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JUDICIAL APPROACH FROM GENDER EXCLUSIVE TO GENDER-INCLUSIVE

INTRODUCTION

We all know the importance of judicial decisions and how much they impact our daily lives. We all have had an intermediating discussion about the honorable Supreme Courts judgments at least once in our lives. Judicial decisions have a major impact on our lives as an individual or collectively as a group whether it is social, economic, or legal abilities. They play a major role in deciding the state of democracy in a country and sometimes even the values and morals by which a country is abiding. Thus, the gender-inclusive approach becomes even more important in such cases as the judicial system of a particular country plays a major role in making it gender-neutral.

JUDICIARY AS AN AGENT FOR CHANGE IN SOCIETY

The decisions given by the judiciary become a norm for all as the influence of the court goes beyond people who are directly in contact with it. Therefore, it is of the utmost importance that the court strikes down those law provisions that promote unequal rights. The court must keep in mind the will of all the citizens of its country despite their gender. If there is a gender that has suffered from injustice and backlash from society then government must make laws for their upliftment. E.g. the Dowry Prohibition Act, of 1961, the Rights of transgender person bill, of 2014, and The Immoral Traffic (Prevention) Act, of 1956, etc. have helped in increasing gender equality to much extent. The Supreme court has always played its role effectively when it comes to safeguarding and protecting fundamental rights by keeping a constant and effective check on the other organs of the government i.e., legislature and executive. According to Indian jurist Upendra Baxi, “Judicial activism is the use of judicial power to articulate and enforce counter ideologies which when effective initiates significant re-codifications of power relations within the institutions of governance.”[1] This means that the judiciary has the power to stop even the parliament and the elected government bodies from doing wrong to the citizens.

JUDICIAL DECISIONS ENSURING GENDER JUSTICE

There has been a lot of gender stereotyping in our country that has shown that Indian society has been rooted in patriarchy for years and years and its side effects have been rooted in the legal system as well. Cases like the Mathura Rape Case[2] and M. Kishwar v The State Of Bihar[3] an example of patriarchy prevailing in the apex court. Women in wedlock faced even more problems like in the case of Dadaji Bhikaji v Rukhmabai[4] where an 11-year-old girl was forced to marry a 19-year-old man. The decision in the case which was in favor of the women led to many objections in the conservative society but was also the beginning of a major change.

The decision lead to the question of various aspects of law and morality especially, gender neutrality, and how the judicial must abide by ARTICLE 14[5] and ARTICLE 16[6] of the Indian constitution. E.g. Nargesh Meerza Case[7], the apex court struck down the retirement age of 35 and also the pregnancy bar as the conditions were completely unconstitutional and unreasonable.

In the nineties, there were new divisions towards the rape laws in the country. The enlightenment of the country through various aspects such as the education of women, and globalization led to this change and helped in the revival of the judiciary for the betterment of society. Laws were made to protect women in workplaces. Landmark cases like Vishaka v The State of Rajasthan[8] made the apex court step in the shoes of a lawmaker to draft laws for ensuring that women can get equal opportunities to work and make a life for themselves. In the case State Of Maharastra v Madhukar Narayan Mardikar,[9] the court held that under ARTICLE 21 of the Indian constitution that even prostitutes have the right to privacy and cannot be sexually harassed just because of the nature of their profession.

In the case of Joseph Shine v Union Of India[10] the court overruled its judgment by decriminalizing adultery and reading it down from the Indian penal code holding that law was unconstitutional and making the consent of a wife worthless. Moreover, said that a rigorous punishment for interpersonal relationships will amount to an invasion of the right to privacy. However, Supreme Court in the case Shayara Bano v Union Of India[11] court interfered in the personal aspects of religions to ensure that women are not mere servitudes to their husbands.

The transgender community in India has faced systemic oppression from time to time and it was only after the 2014 Nalsa Judgement[12] they got heard and seen. This led to the passing of the Transgender Protection Act, of 2019 but it was not that effective till 2018 When Navtej Singh Johar  Union Of India[13] was passed and section 377[14] of IPC was decriminalized. Courts across the country have given progressive judgments to remove the bias and move towards a more gender-neutral and inclusive approach. Recently Madras high court directed the Tamil Nādu government to make a 24-word glossary to address the identities of the LGBTQA+ community.

MY OPINIONS

I believe that gender equality is a slow process and may take time to come within a society therefore, small steps taken towards it can lead to a greater and better future. So, I believe that steps taken by the judiciary are great but there is a need to spread awareness in the case of triple talaq Muslim women must be aware of the laws that are present to protect them r in case of section 377[15] is not legal and social aspects of this stigma related to the identity of the ‘third gender’ must be addressed. It must be ensured that the opinions and judgments are not forced on people and they accept them gradually.

CONCLUSION

Despite the Apex Court’s progressive judgments many protests follow. Like in the case of the Sabrimala temple[16] it is still difficult for women to enter the temple. Moreover, it is the legislature that must move along the judiciary but the dormancy of one on the other is still seen and is quite prevalent and further does not help in judicial activism. In the case of the transgender community the stigma is even higher and many times society has turned its ugly head toward them. The need for them to be accepted in society as the ‘third gender’ still prevails to ensure that they get access to basic healthcare, education, and human rights.

However, these progressive judgments are a form of judicial activism that will help in the betterment of the country. We need to understand that a society may not welcome a change that easily it takes time but when a country legalizes the basic rights of a person to live as a human with dignity and freedom it makes a huge impact on the life of that individual. The change in the judiciary is a welcoming one as it takes us a step closer to ultimate gender equality.

Author(s) Name: Riya Arora (Vivekanand Institute of Professional Studies, New Delhi)

References:

[1]  Upendra Baxi, ‘Courage Craft and Contention – The Indian Supreme Court in Eighties’ (1985) 28 (1) ILI

[2] Tuka Ram And Anr v State of Maharashtra (1979) 2 S.C.C. 143

[3] M. Kishwar v The State Of Bihar (1960) AIR 1864

[4] Dadaji bhikaji v Rukhmabai (1885) ILR 9 BOM 529

[5] Constitution of India 1950, art 14

[6] Constitution of India 1950, art 16

[7] Air India International v Nargesh Meerza (1981) 4 SCC 335

[8]Vishaka v State of Rajasthan (1997) 6 SCC 241

[9] State Of Maharashtra v Madhukar Narayan Mardikar (1991) 1 SCC 57

[10] Joseph Shine v Union of India (2017) Writ Petition (Criminal) No. 194/2017

[11] Shayara Bano v Union of India & Others (2017) 9 SCC 1

[12] National Legal Service Authority v Union of India (2013) Writ Petition (Civil) No. 604/2013

[13] Navtej Singh Johar v Union of India (2016) Writ Petition (Criminal) No. 76/2016

[14] Indian Penal Code 1860, s 377

[15] Ibid

[16] Indian Young Lawyers Association v State of Kerala (2006) Writ Petition (Civil) No. 373/2006