Judiciary in India has exponentially evolved to assume the role of the protagonist and shoulder the responsibilities of social architecture by expanding the connotations of legal provisions and interpreting law in bonafied dimensions. From donning the role of a mere interpreter of law, it has spread its wings to catalyse constitutionalism, promote allegiance to law and achieve the echelons of justice in letter and justice. Such assumption of these expanded responsibilities has catered and resulted in judiciary venturing into the areas of a plethora of legal reformative discourses including gender justice, women rights, passion crimes and paedophilic criminalities etc. to record a few. Judicial activism and judicial innovation equally evolved out to gather the new buzz, wherein the epistolary jurisdiction of the Supreme Court took center- stage liberating itself from the narrowed burrow of adjudication as well as constraints of locus standi and making suo-moto interventions in many cases of women rights and gender justice in the contemporary dynamics.
Shedding light on milestones achieved by the Supreme Court of India profoundly influencing the equations of women rights and justice in the nation, an array of judicial dispensations stand as a testament to the crucial role played by the judiciary in prompting the pith and substance of women rights in the country. Ranging from seminal misdemeanours of discrimination to nerve wrenching passion crimes that shakes and jolts the country, the higher judiciary has proved its mettle in showing up as the sentinel of women rights and gender justice against delinquent tendencies.
One of the earliest landmark cases that shaped the contours of gender justice in India, CB Muthamma v. Union of India and Others (1979) called out the outlines of gender discrimination within the stipulations of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, that restricted women officers from serving in certain foreign posts and disentitled them to promotion, if married. Quashing such provisions the Supreme Court acknowledged such blatant gender-based discriminatory conditioning as abhorrently unconstitutional and an abrogation of the essence of equality within the precincts of the Constitution. On similar lines in Air India v. Nergesh Meerza (1981), the Supreme Court struct down the Air India and Indian Airlines Regulations on retirement and pregnancy bar on services of airhostess as unconstitutional on the ground that the conditions laid therein were entirely unreasonable and arbitrary.
While cases like Marry Roy and Others v. State of Kerala and Others (1986), establishing inheritance of Syrian Christian women in Kerala, and Neera Mathur v. Life Insurance Corporation of India (1991)ensuring maternity benefit to fresh employees, carry significant weightage in the legal parlance in terms of achieving the true essence of ‘right to equality’, Vishaka & Ors vs State of Rajasthan & Ors (1997), that laid down elaborate guidelines to deal with the menace of sexual harassment against women at workplaces, left a deep imprint in the realms of workplace equality in India. In this case, the Supreme Court invoked the norms of The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to underscore and accentuate the dire necessity for legal precautions against workplace harassment, leading to the formulation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act), in 2013, unfortunately after a long gap of 11 long years due to lackadaisical political attitude.
When it comes to molestations, rapes and other forms of brutal passion crimes against women in India, the Mathura rape case in 1979 for the first time ignited the judicial campaign and cognizance against such adversity. This led to the Criminal Law (Amendment) Act of 1983, increasing the punitive sanctions to minimum seven years for general rapes and ten years for aggravated ones. The spine chilling Nirbhaya gang rape incident led to the enactment of the Criminal Law (Amendment) Act 2013, broadening the definition of ‘rape’ and making laws against rape and sexual assaults way more stringent. This was also the first time ‘the vegetative state’ of the victim was taken into consideration since the landmark ‘Aruna Shanbaug case’. Furthermore, the ghastly 2019 Kathua rape case (State of Jammu and Kashmir v. Shubam Sangra) led to renewed legal cognition to the concept of paedophilic assaults and pegged for death penalties for rape of minor girls under the age of 12.
However, inspite of such augmented judicial vigilance over crime against women, distressing episodes from violence torn Manipur to Sandeshkhali in West Bengal continue to compel national attention. As far as the stand of the Supreme Court in both the incident is concerned, the Apex court had formed a committee of three former women High Court judges to oversee the investigation, relief and remedial measures in Manipur,
while a similar plea seeking transfer of the probe and subsequent inquiry by a three-judge committee, as done in Manipur was junked in case of Sandeshkhali.
Judicial review and judicial activism in India are also abundant with exemplary instances when the courts have plunged into legal politicking and socio-reformative crusading, whistleblowing the gender discriminative mandates that personal laws embed beneath the upper stratum of religious dictations. Citing examples, the Mitaksara school of Hindu law deprived Hindu daughters of their rights or joint heirship in their parental property until the Lata Mittal (1985) case, wherein judiciary barged in, to ensure equal rights of daughters in ancestral property. In C Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, 1996, the Court pressed for rectification of pre-existing gender-based inequalities and disabilities in matters related to property rights of Hindu female. Issuing strong-worded observations the Court opined that “The basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution, least they became void under Article 13 if they violated fundamental rights.”
The rigorous conundrum pertaining to the need for Uniform Civil Code in India was triggered in 1985 by the historic Shah Bano Begum vs. Union of India, wherein the Supreme Court of India look one a huge leap forward to look past the closed confines of personal laws for the sake of Constitutional morality. In this case the Court, by allowing Muslim women to avail maintenance under Sec. 125 of the CrPC pressed for introduction of the UCC for Constitutional ethics and protection of women burdened under the irrational, regressive and outdated personal laws. The landmark judgement in Shayara Bano vs. Union of India (2017) that declared ‘unilateral instantaneous divorce’ or talak-e-bidat(triple talaq) unconstitutional flagged off another navigation of hope in rippled waters. In a number of cases the Judiciary has showcased how customs and traditions, when left unchecked can lead to severe injustice to a particular class of society, and why the rule of law holds higher authority than such practices. The Sabrimala verdict (Indian Young Lawyers’ Association v. State of Kerala) restoring equal rights of women to enter inner sanctum sanctorum of the Sabrimala Shrine is just one among many other examples wherein the judiciary have asserted that customary laws cannot be placed outside the purview of Constitutional scrutiny, equity and ‘Rule of Law ‘Such progressive and reformative alignment of the judiciary should be sufficiently complimented and supplemented by stringent State action to achieve the real-time execution of legal letters. Goa and Uttarakhand is such senses has carved a niche in terms of at least showing the required political will for good. A Muslim having a domicile in Goa cannot perform triple talaq, polygamy, and Nikah Halala and flouting of such common code will be considered as an offence. In Nagaland, the longstanding debate of approving 33% reservation for women in Urban Local Bodies saw some light across the tunnel when the Supreme Court asserted to the Nagaland government, that if there is any customary law in the State that prevents women from getting reservation in urban local bodies, they won’t hesitate to declare it unconstitutional. The State should be willing to perform the paraphernalia of law enforcement if socio-legal reformations are pitched for, and in a historic move in 2023, the Nagaland Assembly passed the Nagaland Municipal Bill, 2023 retaining 33 per cent reservation for women, after the select committee headed by Deputy Chief Minister TR Zeliang presented a report on the same.
Cases like Suchita Srivastava & Anr. v. Chandigarh Administration recognizing the women’s choice to terminate a pregnancy, Joseph Shine v. Union of India (2018), decriminalizing adultery, S. Khushboo v. Kanniammal & Anr. (2010), legalizing live-in relationships and pre-marital sex and Hotel Priya, A Proprietorship v. State of Maharashtra and Others (2022) quashing gender caps in orchestra bars as unconstitutional are just to name a few, wherein the Judiciary went out of the box to revisit, reconceive and redefine the nuances of liberal connotations of gender justice. Having said that, an expeditious closure on the Hijab row could have catalysed further fortifying of women empowerment as the split verdict on the same would result in the ‘Right to Education’ of the girl students’ being negatively impacted due to a delay in deciding on the issue. As the force to forge ahead breaking away from the narrow shackles of stereotypical constraints gains momentum, fence sitting on such matters might end up proving to be slip between the lip and the cup.
