#CelebratingWomen: Recent Judgments by Indian Courts

“The true republic: Men, their rights, and nothing more: Women, their rights, and nothing less”

-Susan B Anthony

The deep rooted patriarchal and misogynistic ideology in society has always considered women as a weaker group but today women across the globe have broken all pre-existing stereotype and are world leaders. Women fought for their basic rights of equality, vote, and work and even for their own bodily autonomy. On this Women’s day we bring to you few recent and old handpicked judgments by Indian Courts which have been instrumental in strengthening the women’s right and have been celebrated widely.

On August 11, 2020, Supreme Court’s three Judge bench consisting of Justice Arun Mishra, Justice S Abdul Nazeer and Justice MR Shah held that daughters would have equal coparcenary right in Hindu undivided family even if born before amendment made to Hindu Succession Act. The bench disagreed with the observation made in Prakash v. Phulwati and held that it is not necessary that the father coparcener should be living at the time of amendment of 2005 to claim the benefit of the right.

A bench comprising of Justice D Y Chandrachud and Justice Ashok Rastogi  on February 17 , 2020 held that the ‘Women short services commission officers in the Indian Army are entitled for Permanent Commission at par with their male counterpart’ regardless of their year of service. The bench also noted that the government’s argument opposing the Permanent Commission was premised on ‘gender stereotype’. It also held that an absolute blanket ban seeking criteria or command appointments would not comport with the guarantee of equality under Article 14.

In this case the Supreme Court struck down 158 year old section 497 of Indian Penal Code which criminalized Adultery and declared it unconstitutional as it treats women as property of husband. The bench comprising of Chief Justice Dipak Misra, J. DY Chandrachud, J. RF Nariman, J. AM Khanwilkar and J. Indu Malhotra held section 497 ‘manifestly arbitrary’. Section 497 punished man for having sexual intercourse with ‘wife’ of other man but it exempted those sexual acts which were performed with consent of the husband of other woman. The section reduced women as a property and did not acknowledge her liberty to chose or consent thus violating dignity of women. However section 497 is still a valid ground for obtaining divorce.

In a defining judgment which strengthened liberty and choice of Muslim women, Supreme Court by majority of 3:2 held the practice of ‘Instant Triple Talaq’ legally invalid.  A bench consisting of Chief Justice J S Kehar, Justice S Abdul Nazeer, Justice U U Lalit, Justice Kurian Joseph and Justice R F Nariman was hearing the petition where CJ J S Kehar and J Abdul Nazeer dissented.

Justice Nariman and Justice U U Lalit held that all Talaq under Muslim Law are covered by the Muslim Personal Law application (Shariat) Act of 1937 and subject to application of Article 13 and out rightly violative of Article 14 & 15 of Indian Constitution.

In year 2009 a three Judge Bench consisting of Chief justice K G Balakrishnan, Justice P Sathashivam, Justice B S Chauhan while hearing a petition from an orphaned woman who was brutally raped stayed the Punjab & Haryana High Court order and held that the right to reproductive choice flows from the right to liberty under Article 21 of the Constitution. It also observed that taking away a woman’s choice regarding her own body would amount to infringement of her ‘right to privacy’. It further distinguished between mental illness and mental retardation and considered that the woman’s mental retardation did not take away her right to make a decision regarding her reproductive choices. Therefore, it held that a termination of her pregnancy without her consent could not be ordered.

The Judgment was much celebrated in terms of giving women her own bodily autonomy and with declaration of Right to Privacy as a fundamental right, new avenue to this would be open soon.

The bench consisting of Justice Markandey Katju and Justice T S Thakur in a progressive judgment in 2010 held that ‘Live in relationships will also be covered under Domestic Violence Act of 2005’ and a live in relationship will amount to a relationship in the nature of marriage and to get such benefits as provided under Domestic Violence Act of 2005 certain conditions must be satisfied and supported by evidence.

“Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business.”, held Supreme Court Bench comprising of Justice DY Chandrachud and Justice Ajay Rastogi in one recent judgment delivered. The court upheld a Madhya Pradesh High Court judgment quashing the transfer of a woman bank employee (respondent), issued after she had complained against an officer for sexual harassment, apart from submitting reports about irregularities and corruption at the bank branch.

In one of the most awaited Judgment in year 2018 the Supreme Court by Majority of 4:1 allowed the entry of woman of all age groups to the Lord Ayyapa’s temple and while doing so it also held that ‘devotion cannot be subjected to gender discrimination’. Justice Indu Malhotra, lone women in the bench dissented, Chief Justice Dipak Misra, Justice R F Nariman, Justice D Y Chandrachud and Justice A M Khanwilkar constituted majority which ruled that Sabarimala’s exclusion of women violated the fundamental rights of women between the ages of 10-50 years and Rule 3(b) of the Public Worship Rules was unconstitutional. Justice Indu Malhotra delivering a dissenting opinion observed that in a secular polity, it was not for the Courts to interfere in matters of religion and the same must be left to those practicing the religion.

The judgment is set to be reviewed by a larger bench. Read more here.

Popularly known as ‘Hadiya Case’, in this Judgment Supreme Court set aside Kerala High Court’s order which called Hadiya’s marriage to Shafin Jahan sham and annulled it. The court made a strong observation that the High Court had transgressed its jurisdiction. The three Judge bench comprising of Chief Justice Dipak Misra, Justice A M Khanwilkar and Justice DY Chandrachud also observed that “The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage…”

No discussion on Judgments by the Indian Judiciary is complete without mentioning of Vishaka case. The Supreme Court concluded that sexual harassment in the workplace is a violation of women’s human rights. In its judgment, the Court provided a set of guidelines for employers as well as other responsible persons or institutions – to immediately ensure the prevention of sexual harassment. In particular, the Court referred to India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has prohibits discrimination in the workplace and outlines specific state obligations to end it. It took the government seventeen years to pass the law against harassment when it passed in 2013, Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) act, 2013.

Last month marked a significant incident in India’s #METOO Movement when an Additional Chief Metropolitan Magistrate Ravindra Pandey found Senior Journalist Priya Ramani not guilty of defaming ex cabinet minister and Journalist M J Akbar. The court noted “it cannot be ignored that most of the time, the offence of sexual harassment and sexual abuse committed in the closed doors or privately.  Sometimes the victims herself does not understand what is happening to them or what is happening to them is wrong. Despite how well respected some persons are in the society, they in their personal lives, could show extreme cruelty to the females.”

It also observed that “Article 21 and the right to equality are guaranteed under the Constitution. She has full right to put up her case in any platform of her choice.”

(By Anubhav Kumar. He is an LL.M. Candidate in Constitutional Law at Maharashtra National law University, Aurangabad. He tweets at @iam_anubhav)

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