The Law in Action – Judicial Activism in Achieving Gender Justice

Author: Mishika Bajpai, Advocate, Supreme Court of India and High Court of Delhi

Abstract

All women have a Right to Equality, Dignity and Respect. This right to equality is a human right and has been adopted and absorbed by various democratic constitutions across the world. However, when this right is denied to women it results in discrimination against them, which in turn necessitates women empowerment. Gender inequality intersects with insufficient education, inadequate health care, and limited income to the discriminated ones. Such deprivations only thwart their abilities to protect themselves or make empowered choices for themselves and result in social and unequal economic status of women. When the efforts of the legislature in bringing about gender equality among men and women were proved futile, it was the judiciary which struck a balance in the manner the society was dealing with any issue related to gender.

This paper focuses on how the Indian and American judiciary have brought about significant changes towards women empowerment by their exhaustive decision making power.The heart of the paper is on a comparison of the approaches taken by Supreme Courts of both the jurisdictions. The Courts have, with due regard to the power of the legislature, recognised that emancipation of women begins with the decisional making progress, followed by economic development, and consequent improvement in a women’s ability to access the constituents of development towards better health amenities and education.

The author has put forth a careful compilation of judgments delivered over all these years to study the judiciary’s meticulous approach towards women empowerment by sensitizing the issue of equality amongst the two sexes. The landmark judgments delivered by the judiciary has seen a momentous change in the concept of gender equality. These cases shall evidence the fact that the Judiciary has treated women justice seekers with utmost respect and humility while keeping in mind the quandaries of gender discrimination.

Introduction

On January 21, 1648, when a woman stood up in the New World to request the right to vote for claiming her own land, and suing for debts, the Maryland Assembly denied her this request[1]. Margaret Brent became the first woman recorded to have demanded the right to vote. Men and women were allowed to plead their own cases before the courts, however women could only do so if they were unmarried, and Brent’s conscious decision to stay unmarried followed through. She then proceeded to use the courts as necessary to collect and pay debts owed. She even accepted commissions to act for others as attorney-in-fact, most often for her brother Giles Brent and for Lord Baltimore.[2] What was denied in the Assembly was rightly practiced before the Courts.

“The best protection any woman can have … is courage.”

      – Elizabeth Cady Stanton[3]

During the1800’s, when Elizabeth Cady Stanton’s father preferred another son over her, little did anyone envision that the same daughter would become one of the earliest and leading figures in the women’s rights movements in the United States of America, inspiring women across the globe. The 19thcentury suffragist and civil rights activist advocated liberalized divorce laws, reproductive self-determination, and greater sexual freedom for women, and became an increasingly marginalized voice among women reformers of that era.[4]

For centuries, women across the world have been socially and economically deprived of the rights they always deserved. They have been recognized as the submissive, subservient, docile, passive; the class that never confronted but conformed to all the indiscriminate behavior they were put through. In his classical writing “Origin of the Family, Private Property and the State” Friedrich Engels[5] pointed out that the emancipation of women could only be possible if they took part in production on a large, social scale, and their domestic chores could not claim anything but an insignificant amount of their time. Rightly so, because, inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the confines set by stereotypes, rigid gender roles and prejudices.”[6] The judiciary in this regard has regulated the relationship between the two sexes and has bridged the gap between them to a very large extent.

At this point it necessary to note that it is not the case where women rights have not been protected by the legislature, rather there have been numerous laws enacted by legislators aiming at women development. The United Nations adopted The Universal Declaration of Human Rights in 1948 which proclaimed equal entitlements of women and men to the rights contained in it.[7]  The Constitution of India, 1950 has a set of positive and negative rights enshrined throughout the Constitution and its Preamble towards protection of women.[8] While the United States Constitution, signed on 1787, did not overtly mention women or limit of their rights or privileges to males, the usage of the word “persons” was used as being gender neutral. However, there were many rights such as the ‘right to property’ and the ‘right to vote’, amongst other rights which were not easily granted to women. Despite the above and many other legal provisions and enactments upholding the constitutional mandate to combat this pervasive social discrimination, flagrant violations of international human rights norms and national constitutions followed.

Judicial Activism in India and USA

“So, can a woman get impartial justice from a man? Or conversely, can a man get impartial justice from a woman? The answer is … ‘Yes’ … in both cases. But judges have to learn the language of equality and be impartial and try and place themselves alternately in the shoes of the two disputants and appreciate the problem and give an objective decision. This process of learning the language of equality is slow — but has to be encouraged. Otherwise there will be no equality and no justice. As one learns a new language when one goes to a new country, so must we learn the language of equality as we enter a new century, with hope and with desire to remove injustice.”

  • Late Justice Leila Seth[9]

The law that regulates the relationship between people also gives the power to the courts to understand this relationship and make amends adapting to society’s changing needs. The Courts, as the guardian of our rights, have time and again taken affirmative steps in the realm of women empowerment. The sustenance of gender justice and equality amongst women and men is the cultivated accomplishment of intrinsic human rights. Not only benefits have been extended but age-old legislations with inequalities have been read down by the Courts. While working on enabling the legislature to enact statutes moving towards gender justice, the Courts have also exercised their writ jurisdictions to check any violations of legal and fundamental rights. At every stage, pre-trial, during the trial and post trial, the Courts have exhibited extra precaution in deciding cases involving women.

Ever since the 19th century an upsurge of women empowerment litigation has been witnessed following a forceful dialog.  As women’s rights issues keep coming into national and international spotlight time and again, it is important to identify the significant milestones that led to their voice being heard and subsequently redefined their rights in our patriarchal society. A determined yet sensitized judiciary viewing each and every case in a holistic manner molded the existence and enjoyment of rights for women in USA and India with praiseworthy judicial activism[10]. This made evident that a qualitative justice dispensation had no place for predilections or an obdurate judicial formalism[11].

Right to life

Voluntary Health Assn. of Punjab v. Union of India, (2013) 4 SCC 1

The Parliament vide the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 wanting to prevent the practice of use of pre-natal diagnostic techniques for eliminating female foetus, however, could not effectively implement its functioning due to improper monitoring, the violators repeated this crime without facing any penal action.

The Supreme Court tackled the issue and gave several directions which were, inter alia, constitution of a Central Supervisory Board and the State and Union Territories Supervisory Boards for the supervision of effective implementation of the Act. The violators were to face suspension of registration and cancelation of license to practice. All the authorities had to ensure that all genetic counseling centers, genetic laboratories and genetic clinics, infertility clinics, scan centers, etc. using pre-conception and pre-natal diagnostic techniques and procedures would maintain all records and all forms, required to be maintained under the Act.

Right To Livelihood, Equal Opportunities In Employment And Benefits Thereof

Bradwell v. State of Illinois, 83 US 130 (1872)

The legal right of a woman to practice a professional career significantly changed after this 1872 judgment.

Myra Bradwell, a married woman, claimed to be admitted to practice as an attorney and counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect. The Court proceeded to distinguish between the two sexes and found that Civil Law itself had recognized a wide difference in the respective spheres and destinies of man and woman.

“So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.[12]

The Supreme Court of United States, thus, concluded that laws of Illinois complained of were not ‘obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States’.[13] It is noteworthy, that the Chief Justice dissented from the judgment of the court, and from all the opinions.[14]

Muller v. Oregon, 208 U.S. 412 (1908)

One of the earliest cases which resulting in igniting the fire in the hearts of women who were said to be “dependent upon man”[15]. The Supreme Court of US upheld the Oregon state law limiting women to working no more than ten hours a day and called it a legislation securing a ‘real equality of right’[16] properly placing them in a separate class. The Court found thus –

 

“Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, may, without conflicting with the provisions and this control in various forms, with diminishing intensity, has continued to the present. As minors, thought not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet even with that and the consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right.”[17]

The Court rightly or wrongly understood the two sexes differently, by their structure of body, in the functions each performed, in the amount of physical strength, in the capacity for long continued labor, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This case led to a widespread public discussion of women’s equal contractual and personal rights with men.

It is interesting to note, that even though the Fifteenth Amendment[18] to the United States Constitution, adopted on February 3, 1870 gave all male citizens of the USA, regardless of “race, color, or previous condition” of servitude, the right to vote; the women only got this right 50 years later, on August 18, 1920, after strong women’s right movements led by suffragettes resulting in the 19th Amendment: “Universal Suffrage”.[19]

Adkins v. Children’s Hospital, 261 US 525 (1923)

As a positive change in favor of the women laborers, the Supreme Court in the instant case struck down a legislation which regulated the wages of women laborers. The US Court distinguished between the laws, one regulating the hours of work (See Muller v. Oregon) and another regulating wages. Citing and upholding the Muller’s principle[20], the Court viewed the changes that had taken place in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment[21] and observed that these differences had had come to a vanishing point. Muller v. Oregon was not overturned[22], however.

“In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”[23]

The Muller protective legislation was trumped by Title VII of the Civil Rights Act of 1964[24]with no accompanying legislative history. Another shield against employment discrimination – sex – was added by a last minute floor amendment.[25]

Phillips v. Martin Marietta Corp, 400 US 542 (1971)

Even though the Civil Rights Act of 1964 was in place to prohibit all forms of discrimination for employment, an employer (Martin Marietta Corporation) had refused employment to a woman on the ground that it was not accepting job applications from women with pre-school-age children (while hiring men with children of the same age). Upon challenge to the same the Court of Appeals erred in the reading of Section 703[26] of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex and national origin and upheld the prohibition. Upon challenge to the above the Supreme Court vacated the earlier order and remanded the matter for further consideration.[27]

Justice Marshall while concurring with the above view, further stated, “By adding the prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes”.[28]This meant that characterizations of domestic roles of the sexes were not to serve as predicates for restricting employment opportunity. No such ‘bona fide occupational qualification’ could ever swallow the rule that allowed equal opportunity to all.[29]

Frontiero v. Richardson, 411 U.S. 690 (1973)

The Court applied the judicial scrutiny to a federal statute which required female Air Force officers, but not male officers, to prove that their spouses were in fact dependant on them for support – before increased medical benefits would be made available to them.[30] The Court, while holding that this classification was unreasonable, found that the legislation to be premised on the outdated and unsupported presumption of a wife’s dependency for support on her husband.[31]The US Court allowed the spouses of military women to receive the same benefits as did the spouses of men in the military.

“By according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband.”[32]

The Supreme Court has stood for striking down classifications that discriminate against females, yet been vigilant to preserve laws that favor them.[33]

Right to privacy and decision making

Roe v. Wade, 410 US 113 (1973)

The relevant Texas law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother. This case concerned the right of an unmarried pregnant woman to terminate her pregnancy by abortion.[34] The constitutionality of the said law was questioned on the ground that the said law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and therefore violative of ‘liberty’ guaranteed under Fourteenth Amendment[35] and the right to privacy recognised in Griswold’s case[36].

Even when considering the detriments that a state legislation might impose upon the pregnant woman by denying this choice was considered by the US Court while finally concluding that the right of privacy is broad enough to cover the abortion decision.[37] The right, the Court stated, was nonetheless, not absolute and was subject to limitations wherein that the state may put regarding protection of health, medical standards, and prenatal life.[38]

Expressly affirming the Roe v. Wade principle, the Court held that a woman had a fundamental right to make the choice to have an abortion prior to the time that the fetus became viable while permitting only such regulation of the abortion procedure that it did not impose an “undue burden” on the woman’s right to choose to have an abortion.[39]

Right to property and inheritance

V. Tulasamma v. Sesha Reddy, (1977) 3 SCC 99

Even when the Legislature had enacted The Hindu Succession Act, 1956 which under Section 14(1)[40] provided that property of a female Hindu was to be her absolute property, a widow was denied of alienation of her husband’s property in her possession, by giving the above provision of law a limited reading.

The Supreme Court of India granted relief to the widow by laying down that Section 14(1) and the Explanation thereto had been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.[41] The Court further addressed the issue of ownership as a right against the world and not one restricted to familial ties.

“The right of the widow to be maintained is of course not a jus in rem since it does not give her any interest in the joint family property but it is certainly jus ad rem i.e. a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property.”[42]

Mrs. Mary Roy v. State of Kerala, (1986) 2 SCC 209

This path breaking judgment decided against the constitutionality of the provisions of Travancore Christian Succession Act, 1092, wherein Christian women in Kerala could only inherit one-fourth (1/4th) of the share of the sons in her father’s property. These provisions were declared to be unconstitutional and void as being violative of Article 14[43] of the Constitution of India.[44] The Court also declared that intestate succession to the property of Indian Christians in the territories of the former State of Travancore was governed by the provisions contained in Chapter II of Part V of the Indian Succession Act, 1925, thus giving Christian women an equal share in their father’s property.[45]

Right to Education

United States v. Virginia, 518 U.S. 515 (1996)

In this case, the US Supreme Court noted that the state must demonstrate “exceedingly persuasive justification’[46] on the ground of which they intend to discriminate between two genders. The State of Virginia failed to do so when it excluded women from the educational opportunities provided by Virginia Military Institute thereby denying the equal protection of the laws. It is extremely important that colleges and universities deal with faculty, staff, and students without regard to sex, race, or ethnic origin.[47]

The U.S. Supreme Court in another decision found unconstitutional the exclusion of men from an all-female nursing school.[48]

The heightened assessment standards applicable to gender-based classifications do not make gender a proscribed classification, but this categorization by gender could be used to create or perpetuate the legal, social, and economic inferiority of women.[49]

Right to maintenance

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556

The Supreme Court of India in this case ruled in favor of the divorced wife (Shah Bano) and directed maintenance from her ex-husband under Section 125 of the Criminal Procedure Code, 1973[50] (with an upper limit of Rs. 500 a month) putting Shah Banu, a muslim wife, under the same ambit as any other Indian woman.

“Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife?” The Court not only questioned its inequality but also clarified that the provisions of the Criminal Procedure Code were secular and it was irrelevant whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens. The Court explained that such provisions essentially of a prophylactic nature cut across the barriers of religion. They do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes.

The Supreme Court assumed the role of a reformer and surmised it on the legislative intention of having a uniform civil code throughout India under Article 44 of the Constitution of India.

Danial Latifi v. Union of India, (2001) 7 SCC 740

The 5 judge bench of the Supreme Court upon interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986 observed that deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India could not be stated to have been effected by a reasonable, right, just and fair law.

The aforementioned Act allowed maintenance to a divorced woman only during the period of iddat, or till ninety (90) days after the divorce in accordance with the provisions of Islamic law. This was however, in stark contrast to Section 125 of the Criminal Procedure Code, 1973 which provided for general maintenance for wives, children and parents, irrespective of religion. The Act was also seen as diluting the effect of the Shah Bano case.

The Court stated that the provisions of the Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board did not appear to be reasonable and fair substitute of the provisions of Section 125, Criminal Procedure Code.

“In Shah Bano case [(1985) 2 SCC 556 : 1985 SCC (Cri) 245] this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman.”

The Act in question was only given appropriate reading upholding its validity in as much as fair and reasonable provisions were made for the divorced wife including her maintenance. Overcoming the limitation of the iddat period, the Court held that such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of the Act. Again, reading the provisions of the Act in favor of the divorced women the Court noted that “nowhere has Parliament provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.”

Protection from sexual harassment at workplace

Meritor Savings Bank v. Vinson, 477 US 57 (1986)

The Supreme Court held that sexual harassment that creates a hostile work environment is a form of sex discrimination prohibited by Title VII[51] of the Civil Rights Act of 1964 (which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion).[52]The Court laid that there was no raison d’être to not apply the principle of hostile environment discrimination to sexual harassment cases, provided that the plaintiff establish a violation of Title VII by showing that discrimination based on sex created a hostile or offensive work environment.[53]

In defining “sexual harassment,” the Court noted that the Equal Employment Opportunity Commission’s Guidelines on Discrimination Because Of Sex[54] included “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” The Guidelines also provided that such sexual misconduct constitutes prohibited “sexual harassment”, whether or not it is directly linked to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”[55]

Vishaka v. State of Rajasthan, (1997) 6 SCC 241

A three-judge bench in 1997 in the absence of domestic law formulating any effective measures to check the evil of sexual harassment of working women at all workplaces, sought to examine the international conventions and norms for the purpose of guaranteeing of gender equality and right to work with human dignity. The Court deliberated over these international conventions in line with Articles 14[56], 15[57], 19(1)(g)[58] and 21[59] of the Constitution of India.

 

The Court not only found that the meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse; it also stated that gender equality included protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.

 

Reaching its pinnacle in judicial activism the Court laid down guidelines and norms making it necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women. These guidelines not only defined sexual harassment behaviors, but also provided for Preventive Steps, Criminal Proceedings against perpetrators and third party harassers, Disciplinary Action, Complaint Mechanism with a Committee, Worker’s Initiative and Awareness against the evil sought to be remedied.

 

The above verdict was superseded by the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Gender neutral laws

Orr v. Orr, 440 US 268 (1979)

Though alimony was also a woman centric issue and has historically been awarded only to women, the convention now permits an award of alimony to either spouse.

The Supreme Court invalidated on equal protection grounds statutes providing that husbands, but not wives, may be required to pay alimony upon divorce and thus casted off the assumption that wives are dependent upon their husbands for financial support but husbands are never dependent on wives.[60]

“To withstand scrutiny’ under the equal protection clause, ‘classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.”[61]

It is noteworthy that the above decision did not only recognize the right of husbands to financial sustenance, but it also considered women to be as capable and competent as men so as to financially support them. This was a crucial detachment from the age old theory (See Muller v. Oregon) that a woman has always been dependent upon man.

Sessions v. Morales-Santana, 582 U. S. ____ (2017)[62]

The Immigration and Nationality Act provides the framework for acquisition of U. S. citizenship from birth by a child born abroad, when one parent is a US citizen and the other a citizen of another nation. The main rule applicable to the present case was the requirement of the US-citizen parent to have ten years’ physical presence in the United States prior to the child’s birth, “at least five of which were after attaining” age 14. The rule is made applicable to unwed US -citizen fathers, but by another provision, it created an exception for an unwed US-citizen mother, whose citizenship can be transmitted to a child born abroad if she has lived continuously in the United States for just one year prior to the child’s birth.

The Court held that the gender line drawn by the Legislature was incompatible with the Fifth Amendment’s requirement[63] that the Government accord to all persons “the equal protection of the laws. The Government must show, at least, that its gender-based that the classification serves “important governmental objectives and that the discriminatory means employed” are “substantially related to achieving those objectives.”[64]  The Court noted that the provisions under challenge dated from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women were.[65] At present, however, laws granting or denying benefits “on the basis of the sex of the qualifying parent,” differentiate on the basis of gender, and therefore attract heightened review under the Constitution’s equal protection guarantee.

Way forward – Institutionalization

This gender-justice-sensitization brought by the judiciary needs to be institutionalized invariably. Today a record 47 women were elected to the House of Representatives, 24 for the first time, in what became known as “The Year of the Woman”[66]. India, too, has set a record which we are all more than proud of. According to US-based ‘fact tank’ Pew Research Center, India is leading when it comes to countries where women have been at the helm for many years.[67]

Indeed, institutionalization is being witnessed in the very judiciary only with a rise in women judgeship. In a first, women judges were heading all the major High Courts in India, the same historical High Courts, which were among the first few created in colonial India.[68] The Delhi High Court bid adieu to its first lady Chief Justice, G. Rohini, who retired from her post on 13th April 2017. Delhi High Court is now being headed by Acting Chief Justice Gita Mittal. Justice Indira Banerjee was elevated as Chief Justice of Madras High Court on 5th April, 2017. Justice Manjula Chellur, who first assumed the office of Chief Justice of Calcutta High Court in August 2014, became the first ever woman Chief Justice of Calcutta High Court. She then proceeded to assume the office of Chief Justice of the Bombay High Court in August 2016.In the Calcutta High Court, Justice Nishita Mhatre, had been appointed as the Acting Chief Justice on December 1, 2016. It is noteworthy, upon Justice Nishita Mhatre’s retirement with effect from 20.09.2017; Justice Rakesh Tiwari was appointed Acting Chief Justice of Calcutta High Court.[69] However, it is pertinent to note that there is only one woman judge, Justice R. Banumathi, in the Supreme Court as against 24 male judges..

While women have been raising the bar in every walk of life, conversely, there are still prevalent cases of discrimination and sexism against their success. It is rather surprising that nowadays, where the general public is looking past any gender bias and is choosing lawyers based on competence not gender, women practitioners have been subjected to subtle sexism at the bar numerous times[70]. Most leading companies encourage women labor-force participation and ensure that women hold senior positions in companies to make strong business sense.[71] Yet, there are gender pay gaps existing between male and female engineers and there are eight times as many men as women in the industry.[72] There is also a huge chance that a female doctor might get bogged down by her gender. A doctor’s gender can still be a huge block to their career – especially when it comes to family commitments.[73]

“Of   all   the   evils   for   which   man   has   made   himself responsible, none is so degrading,  so shocking or so brutal as his abuse of the better half of humanity; the female sex.” ­

  • Mahatma Gandhi

As long as the society is wary of such detestable conduct, it will not be an uphill task for the law enforcers to curb these insensitivities. However, looking at the majority of odds against women in today’s sexist world, there is a need for continuous supervision of any gender bias or discrimination against women. Since judiciary is the guardian of our rights, any gender bias shall be carefully guarded against in or outside the realm of the courtroom and this protection should be extended to all female justice seekers or attorneys or even judges. Not women, but any unbecoming behavior against their very dignity shall be ostracized.

Conclusion

The landmark judgments delivered by the Indian and US judiciary, bear testimony to the fact, that judges have shown more gender sensitivity than any other institution. Much against the straightjacket philosophy of the 16th century jurist Francis Bacon in his Essay of Judicature who said “Judges ought to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law[74], Judiciary has not limitedly focused on judicial formalism. It has consciously influenced social philosophy and balanced its judicial function, and yet been wary of trespassing into the sphere demarcated for the legislature, nonetheless bringing justice to and strengthening the scope of women’s rights each time.

“It is now acknowledged by leading jurists all over the world that judges are not descusitized and passionless instruments which weigh on inanimate and impartial scales of legal judgment, the evidence and the arguments presented on each side of the case. They are not political and moral eunuchs able and willing to avoid impregnating the law with their own ideas and judgment. The judicial exercise in constitutional adjudication is bound to be influenced, consciously or subconsciously, by the social philosophy and scale of values of those who sit in judgment”

                                                                                                – Late Justice P.N. Bhagwati

Whilst it is abundantly clear, the purpose of achieving “social justice” as enshrined in the Preamble to our Constitution is to secure the rule of law for all its citizens, justice, liberty, equality and fraternity. Therefore, when the Preamble itself highlights achieving their social justice, it becomes the bounden duty of the honorable courts to advance the cause of the social justice. It would proper to state that worthy normative goals of social justice (herein gender equality),can be and are served at least as well by observing foundational principles of impartiality, responsiveness, and sensitivity, as equally by allegiance to judicial activism. Thus, till the Courts, as the interpreters of law, continue to bridge the much widened gaps between the two genders, correct uncertainties in legislations, and harmonize results with justice through a method of free decision, the undying faith in the judiciary shall continue.

[1] Assembly Proceedings, January to March, 1647, available at  http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000001/pdf/am1–215.pdf

[2]Carpenter, Stephanie, “Margaret BrentIn American National Biography. New York: Oxford University Press, 1999 at pp. 57, 58;Hymowitz, Carol and Weissman, Michaele, A History of Women in America: From Founding Mothers to Feminists-How Women Shaped the Life and Culture of America, Random House Publishing Group (2011) at pp. 6, 7.

[3]Mattern,Joanne, (2003) Elizabeth Cady Stanton and Susan B. Anthony: Fighting Together for Women’s Rights, Rosen Publishing Group, p.12

[4] Elizabeth Cady Stanton,  The Solitude of Self, Speech delivered to the Committee of the Judiciary of the United States Congress (1892), available at http://www.womenspeecharchive.org/files/The_Solitude_of_Self_1192139082217.pdf ; Elizabeth Cady Stanton,  Address on Woman’s Rights, (1848), available at http://www.womenspeecharchive.org/files/Stanton_1848_Address_on_Womans_Righ_AFA7F90141C50.pdf

[5]Engels, Friedrich, (1942) Origin of the Family, Private Property and the State, New York, International Publishers.

[6] Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention, para. 22.

[7]  Equal rights as to marriage, during marriage and at its dissolution (Article 16), right to equal pay for equal work (Article 23), education (Article 26), full equality to a fair and public hearing by an independent and impartial tribunal (Article 10), equal suffrage and access to public service (Article 21) and that all human beings are born free and equal in dignity and rights, endowed with reason and conscience to act towards one another in a spirit of brotherhood (Article 1), and equal entitlements of women and men (Article 2, Article 7).

[8]‘Equality before law’ and ‘Equal protection of laws’ (Article 14), securing just and humane conditions of work and for maternity relief (Article 42), power to the State to make special provisions favoring women (Article 15(3)), to promote harmony and to renounce practices derogatory to the dignity of women (Article 51A(e)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every Panchayat (Article 243D(3)), reservation of seats for women belonging Scheduled Castes and the Scheduled Tribes in every municipality (Article 243 T (3) and Article 243T (4)). Non-discrimination on the basis of sex (Article 15), equal pay for equal work (Article 39), non-discrimination on the basis of sex regarding employment (Article 16).

[9] Justice Leila Seth was appointed as the first woman judge of Delhi High Court in 1978 and the first woman Chief Justice of the Himachal Pradesh High Court in 1991.

[10] See, Justice        Bhagwati, P.N., Judicial Activism and Public Interest Litigation 23 Colum. J. Transnat’l L. 561 (1984-1985); S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol’y 029 (2001); Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, The American Journal of Comparative LawVol. 37, No. 3 (Summer, 1989), pp. 495-519

[11] See, e.g., H.L.A. Hart, The Concept of Law 124-30 (1961) (formalism as refusal to acknowledge necessity of choice in penumbral area of rules); M. Horwitz, The Transformation of American Law 254 (1977) (formalism as refusal to recognize instrumental functions of law); Strauss, Formal and Functional Approaches to Separation-of-Powers Questions?A Foolish Inconsistency?, 72 Cornell L. Rev.488, 489 (1987) (formalism as refusal to acknowledge practical consequences of judicial decisions); Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502, 1506-07 (1985) (formalism as artificial narrowing of range of interpretive choices)

[12]83 US 130, 141 (1872)

[13]Id. at 142

[14]Id.

[15]Pauli Murray, The Rights of Women, in The Rights Of Americans: What They Are—What They Should Be, Norman Dorsen (1971) 521, 525; See AlsoBrief of American Civil Liberties Union as Amicus Curiae at 37 n.46, 37–39, Frontiero v. Laird, 411 U.S. 677 (1973) (quoted Murray and criticized Muller, noting that Muller “has become a major roadblock to women seeking equal opportunities for remuneration and promotions in blue-collar employment”).

[16]208 U.S. 412, 422 (1908)

[17]Id. at 421

[18]Fifteenth Amendment, US Constitution – Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-16.pdf

[19]Nineteenth Amendment, US Constitution – The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Available at https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016-10-20.pdf

[20] 261 US 525, 563, 567 (1923)

[21]Supra,note 17

[22] 261 US 525, 569 (1923

[23] 261 US 525, 553 (1923)

[24]The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[25]See generally Jo Freeman, How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 LAW & INEQUALITY 163 (1991)

[26]Section 703, Civil Rights Act of 1964 – Discrimination Because Of Race, Color, Religion, Sex, Or National Origin

[27] 400 US 542, 544 (1971)

[28]Id. at 545

[29]Id. at 545; The prohibition against job discrimination based on sex to the 1964 Civil Rights Act Congress intended to prevent employers from refusing “to hire an individual based on stereotyped characterizations of the sexes.”Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 CFR §1604.1(a)(1)(ii).See Bowe v. Colgate-Palmolve Co., 416 F.2d 711 (CA7 1969); Weeks v. Southern Bell Tel. &Tel. Co., 408 F.2d 228 (CA5 1969). Even characterizations of the proper domestic roles of the sexes were not to serve as predicates for restricting employment opportunity.

[30] Frontiero v. Richardson 411 U.S. 677 (1973)

[31]Id. at 681

[32]Id. at 684

[33] Ginsberg, SomeThoughts on Benign Classification in the Context of Sex, 10 CONN. L. REV. 813. 818 (1978)

[34]See Abortion: Roe v. Wade, 410 U.S. 113 (1973), Doe v. Bolton, 410 U.S. 179 (1973), 64 J. Crim. L. & Criminology 393 (1973)

[35]Fourteenth Amendment, US Constitution (ratified in 1868) – Rights Guaranteed Privileges and Immunities of Citizenship, Due Process and Equal Protection – Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[36] Rejecting a state law that makes it illegal to disseminate information about contraception to married couples, the U.S. Supreme Court rules in Griswold v. Connecticut (381 U.S. 479) that people enjoy a fundamental zone of privacy.

[37] 410 U.S. 113, 152-153

[38]Id. at 153-155

[39] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 872-876 (1992); See generallyMichael Hill, Why Overturning Roe v. Wade Could Cost Republicans VotesCloseUp, SEATTLE TIMES, July 27, 2005, at A3; Siegel, Reva B., Before (and After) Roe v. Wade: New Questions About Backlash (2011). Faculty Scholarship Series. Paper 4135.

[40]Section 14(1), Hindu Succession Act, 1956 – Property of a female Hindu to be her absolute property (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

[41] (1977) 3 SCC 99, 122

[42]Id.  at 144

[43]Article 14, Constitution of India, 1950 – Equality before Law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[44] (1986) 2 SCC 209, 211

[45]Id. at 214

[46]  See Mississippi Univ. for Women v. Hogan, 458 U. S. 718, 724 (1982)

[47] 518 U. S. 515, 525 (1996)

[48]Mississippi University for Women v. Hogan, 458 U.S. 718 (1982)

[49] Weinberger v. Wiesenfeld, 420 U. S. 636, 643, 648;  United States v. Virginia, 518 U.S. 515, 531-534; See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women)

[50]Section 125, Code of Criminal Procedure, 1973 – Order for maintenance of wives, children and parents – (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

[51] The Title VII of the Civil Rights Act of 1964 provided that the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. Available at  https://www.justice.gov/sites/default/files/crt/legacy/2010/12/15/Title_VII_Statute.pdf

[52]See Suzanne Egan, Meritor Savings Bank v. Vinson: Title VII Liability for Sexual Harassment, 17 Golden Gate U. L. Rev. (1987). http://digitalcommons.law.ggu.edu/ggulrev/vol17/iss3/3

[53] 477 US 57, 66, 71 (1986)

[54] EEOC Guidelines on Discrimination Because of Sex, available at http://lor.gvtc.org/uploads/SEC622/EEOCGuidelines.pdf , accessed on 10th June, 2017

[55]See generally, McDonnell Douglass Corp. v. Green, 411 U.S. 792,801 (1973) (“In the implementation of [employment decisions], it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise.”); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707 n.13 (1971) (“In forbidding employer’s to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sexual stereotypes. [Title VII] subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past.”)

[56]Ibid

[57]Article 15, Constitution of India, 1950 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[58]Article 19(1)(g) , Constitution of India, 1950 – Protection of certain rights regarding freedom of speech, etc. – All citizens shall have the right – to practise any profession, or to carry on any occupation, trade or business.

[59]Article 21, Constitution of India, 1950 – Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

[60] 440 U.S. 268, 281-82 (1979)

[61] 440 U.S. 268, 279 (1979).

[62]  Available at https://www.supremecourt.gov/opinions/16pdf/15-1191_2a34.pdf

[63]Fifth Amendment, US Constitution – No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Available at https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-6.pdf

[64] Virginia, 518 U. S., at 533

[65] See, e.g., Hoyt v. Florida, 368 U. S. 57, 62 (1961) (women are the “center of home and family life,” therefore they can be “relieved from the civic duty of jury service”); Goesaert v. Cleary, 335 U. S. 464, 466 (1948) (States may draw “a sharp line between the sexes”)

[66] See https://www.nytimes.com/interactive/2017/04/02/us/02timeline-listy.html?rref=collection%2Fissuecollection%2Fwomen-today-20170402&_r=0

[67] Abigail Geiger, Lauren Kent, Number of women leaders around the world has grown, but they’re still a small group, (8th March, 2017) available at http://www.pewresearch.org/fact-tank/2017/03/08/women-leaders-around-the-world/ ; accessed on 10th June, 2017

[68]Dhananjay Mahapatra, In a first, women judges head all major High Courts in India, (8th April, 2017) available at http://timesofindia.indiatimes.com/india/in-a-first-women-judges-head-all-major-high-courts-in-india/articleshow/58073977.cms

[69]Saba, Justice Rakesh Tiwari appointed Acting Chief Justice of Calcutta High Court, (19th September, 2017) available at http://blog.scconline.com/post/2017/09/19/justice-rakesh-tiwari-appointed-acting-chief-justice-of-calcutta-high-court/

[70] Poulomi Banererjee, When the bar has a male tilt: Gender imbalance in the judiciary, Hindustan Times, (23rd October, 2016) available at http://www.hindustantimes.com/india-news/when-the-bar-has-a-male-tilt-gender-imbalance-in-the-judi/ciary-and-its-impact-on-verdicts/story-VuSxHvVDfClbi3ycmZyJgO.html, accessed on 3rd June, 2017.

[71] Roshika Singh, MoreWomen Employees And Leaders, A Crying Need In Indian Companies (1st June, 2017) http://www.huffingtonpost.in/roshika-singh/more-women-employees-and-leaders-a-crying-need-in-indian-compan_a_22092709/

[72]Radhika Sanghani, Male-dominated engineering has an 87 per cent gender gap – but it pays pretty well; (23rdJune, 2015) available at http://www.telegraph.co.uk/women/womens-business/11692996/Women-In-Engineering-Day-Gender-gap-in-male-dominated-industry-falls.html ; accessed on 10th June, 2017.

[73] Gráinne Ní Aodha, Don’t keep it a secret’: One in five female doctors has been sexually harassed at work, (2nd June, 2017) available at http://www.thejournal.ie/sexism-in-the-healthcare-sector-3421687-Jun2017/, accessed on 10th June, 2017

[74] See The Works of Francis Bacon available at https://www.stmarys-ca.edu/sites/default/files/attachments/files/Essays.pdf

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