Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, writes on how our judicial system promotes gender equality.
Equality of status and equality of opportunity is the clarion call of our Constitution. According to the framers of our Constitution equality could only be amongst equals; otherwise it might result in injustice. Hence, they proposed the concept of substantive equality, whereby special provisions were made for unequals to bring them at par with the equals. They saw women as victims of the rigid hierarchical social system, and hence, introduced Article 15 (3) in the Constitution directing the State and all its machineries to take affirmative action and protective discrimination to alleviate centuries of exclusion of women from politics, education and public employment. It goes to the credit of Judiciary that the Supreme Court and the various High Courts, in their plethora of decisions, have recognized and given effect to this 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. This is very clear and pronounced in service laws.
The Judiciary has always molded itself into the role of champion for women's rights. If any adverse discrimination against women, was noted by the Judiciary in any of the existing laws and State actions, the Judiciary was quick to strike it down. At the same time, Judiciary has been prompt to uphold the validity of the Legislations enacted for protection of women's rights. In the case of Government of Andhra Pradesh Vs. P.B. Vijaykumar & Ors. AIR 1995 SC 1648 , 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 guarantees, 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 has, in this decision, upheld the reservation of seats for women in Municipal and Panchayat Elections in Managing Committees of State Co-operative Societies and in employment.
In the recent Judgment of Charu Khurana and Others Vs. Union of India 2015 (1) SCC 192, the Apex Court has once again expounded the concept of Gender Justice by observing that, “though there has been formal removal of institutionalised discrimination, yet, the mind set and attitude ingrained in the subconscious have not been erased.”
In Rajesh Kumar Gupta Vs. State of Uttar Pradesh 2005 (5) SCC 172 , 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 as primary school teachers, 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 a.
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The Apex Court's Judgment in the case of C.B. Muthamma Vs. Union of India 1979 SC 1868 , is an 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 has, in this decision, also impressed upon the Government, the need to overhaul all Service Rules and remove the stain of sex discrimination., Judiciary has thus always stood for protection of women's rights. Even when the Legislation on the particular point was silent, the 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 Vs. Female Workers AIR 2000 SC 1274 , the Supreme Court held that, temporary workers are also entitled to maternity benefits.
Time and again, the Apex Court, when faced with gender discrimination in service laws, has been sensitive and responsive to address it. For example, in the case of Neera Mathur v/s L.I.C. AIR 1992 SC 392 the Supreme Court has addressed the issue of the women’s right to privacy and dignity by directing the L.I.C. to delete personal and offensive questions in the application form, like the date of last menstrual cycle, which infringeon the right of privacy under Article 21 of the Constitution. In the path - breaking judgment of Vishakha v/s State of Rajsthan (1997) 6 SCC 241 the Supreme Court laid down guidelines for prevention of sexual harassment of women at work place, thereby filling the gap in the domestic laws, taking recourse to International treaties.
On the issue of “equal pay for equal work”, the Supreme Court has in the case of Associate Banks Officers' Association Vs. State Bank of India , AIR 1998 SC 32 upheld the Equal Remuneration Act and held that, women workers are in no way inferior to their male counterparts. Hence, there should be no discrimination on the ground of sex against women in payment of remuneration.
In the case of Air India Cabin Crew Association Vs. Union of India 2011 (12) SCALE 637, the Air-Hostesses had challenged the policy of appointing only males as In-Flight Supervisors, on the ground that it was patently discriminatory, 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 gender grounds.
In the case of Anuj Garg V/s Hotel Association of India (2008) 3 SCC 1, the apex court declared section 30 of Punjab Excise Act 1914, which prohibited employment of women in any part of such premises in which liquor or intoxicating drugs were consumed by the public, as unconstitutional, holding that right to self-determination is an important off-shoot of the gender justice discourse. Hence instead of putting curbs on women’s freedom, their empowerment would be a more tenable and a socially wise approach. On the same analogy, the closure of Dance-bars was declared to be affecting women’s right to earn livelihood.
Time and again, the Apex Court, when faced with gender discrimination in service laws, has been sensitive and responsive to address it.
In the recent Judgment of Charu Khurana and Others Vs. Union of India 2015 (1) SCC 192, the Apex Court has once again expounded the concept of Gender Justice 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 had refused to issue Makeup Artist Card to the Petitioner on the ground of her gender, so that the male members were not deprived of work as Makeup Artist. While referring to Fundamental Duties provided under Clauses (e) and (j) of Article 51-A, the Supreme Court, held that, “it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced”. The discrimination faced by women in military service, of being denied permanent service commission , though equally competent and eligible as their male counterparts, has also been done away in the judgment of Annie Nagraja and Ors. V/s Union of India 2015 SCC On Line 11804 by the Delhi High Court.
While elaborating the concept of 'Equality', as envisaged by Dr. Babasaheb Ambedkar and as embodied in the Constitution, the Courts have, through their decisions, taken major strides towards empowerment of women.
Shalini Phansalkar Joshi. J, Former Judge, High Court of Bombay, is guest writer with Population First. This series is being published in collaboration with Laadli. The views expressed are the author’s own.