{"id":7036,"date":"2017-09-25T20:53:36","date_gmt":"2017-09-25T15:23:36","guid":{"rendered":"http:\/\/lex-warrier.in\/?p=7036"},"modified":"2023-07-01T15:59:19","modified_gmt":"2023-07-01T15:59:19","slug":"law-action-judicial-activism-achieving-gender-justice","status":"publish","type":"post","link":"https:\/\/lex-warrier.in\/archives\/law-action-judicial-activism-achieving-gender-justice.html","title":{"rendered":"The Law in Action \u2013 Judicial Activism in Achieving Gender Justice"},"content":{"rendered":"

Author: Mishika Bajpai<\/strong>, Advocate, Supreme Court of India and High Court of Delhi<\/p>\n

Abstract<\/h2>\n

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<\/a> 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.<\/p>\n

This paper focuses on how the Indian and American judiciary have brought about significant changes towards women empowerment<\/a> 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\u2019s ability to access the constituents of development towards better health amenities and education.<\/p>\n

The author has put forth a careful compilation of judgments delivered over all these years to study the judiciary\u2019s 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.<\/p>\n

Introduction<\/h2>\n

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]<\/a>. 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\u2019s 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]<\/a> What was denied in the Assembly was rightly practiced before the Courts.<\/p>\n

\u201cThe best protection any woman can have \u2026 is courage.\u201d<\/em><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0 \u2013 Elizabeth Cady Stanton[3]<\/strong><\/a><\/em><\/p>\n

During the1800\u2019s, when Elizabeth Cady Stanton\u2019s 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 19th<\/sup>century 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]<\/a><\/p>\n

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 \u201cOrigin of the Family, Private Property and the State<\/em>\u201d Friedrich Engels[5]<\/a> 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.\u201d[6]<\/a> 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.<\/p>\n

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]<\/a>\u00a0 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]<\/a> 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 \u201cpersons\u201d was used as being gender neutral. However, there were many rights such as the \u2018right to property\u2019 and the \u2018right to vote\u2019, 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.<\/p>\n

Judicial Activism in India and USA<\/h2>\n

\u201cSo, can a woman get impartial justice from a man? Or conversely, can a man get impartial justice from a woman? The answer is \u2026 \u2018Yes\u2019 \u2026 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 \u2014 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.\u201d<\/em><\/p>\n