A Jurisprudential Analysis: Exploring Indian Judiciary's Approach to Legal Feminism from Hands-Off to Protective and then to Progressive

Paper Details 

Paper Code: RP-VBCL-19-2024

Category: Research Paper

Date of Publication: April 20, 2024

Citation:  Mr. Sarthak Aryan & Ms. Dristi Kakoty, “A Jurisprudential Analysis: Exploring Indian Judiciary's Approach to Legal Feminism from Hands-Off to Protective and then to Progressive", 1, AIJVBCL, 295, 295-308 (2024), <https://www.vbcllawreview.com/post/a-jurisprudential-analysis-exploring-indian-judiciary-s-approach-to-legal-feminism-from-hands-off-t>

Author Details: Mr. Sarthak Aryan, LL.M., NIMS School of Law, NIMS University, Jaipur &

Ms. Dristi Kakoty, BA. LL.B. (Hons.), Student, National Law University & Judicial Academy, Assam.

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ABSTRACT

Judiciary adopts different approaches to interpret the law for cases at hand based on legislations, evolving societal norms, changing conceptions of equality, and its societal impacts. Therefore, to be cognizant of the catalysts of transition of jurisprudence in the legal feminism in India, one needs to study the approach  adopted by the Indian Judiciary in its judgments and the fundamental shift in the view of judiciary from non-intervention to protectionist and then to progressiveness. This research work gives an in-depth understanding to the paradigm shift which is being observed in the approach of judiciary from hands-off to protectionist approach in cases of personal laws and gender blind spots. But recently it has been observed that judges have worn a much progressive robe in cases involving women rights and gender justice, and the effects of this progressive approach of judiciary has been observed in matters relating to the rights of a rape victim and rights relating to equality in work environment etc.

Keywords: Feminism, Indian Judiciary, Judicial Approach, Hands-off Approach, Protectionist Approach, Progressive Approach.

INTRODUCTION

In societies governed by rule of law, the judicial approach holds paramount importance. It represents the principles, procedures, and dispositions that judges employ in order to interpret the law, adjudicate arguments, and administer justice. It is essential for individuals, legislators, scholars, and legal professionals to have an understanding of the judicial approach. Fundamentally, judicial approach is a collection of ideas and methods that judges apply while resolving legal disputes. It combines legal reasoning with the application of legal concepts, the interpretation of laws and case law, and the assessment of social norms and values. Different legal systems adopt different approaches to justice, which are shaped by cultural norms, constitutional frameworks, and legal traditions. So, to gain knowledge in accordance of the judiciary’s views with regard to Legal Feminism in India, then an analysis of judicial approach is necessary and factors which contributed to the changes in such approaches from time-to-time.

The Indian Constitution guarantees the legislature, under Article Fifteen Clause Three, with the power to make distinctive laws in regards for the society’s deprived section’s wellbeing, thus providing women with uniform rights and scope in comparison to the other gender. Females in the ancient times as well as in the modern state of affairs have often been subjected to discrimination due to the intricacies of personal laws, cultural norms and customs. Women have consistently knocked on the doors of the judiciary in such instances of violation of their constitutionally guaranteed rights. There are several gender blind spots,[3] in our societies which are flourishing in the veils of personal laws, legal lacunas and legislations. These gender blind spots have been severely criticized by feminist scholars.

At present few questions are enhancing the grounds for debates amongst the Legal Academia as well as Judicial Activists. Such questions would arise as to how the view of judiciary has changed towards gender justice while interpreting personal laws and women rights activism or legal feminism as a whole, secondly, as to how the approach of judiciary has changed regarding the pre-supposed notion that judiciary which was earlier blamed to be interpreting law from the patriarchal mindset is now progressive towards women’s rights cases and lastly, whether the biasness in the current scenario, is justiciable or not.

HANDS OFF APPROACH AND PERSONAL LAWS

In a diverse country like India, people belonging to various religious groups have been bestowed with certain rights and freedom to implement & interpret system of laws and codes in matters of marriage, adoption, succession etc., according to their own faith and beliefs by the constitution of India. In India, every religious group has its own Personal Provisions and Legislations, for an instance the people of Hindu Religion have statutes like the “Hindu Marriage Act (1955)”, “Hindu Succession Act (1956)”, “Hindu Minority and Guardianship Act (1956)” and “Hindu Adoptions and Maintenance Act (1956)”. The “Muslim Personal Law (Shariat) Application Act (1937)” is one Personal Law statute for the Muslims and same is for other religious groups like Parsis, Jews, and Sikhs etc. Usually, Personal Laws have their derivation from the religion and religious texts, as religion was the chaperone to all matters. In early societies, it seemed that law and religion were braided and often identical. According to Sir M.H. Maine, "there is no recorded legal system throughout China to Peru that is not perceived to be entwined within spiritual practices and customs when it first comes into notice."[4] Like, for example the chief sources of Hindu Personal Law are texts like Vedas, Puranas, Ramayana and Mahabharata. Holy Scriptures like Quran and customs like Sunnah are the main sources of Muslim Personal Laws. These laws were considered fixed and unchallengeable.

These laws create certain “gender blind spots” that has put society, government, feminist scholars and judiciary into dilemma. Every popular debate on the issue of personal law system focuses on secularism and national identity. Those institutions that deviates this topic never take into account gender perspective. It is the very reason why feminist scholars criticize the state of being patriarchal, unequal,[5] and which lacks the will to confront the religious leadership on this matter.[6] Most of the research that exists on this issue, deals with historical contexts of these laws and issues regarding implementation of UCC due to which subject of gender equality gets lost in the discussion.

In the landmark hearing of the matter of Mohd. Ahmad Khan v. Shah Bano Begum[7], main problem which was highlighted was how the Muslim community demanded for autonomy with regards to their personal laws which again conflicted with demands of the women’s rights groups. The concern which was raised by some women’s rights group was that the autonomy for practising personal laws for the Muslim community would deprive women from their basic human rights. Both the feminist scholars and judiciary were in deep waters as the basic rights of the women of the country were in need for protection while addressing the demand of autonomy over practicing of personal laws.

The courts attempted to pass the responsibility to the legislature as an outcome of these various issues and misunderstandings, and the Apex Court has declared in several instances that personal provisions stands to be incompatible with Part Three of the Indian constitution.  For an instance, in the judgment of Madhu Kishwar & Ors. v. State of Bihar[8], certain tribal customs, were interpreted to be discriminatory rather than being stuck down as unconstitutional. Another illustration is the Reynold Rajamani & Anr. v. Union of India [9], which argued that the grounds for divorce to be increased and include mutual consent in Indian Divorce Act, but the court did not engage with the matter as being discriminatory for women. In the landmark judgment of Ahmedabad Women’s Action Group v. Union of India[10], wherein plenty of petitions were brought in challenging disparities in private legislation pertaining to women; the court concluded that such problems are parliamentary in nature and don't call for judiciary's involvement. In a similar instance, it was seen in the judgment of Githa Hariharan v. Reserve Bank of India [11], where “Section 6(a) of the Hindu Minority and Guardianship Act, 1956”, a provision that was manifestly discriminatory, was put forward and objected to in the Supreme Court. In favor of "reading down" the discriminatory aspects of the statute, the Supreme Court declined to overturn it.[12] Similarly, in the judgment of Danial Latifi v. Union of India[13] the court turned away from considering, in their interpretation provisions of the “Muslim Women (Protection of Rights on Divorce) Act, 1986” as unconstitutional.

From the above cases it can be implied that whenever the questions were raised about the personal laws and its discriminatory nature, Supreme Court either passes the ball into the hands of the Parliament or recuse itself from the matter.

PROTECTIONIST APPROACH & RISE OF LEGAL FEMINISM POST SHAYARA BANO JUDGEMENT  

After decades of suppression, when the issue of Triple Talaq was again raised in the landmark judgment of Shayara Bano[14], many women’s right groups backed those Muslim Women who were being treated unjustly by the authorities in power who were again, duty bound to treat everyone equally before the law. The Court pronounced the practice regarding “triple talaq” to be unconstitutional and took a firm stance towards the triple talaq ruling. With regard to the Indian judiciary's interpretation of individual laws, this signalled the start of an entirely new era for women's liberties.

Previously Supreme Court has fallen short in the matters related to personal law and religion. The issues involving women rights and striking down of hardened religious practices has often resulted in violence in the hands of religious zealots. The resulting violence unfortunately targets women themselves. This is the very reason why the court’s standing in the landmark judgement of “Shayara Bano” becomes more crucial.[15]

The Supreme Court which has been in past critiqued for its patriarchal interpretation of law had the perfect opportunity to move forward of all the religion and politics and to give out a judgement that paves the way forward for all the women facing discrimination due to biased religious laws. The court through its judgment provided true justice for the victims. This judgement is widely celebrated as the beginning of the overdue overhaul of discriminatory laws in India.[16] It has set the balls rolling in the correct directions and discriminatory aspects of every legal area such as personal laws[17] or in the Indian rape law[18] as being analysed by the academia.

The Shayara Bano case and subsequent support by the legislator gave strength to other women who were being suppressed under the discriminatory personal laws. The decision had a far reaching consequence and it marked the rise of legal feminism in India. Also known as ‘feminist lawyering’ it was used in America and Canada in the late 1970s and it became integral part of American law. Legal feminism isn’t only about judicial activism but it is a movement which is aimed at bringing feminist theory to teaching, practice and literature. This helps feminism to take roots into law schools, courts and legislatures. The women rights activists and feminists used feminist jurisprudence to solve traditional legal conflicts.[19]

The judiciary has adopted a forward approach in the issues involving women rights and equality, for an instance it can be seen in the landmark judgment of Indian Young Lawyers Assn. v. State of Kerala[20], whereby the Sabarimala Temple's long-standing custom that forbids women of menstrual age from entering the premises was declared unlawful by the Supreme Court. A public interest petition was submitted by “Yasmeen Zuber Ahmad Peerzade” to defend Muslim women's liberty to perform Namaz within a the mosque, which was one of the cases brought before the highest court in the land in response to this ruling about prejudice against women in institutions of worship.[21]

Now Indian women have started questioning the laws that they were being subjected to and subdued by. Several PILs were filed in the Supreme Court against polygamy and Nikah Halala[22]. The Shayara Bano judgment gave the best opportunity for the many Indian women’s groups to come together to organize a feminist movement as this judgment has attracted the attention of many organizations towards litigation and judicial approach towards women rights issues.

JUDICIAL PROGRESSIVENESS TOWARDS WOMEN’S RIGHTS

Judiciary has held different views in cases involving laws that challenge the patriarchal dominance and suppression of women. India's legal system has ushered in an entirely new phase of Jurisprudence. The judicial system has taken an innovative approach by doing away with statutes that encourage prejudice against women, for an instance the court in the landmark judgment of Joseph Shine v. Union of India[23], the constitutional panel of the highest court in the land overturned the hundred and fifty eight year old colonial-era legislation of adultery, which recognized women as commodities and husbands as their masters. Dipak Mishra, the former Chief Justice of India, stated unequivocally that women should be viewed and treated on an equal footing with men as well as that a husband ought not to be the master of his wife's affairs.[24] In the year 2006 came the judgment Laxmi v. Union of India[25], The casualty of the acid assault Laxmi filed a petition with the Supreme Court of India requesting that the court become involved in the acid sales. It then outlawed the sale of acid to anybody under the age limit of eighteen after taking notice of the growing frequency of acid assaults. Additionally, it put rigorous limitations on the selling of acid at retail establishments.[26]

In many such recent instances, the Apex Court of India has moreover had a progressive stance on issues pertaining to women's rights, which can be seen when it took a leap towards making equality in the army by rejecting government’s plea and ruling that women are now eligible for permanent commission in the army.[27] In the instant mater of Air India Cabin Crew Association v. Union of India[28], Another Air India hostess contested a rule that encourages discrimination on the basis of gender. The policy states that only men may be designated as In-Flight Supervisors. The only males tag was required to be removed by the court that upheld fairness in the method of selection because it was targeted against a certain gender.

Recently the Supreme Court expounded over the issue of Gender Justice in the judgment of Charu Khurana and Ors. v. Union of India[29], The plaintiff's request for a Makeup Artist Certification was turned down by the Mumbai Cine Costume Makeup Artists and Hair Dressers Association due to her sex, which happened to be the subject of the lawsuit. The verdict stated that although institutionalized bias on the basis of sex has been officially abolished, prejudice centered on gender continues to persist in our psyche and has not altered in mentality.[30]

The Highest Court of the land in the landmark judgment X v. Principal Secretary Health and Family Welfare Department and Anr.,[31] observed that a woman should have the absolute autonomy to their reproductive decisions without any external interference. The exact issue raised was to examine the constitutionality of “Rule 3B of MTP Rules, 2003”, in relation to Article Fourteen of the Constitution of India, which provides to everyone equality over law. The aforementioned rule basically deprived unmarried women from accessing safe and legal abortion unlike married women, which directly violated the right to equality of unmarried women. The MTP Act of 1971 majorly emphasized on “married women and her husband” when it came to abortions but after the 2021 amendment it gave an equal opportunity to all women thereby emphasizing on “women and her partner”. The court thereby granted unmarried women their liberty to exercise one’s own reproductive health, privacy and dignity as specified in Article Twenty-One of the Constitution, equally to rights of married women. The judgment not only provided equality to unmarried women but also did justice to rape victims.

Similarly various other judgments in recent times have also done a lot of justice in giving women their right to reproductive autonomy. Recently in the judgment of High Court on its own motion v. State of Maharashtra[32] adopted the same position, arguing in defense that denying a woman the option to end a pregnancy that might harm her physical or mental health is an infringement of her bodily integrity. 

For many years that went by, women has always been seen as a primary caretaker to most situations in a societal backdrop thereby restricting them of some professions, pre assumed to be only for men. Being a military would surely top the list of such professions; protecting the dignity and integrity of the family or society has always been expected from women but when it comes to protecting their own country, women are perceived as biologically incapable to do so. But in recent times the judiciary has taken significant steps to mend the age old notions and gender based roles in the society.

The Apex Court in the landmark matter of, The Secretary, Ministry of Defence v. Babita Puniya & Ors.[33], observed that the submissions made by the respondent, arguing why women should be barred, were based on assumptions of gender roles and were discriminatory against women. The court further observed that, “These assertions which we have extracted bodily from the written submissions which have been tendered before this Court only go to emphasise the need for change in mindsets to bring about true equality in the Army. If society holds strong beliefs about gender roles – that men are socially dominant, physically powerful and the breadwinners of the family and that women are weak and physically submissive, and primarily caretakers confined to a domestic atmosphere – it is unlikely that there would be a change in mindsets. Confronted on the one hand with a solemn policy decision taken by the Union Government allowing for the grant of PC to women SSC officers in ten streams, we have yet on the other hand a whole baseless line of submissions solemnly made to this Court to detract from the vital role that has been played by women SSC officers in the line of duty.”

In the recent judgment of LT. Col Nitisha v. Union of India[34], the court observed that, “Based on the above analysis, we are of the view that the evaluation criteria set by the Army constituted systemic discrimination against the petitioners. The pattern of evaluation deployed by the Army, to implement the decision in Babita Puniya (supra) disproportionately affects women. This disproportionate impact is attributable to the structural discrimination against women, by dint of which the facially neutral criteria of selective ACR evaluation and fulfilling the medical criteria to be in SHAPE-1 at a belated stage, to secure PC disproportionately impacts them vis-à-vis their male counterparts. The pattern of evaluation, by excluding subsequent achievements of the petitioners and failing to account for the inherent patterns of discrimination that were produced as a consequence of casual grading and skewed incentive structures, has resulted in indirect and systemic discrimination. This discrimination has caused an economic and psychological harm and an affront to their dignity.”

PROGRESSIVE CHANGE IN JUDICIAL APPROACH IN MATTERS RELATING TO INVESTIGATION OF RAPE

Discrimination and inequality aren’t the only things that women of this country have suffered from time to time, but being a victim of rape & sexual assault has also topped the list. But the court in recent times has delivered a number of judgments which can be viewed as progressive regarding how the court has responded to the violation of rights of a rape victim.

The progress can be portrayed by mentions of the problematic and unfair practice of the “Two Finger Test” which has been practiced until recent times where the changing approaches of the court has brought in positive changes in putting an end to such practices. The “Two Finger Test” uses a medical practitioner to insert two fingers inside the vagina of the alleged rape victim to test whether the victim’s hymen is broken or not or was the victim a virgin before the rape took place. This practice was used to determine the grounds of the allegations to be true or not, by considering that a woman having a record of regular sexual intercourse might somehow lie about herself being raped. The whole basis of this test taking place was that only a virgin woman can be raped and no other, which directly leads to the notion that this practice was itself very biased and against the interest of married women, women involved in prostitution and any adult women having an active sexual life. In the case of  Lillu @ Rajesh & Anr. v. State of Haryana[35] the justice system observed that “Two Finger Test”, not only infringe their demand of privacy, dignity and nobility but also re-traumatizes the rape victim. The court also stated that the medical facilities should not be violent and degrading to human life while dealing with sensitive cases like rape and it comes to the state as an obligation to make sure of it. Thus the court held that even if the test proves the sanctity or the virginity of the victim yet it doesn’t lead to the presumption of consent.

In the recent hearing of the matter of State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai[36], the bench consisting of Chief Justice D. Y. Chandrachud and Justice Hima Kohli observed that a woman’s sexual history is immaterial while investigating an offense of rape. The practice of “Two Finger Test” was also termed to be “sexist” and “patriarchal”. The court held that the practice itself provides for a notion that a woman who is “habituated to sex” cannot be raped. The court also stated that while implying with “Section 53-A of the Indian Evidence Act”, the proof of a victim’s past sexual intercourse isn’t relevant to matters concerning of consent and in prosecution determining sexual offences. The court also issued directions for both the government in the centre as well as in the state to ensure that the “Two Finger Test or “per vaginum examination” isn’t prescribed as a procedure to be practiced while examining any victims of rape and sexual abuse.

In the very recent landmark matter of Sr. Sephy v. CBI & Ors[37]., the High Court of the nation capital that is Delhi on February 2023 observed that it breaches Article Twenty-one of the Indian Constitution because a virginity test had been carried out on an accused lady who is the focus of an inquiry.

CONCLUSION

Judicial approach is the embodiment of principles, procedures, and fundamental concepts that underpin judicial decision-making in legal systems across the globe. Maintaining the rule of law, defending rights and liberties, advancing justice and equity, and promoting democratic governance all depend on its study. By analyzing different approaches adopted by judiciary in the cases of women rights and discrimination against women in different periods the researchers and academicians were able to get in-depth understanding as to the change in approach of judiciary with changing societal norms and culture.

We need to keep in mind the abuses, discrimination and pressure that women like had to face both from family and society as a whole when they blew the whistle against the suppressive personal laws. Things are more favorable for women now to raise their demand of gender equality as the judiciary has taken a progressive stand with regard to women rights cases, thus widening the scope for more feminist lawyering in India.

Thereby, it can be stated that the battle for gender equality and justice still has a long way to go, and these are just minor victory along that path. There are several gender blind spots present in our legal system and personal laws which need to be amended and reformed.

Furthermore, while we talk about women fighting for their rights we also have to keep in mind the role of the people who are in charge of framing and interpreting laws, we have to track down a record on how the system is developing provisions and legislations and how the laws are being amended alongside the changing dynamics of the society. This can be done by analyzing and identifying areas of the law that need clarification, modernization, or change by examining judicial decisions and approaches. It is through this process that new legal doctrines can be developed, legal certainty can be enhanced, and justice can be assured in changing social circumstances.

[3] Nivedita Menon, Seeing Like A Feminist, 151(1st ed. 2012).

[4] H.S. Maine, ANCIENT LAW, 1st ed. 1861, p.16.

[5] Chibber, S. A. (2008). Charting a New Path Toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code. Indiana Law Journal, 83(2). https://www.repository.law.indiana.edu/ilj/vol83/iss2/10

[6] Herklotz, T. (2017). Law, religion and gender equality: literature on the Indian personal law system from a women’s rights perspective. Indian Law Review, 1(3), 250–268. https://doi.org/10.1080/24730580.2018.1453750

[7] Mohd. Ahmad Khan v. Shah Bano Begum, AIR (1985) SCR (3) 844.

[8] Madhu Kishwar & Ors v State of Bihar & Ors, AIR 1996 SC 1864.

[9] Reynold Rajamani  & Anr v. Union of India, 1982 AIR 1261: 1983 SCR (1) 32.

[10] Ahmedabad Women’s Action Group v. Union of India, 1997 3 SCC 573.

[11] Githa Hariharan v. Reserve Bank of India, 1999 2 SCC 228.

[12] Indulia, B. (2022, September 8). Rights of Mothers as Natural Guardians in the Changing Indian Society Githa Hariharan v. RBI and ABC v. State: Case comments. SCC Times. Retrieved April 17, 2024, from https://www.scconline.com/blog/post/2022/09/08/rights-of-mothers-as-natural-guardians-in-the-changing-indian-society-githa-hariharan-v-rbi-and-abc-v-state-case-comments/

[13] Danial Latifi v. Union of India, 2001 7 SCC 740.

[14] Supra 3

[15] Jones, J. (2020). Towards a Muslim Family Law Act? Debating Muslim women’s rights and the codification of personal laws in India. Contemporary South Asia, 28(1), 1–14. https://doi.org/10.1080/09584935.2019.1684444

[16] Rashid, O. (2017, August 22). Historic day for Muslim women: Shayara Bano on triple talaq verdict. The Hindu. Retrieved April 17, 2024, from https://www.thehindu.com/news/national/a-historic-day-for-muslim-women-shayara-bano-on-triple-talaq-verdict/article19540784.ece

[17] Herklotz, T. (2017). Shayara Bano versus Union of India and Others. The Indian Supreme Court’s Ban of Triple Talaq and the Debate around Muslim Personal Law and Gender Justice. Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 50(3), 300–311. http://www.jstor.org/stable/26429244

[18] Ibid.

[19] Ann C. Scales, Legal Feminism: Activism, Lawyering, and Legal Theory (2006).

[20] Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC OnLine SC 1690

[21] Muslim Women’s Right to Pray in Mosques - Supreme Court Observer. (2021, December 24). Supreme Court Observer. https://www.scobserver.in/cases/yasmeen-zuber-ahmad-peerzade-muslim-womens-right-to-pray-in-mosques-background/

[22] Sameena Begum v. Union Of India, W.P. (C) No. 222 of 2018

[23] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

[24] Ashima Obhan & Vrinda Patodia, Women Centric Changes in Indian Law, Mondaq (Apr 05, 2019, 02:47 PM), https://www.mondaq.com/india/human-rights/795312/women-centric-changes-in-indian-law.

[25] Laxmi v. Union of India, (2014) 4 SCC 427.

[26] Bhadra Sinha, SC curbs acid sale, orders more money for victims, Hindustan Times (Jul 19, 2013, 06:12 PM), https://www.hindustantimes.com/delhi/sc-curbs-acid-sale-orders-more-money-for-victims/story-KoNdEqkCj2Us0EvdqxbdqN.html.

[27] Swati Gupta, Landmark ruling grants women equal rights in Indian army, CNN (Feb 17, 2020, 02:16 PM), https://edition.cnn.com/2020/02/17/india/india-women-equal-rights-army-intl/index.html.

[28] Air India Cabin Crew Association v. Union of India, 2011 (12) SCALE 637.

[29] Charu Khurana and Others v. Union of India, 2015 (1) SCC 192.

[30] SC allows women to work as make-up artists in Bollywood, The Hindu (Apr 09, 2016, 07:10 PM), https://www.thehindu.com/news/national/sc-allows-women-to-work-as-make-up-artists-in-mumbai-film-industry/article6587203.ece.

[31] X v. Health & Family Welfare Department, 2022 SCC OnLine SC 905

[32] High Court on its own motion v. State of Maharashtra, 2023 SCC OnLine Bom 2856

[33] The Secretary, Ministry of Defence v. Babita Puniya & Ors. (2020) 7 SCC 469, Para. 55

[34] LT. Col Nitisha v. Union of India, 2021 SCC Online SC 261, Para. 119

[35] Lillu v. State of Haryana, (2013) 14 SCC 643

[36] State of Jharkhand v. Shailendra Kumar Rai, (2022) 14 SCC 299

[37] Sephy v. CBI, (2023) 1 HCC (Del) 646