have the power, the integrity to look beyond these roles and carve their own path
One can see change being brought about by Indian women, be it Rani Lakshmi Bai of Jhansi, Sarojini Naidu, Kasturba Gandhi, Bhikaji Cama, Lakshmi Sahgal, Sucheta Kripalani, Tara Rani Srivastava, Dakshyayini or countless unspoken heroes. However, their contribution remains unfettered and this speaks volumes of their patriotic fervency towards the nation.
Perhaps, this is the fervency that we need to replicate to embrace the change that social mores need. Former US President Barack Obama in one of his speeches had remarked: "Change will not come if we wait for some other person, or if we wait for some other time. We are the ones we've been waiting for. We are the change that we seek."
Though the onus falls on us as individuals to bring this about, the judiciary too has been instrumental in steering change and reinforcing the principles of equality vouchsafed by the Constitution of India. Law, justice and society form the golden triumvirate when it comes to social change. India prides itself on an independent judiciary while balancing the legitimate expectations of the Constitution.
Despite having scaled new heights in many male-dominated fields, women continue to face social and economic oppression. Perhaps the founders of the Constitution could perceive the deep-rooted and entrenched bigotry in society and hence were motivated to carve out a special provision that manifested itself in Article 15 (3). This Article empowers the State to make laws for the benefit of women and children and says: "Nothing in this article shall prevent the State from making any special provision for women and children."
“Despite having scaled new heights in many male-dominated fields, women continue to face social and economic oppression. Perhaps the founders of the Constitution could perceive the deep-rooted and entrenched bigotry in society and hence were motivated to carve out a special provision that manifested itself in Article 15 (3).
A rather contentious issue here is the phrase "special provision". This takes us to the Anuj Garg and Ors. v. Hotel Association of India, where judicial interpretation adopted to the changing circumstances of society vis-a-vis gender equality in the workplace. The idea of romantic paternalism was gauged by the apex court, which, in this case, centered on the prohibition on women working as bartenders. This was sought to be justified under Article 15(3) as being a special provision for their benefit. The embodiment of romantic paternalism as elucidated in Anuj Garg made it clear that classifications through "protective legislation" basis cannot be sustained even when the State makes a claim that the law actually benefits women, and was thereby saved by Article 15(3).
This brings us to the much-debated issue of gender justice in India. This deals with the relationship among men and women. The Constitution advocates fair treatment of women and men. Equal participation by both in economic and social development, and benefitting equally from societies' resources is crucial for achieving gender justice.
Right to equality and right to life is guaranteed as fundamental rights under the Constitution through Articles 14 and 21 respectively. Unfortunately, gender justice looks foggy when evaluating the ground realities and crime against women in India. More often than not, there are horrific incidents that shake the very foundation of society such as the Nirbhaya rape case. Though there have been efforts to mitigate the situation, much remains to be done.
The Committee on Amendments to Criminal Law under the Chairmanship of Justice (Retd.) J.S. Verma, which was constituted in the aftermath of the 2012 Nirbhaya case, proposed radical reforms to the legal and penal framework with respect to offences against women. The report emphasised the fortiori of State responsibility for providing a safe environment while recognising the prevention of crimes against women.
It even highlighted the egregious nature of the incident and how it struck at the very nature of basic human rights guaranteed to women in India. It indicated a stricter punishment to induce deterrence. While the report was comprehensive, the investigation of such crimes remains influenced by bureaucratic red-tapism. The legislative framework for the protection of the rights of women, in turn, amplifies the very principle of equality enshrined in the Constitution, covering various facets of a woman's life where she faces discrimination and subjugatory behaviour.
Some of the key laws which specifically dealt with the protection of women in India are:
The Supreme Court has never abdicated its duty when it comes to implementing laws for the benefit of women. These are evident in the following cases:
The continuing spiral of violence against women and their subjugation–either physically, emotionally, or financially–is pitiable. Yet, as members of a civilised society, we are also accountable for the way women are treated.
Late US Justice Ruth Bader Ginsburg succinctly highlighted how "women belong in all places where decisions are being made… It shouldn't be that women are the exception". Notions of romantic paternalism which often view women's agency as that of a victim could also prove to be cancerous to the whole gender justice movement. We need recognition of the equality and humanity of women and men.
Not only does this require changing the dynamic, but also ensuring that women's voices are heard, heeded and put to tangible implementation. A befitting example would be in the case of Supreme Court Women Lawyers' Association (SCWLA) v. Union of India (2016) 3 SCC 680 where the SCWLA had urged the Supreme Court to increase the quantum of punishment for the rape of children who had not attained the age of majority.
The Supreme Court said it could only advise the government and recommend changes in the existing quantum of punishment enshrined in the respective legislation. However, the legislative function lies with the Parliament, ironically an institution where only 14% of the seats are occupied by women (as indicated by the World Bank in its 2020 report).
The irony lies in the fact that legislative functions are left to be debated by the gender which is most accused of sexual crimes against women, making it almost impossible for them to appraise the ground realities in the lives of every woman. Nonetheless, they brought out an amendment in 2019 to the POCSO Act, 2012 to include the death penalty in cases of sexual offences against children.
“The irony lies in the fact that legislative functions are left to be debated by the gender which is most accused of sexual crimes against women, making it almost impossible for them to appraise the ground realities in the lives of every woman.
Equal justice, though an idealistic expectation of every society, is a fundamental right. One hopes that justice should be available at the right time sans regard to caste, economic status, or race of the victim. Sometimes, the issue of gender justice appears as a mere ornamentalist instrument, demonstrating piecemeal consideration towards the cause of upliftment of women. The judiciary too, at times, seems to fail the victim.
It is when law and justice, their organs, allies and instrumentalities fail that they become endangered and block the flow of social progress. The purpose of progressive legislation and judicial attitudes towards the rights of women cannot be emphasised enough.
While equality and equal protection by the law lie at the doctrine of Rule of law, nevertheless, justice for women must not be restricted to punishing the perpetrator, but also addressing inequalities, institutional bias and systemic failures.
(Mahalakshmi Pavani is a senior advocate and president of SCWLA. The views expressed are personal.)