Introduction
The debates around the arena of gender justice, its significance and necessity in various spheres of the community, public and private lives have been much discussed and brought to the mainstream in the past few years. Gender justice essentially entails the presence of equality between different genders and the struggle for freedom from the systemic oppression and discrimination of women, which finds its roots in the archaic notions of patriarchal mindsets and various stereotypes prevalent in society. These inequalities can be seen as projections in terms of gender-based violence, lack of opportunity for education, health, and professional opportunities, and even as a struggle for their survival and existence flared by the acts of female infanticide, domestic violence, sexual harassment, and whatnot. This not only transgresses into the preservation of the dignity of the women but also infringes the basic human rights of women, ranging from the right to equality in the private, professional, and political spheres of social life to the protection of life and dignity. The year 2021 in the arena of the judiciary in India has been significant for the fostering of gender justice and for the reduction and eradication, to some extent, of the manifold barriers to its realization. The apex court partook several significant debates in this light and gave out such judgments that would act as a guide, protector, and benchmark for the cause. These judgments range from the recognition of women’s work in the domestic sphere, outlining the generalized, systemic, and subtle notions of the same to the increased protection and realisation of the rights of women in cases such as that of sexual assault.
Apex Court’s opinions and guidelines for measures ensuring gender equality
The apex court in the case of Nitisha v. Union of India[1] recognized and comprehensively defined the presence of indirect discrimination in granting permanent commissions to women officers. Indirect discrimination ensues from such practices which seem to be neutral on the face of it but affect a certain group in a negative fashion. This essentially was practised through the mode by which women were granted the commission. Women officers from the age groups of the 40s and 50s were expected to undergo medical assessments that were inherently designed and developed for male officers in their 20s or 30s. This realization has shredded light on the system that is entrenched with instances of systemic discrimination against women and furthering the agenda of specious equality through its framework and operation.
To ensure a conducive, fair, and equal environment for women in the ambit of the judiciary, the apex court made it mandatory for the judges to avoid using such words and language that would further the negative stereotypes and feed the extant impartiality and discrimination against women that exists under the gamut of the society.[2] These mandatory stereotypes that need to be avoided range from the determination of their competency, based on the physical, psychological, and moral compass of the women to requisite and obligatory ways in which their behaviour should ideally be moulded. The onus of correcting a society replete with gender stereotypes, biases, and misogyny, the judges play a significant role, and they need to be sensitized from the basics and at the foundational level. The apex court thus mandated the addition of gender sensitization as an integral part of studies in law schools and in training the judges.[3]
Decision on ascertaining notional income of homemakers
Attachment of requisite value to the nature of work women undertake in society and ensuring impartiality for the same is a precondition that necessarily accompanies the development of a just society. Financial recognition of domestic work undertaken for the larger part by women has been an issue entrenched with reservations and contentions. The Supreme Court with its significant judgment in the case of Kirti & Another v. Oriental Insurance Company[4] set a benchmark for issues intrinsically dealing with the ascertainment of monetary value in the form of national income for domestic work done by women. The question, in this case, arose out of the dilemma of ascertainment of compensation for the victim who did not earn, essentially a homemaker. The court streamlined the analysis of the case according to certain tests adopted for the assessment of the same which essentially included the opportunity cost test among others. The final decision of the court enshrines the idea of the addition of value to the economy in purely financial terms through domestic value and thus nurturing social justice by negating the conception of homemakers not doing “work” in real terms.
Significant decisions in matters of sexual offences
Sexual offences and harassment result in grave physical and emotional trauma for the victim but limiting its consequences to that would be looking into the degree of the violation that occurred through a narrow lens. The victim also gets subjected to societal discrimination in terms of outright impartiality in the accessibility to necessities such as housing, education, and basic healthcare facilities among others. This was recognized and affirmed by the Supreme Court in the significant case of X v. the State of Rajasthan[5] wherein the court stated that rape victims are prone to get subjected to discriminations originating from the society.
Instances of courts ordering victims of rape or sexual molestation or harassment to form such relations with the offender which would reflect a familial relationship are not uncommon. Similar to those lines, the Madhya Pradesh High Court released an offender on bail despite him violating the modesty of the victim by forcing himself into the house belonging to her and thus, arrested under Section 354 of the IPC on the rationale that the victim would tie “rakhi” to him and the offender would have to take an oath according to the customs to protect the victim and would absolve him of his offence and guilt.[6] This decision was overruled by the Supreme Court on grounds of the offence being of such grave nature which could not have been remedied simply by means of an apology. Furthermore, such an action would inevitably lead to a reduction in the gravity of the offence undertaken. It would further highlight the gross patriarchal mindset existing towards matters of similar nature.
Increased opportunities in the professional arena
The year 2021 bore witness to some invaluable decisions and changes in the arena of women holding significant positions and having such opportunities in the professional settings which were of burning need and thus making a change in the archaic trajectory of a male-dominated workplace. These changes can essentially be seen through the rising share of women holding positions in the Supreme Court when three women took an oath to hold the position of judges of the Hon’ble Supreme Court. Furthermore, the apex court, in the case of Kush Kalra v. Union of India[7], allowed women to be recruited to the Indian Territorial Army which furthered the real change in perception towards the achieving of gender equality on a significant front.
CONCLUSION
Judiciary, as has been known, is significant in the development of a society which it ensures through the protection of rights and maintainability of law to provide relief against what ensues after the violation of an individual’s basic rights. It has the responsibility to bring about a change and affirm the idea of what is just in society. Thus, the judgments and orders passed by the apex court in furtherance of gender equality have significant consequences in freeing women from the shackles of archaic perceptions originating from patriarchal mindsets and various gender biases.
Author(s) Name: Snigdha (Gujarat National Law University, Gandhinagar)
References:
[1] Nitisha v. Union of India, 2021 (2) SCT 209 (SC).
[2] Aparna Bhat and others v State of Madhya Pradesh and others, LL 2021 SC 168.
[3] Id at 168.
[4] Kirti & Another v. Oriental Insurance Company, AIR 2021 SC 353.
[5] X vs. State of Jharkhand, LL 2021 SC 29.
[6] Aparna Bhat and others v State of Madhya Pradesh and others, LL 2021 SC 168.
[7] Kush Kalra v. Union of India, (2021) 2 SCC 481.
