Last year, the Supreme Court reimagined many existing biased perceptions against women and has paved the way for novel jurisprudential foundations to end gender inequality.
“EACH time a woman stands up for herself , without knowing possibly, without claiming it, she stands up for all women” – Maya Angelou, American poet and civil rights activist.
International Women’s day stands symbolic of not only solidarity towards the overall ostracisation and discrimination against women, but also as a beacon of hope for fostering objective goals for governments to prioritize. The reasons behind celebration of International Women’s Day are manifold and need no reiteration at the cost of repetition. Amongst myriad hues associated in symbolic representation of the varied causes for the achievement of gender parity for women, the colour purple has been an overarching theme this International Women’s Day. Dating back to 1908 when the shade was included to connote justice and dignity in attempts to attain gender equality, in toto what it denotes are the achievements achieved and those left to be achieved.
In a similar vein, the Constitution of India embodies constitutional morality that seeks to reconstitute the society while being sensitive of the fact that old hierarchies cannot be merely wished away. The onus of transition is on the State that truly imbibes the transformative character and pursues it via stimulating the various organs of the government towards achieving the said goals. A common buzz-word which has often found parlance in academic debates and judicial discursive spheres is ‘transformative constitutionalism’ wherein the central role of the State is centred on fulfilling the emancipation and constant development of constitutional ideals of liberty, equality and fraternity. Justice V.R. Krishna Iyer quite succinctly opined in one of his Supreme Court judgments that, “To interpret the Constitution rightly we must understand the people for whom it is made – the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.”
Also read: Transformative Constitutionalism- A post-colonial experiment
What becomes prima facie apparent from such a statement is the additional role of the judiciary when interpreting the Constitution and laws laid thereunder, but also equally pivotal is balancing the chasm of social morality and constitutional morality. The underlining fabric of a political democracy is social democratic principles, which place the requisite fetters on the powers of the government.
The Constitution of India embodies constitutional morality that seeks to reconstitute the society while being sensitive of the fact that old hierarchies cannot be merely wished away.
The dichotomies in State-led proactive and reactive functions is perhaps what propels the social fabric towards monumental positive changes. Hence, often the courts in India, when it comes to inducing activist sentiments into the existing gender-based discriminatory provisions, find themselves as an intuitive interpreter of social, cultural and political mores, reflective of such prevalent attitudes and ethos whilst balancing them against constitutional morality.
It is in line with such visionary sentiments that it becomes befitting to highlight the sentinel of justice in our country vis-a-vis the Supreme Court of India, which has over the years stood steadfast in its attempt of sensitizing the public at large, and also members of the legislature and the lower judiciary, of the issue of gender discrimination so entrenched in the systemic fabric of the Indian governmental framework.
Needless to say, the year 2021 reimagined many existing biased perceptions against women and has paved the way for novel jurisprudential foundations to end gender inequality. In Rekha Sengar vs. State of Madhya Pradesh (2021), the Supreme Court observed that prenatal sex determination is a grave offence with serious consequences for the society as a whole. The bench of Justices M.M. Shantanagoudar, Vineet Saran and Ajay Rastogi held that the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 were compelled by a cultural history of preference for the male child in India, rooted in a patriarchal web of religious, economic and social factors. Referring to various reports regarding the criminal cases filed under the Act, the bench said that these pernicious practices still remain rampant. They highlighted how the immoral practice constituted as violence against women, damaging the very fabric of gender equality and dignity as laid under the Constitution, with serious consequences for the society as a whole.
In Aparna Bhat & Ors. vs. State of Madhya Pradesh & Anr. (2021), where the Supreme Court visibly expressed its exasperation at the ‘rakhi-for-bail’ order passed by the Madhya Pradesh High Court, identified the misnomer in identifying the very brevity of the issue at hand by the High Court, deeming it ‘as wholly unacceptable, and ha[ving] the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case maybe. The law criminalises outraging the modesty of a woman.’
The progressive temperament towards socio-economic alleviation of women also becomes apparent from the Chief Justice of India, N .V. Ramana’s assertion of 50 per cent representation of women in the judiciary in tandem with Articles 14 and 15(3) of the Constitution of India which concretizes women’s representation in the judiciary, thereby transforming representation from mere symbolic ornamentalism to actuating substantial participation in the overall justice dispensation system. However, a caveat to this is two-fold: firstly, appointment of judges in the lower judiciary needs to accelerated, and secondly, while the appointment of women is important, an understanding the systemic discrimination against women in the legal sector is pertinent for combatting the discrimination faced by women in the sector.
Perhaps, what this also highlights is the lack of female mentorship in not only the legal field but also across all other fields, where not only is representation of women in managerial roles scanty, but mentorship of new entrants into the field by women stalwarts is seldom found.
Also read: The pursuit of practical equality for women
Perhaps, what this also highlights is the lack of female mentorship in not only the legal field but also across all other fields, where not only is representation of women in managerial roles scanty, but mentorship of new entrants into the field by women stalwarts is seldom found. The proverbial glass ceiling may be found to be broken occasionally, but it rebuilds itself for other entrants who are found swaddling in the dark. From allocation of professionally unchallenging tasks to forced complacency with lower professional fees than their male counterparts, denial of benefits and promotions in corporate positions, and the ever pervading lack of mentorship in the fields where discrimination is deeply institutionalized, the reasons are varied and multitudinous.
In conclusion, one is left baffled in this maze of institutionalized discrimination; not only vertical mobility, but lateral and diagonal mobility of women being subjected to unequal treatment all over the world. So this Women’s History Month, as we pledge to break the bias, let charity begin at home: in perceptions, through informed socializations, and sensitivity towards the women around us.
(The views expressed are personal.)