Third Shri Akella Satyanarayana Memorial Endowment Lecture on Gender Justice Indian Perspective
by Justice S. Rajendra Babu*
Cite as : (2002) 5 SCC (Jour) 1
Shri Akella Satyanarayana was a third-generation advocate in Visakhapatnam Bar. Even as a student he made a mark with eloquence and rhetoric. He had leadership qualities to make him the President of the Students' Union. As an advocate, though busy with his profession, following the footsteps of his mentor Shri Tenneti Viswanatham, he reached great heights not only in legal but in social circles. A profession hereditarily acquired may have its advantages but its handicaps are too well known, such as comparison with his father, grandfather or his seniors. He overcame these hurdles and established himself as an illustrious advocate at Visakhapatnam Bar. Over three decades the success he attained was unparalleled before he passed away in 1999. It is heartening to note that his two daughters and his son-in-law Shri Badarinath are all in the legal profession. It is in the fitness of things that in memory of the late Shri Akella Satyanarayana, a trust is constituted with Shri D.V. Subba Rao, a very Senior Advocate and Chairman of the Bar Council of India, Shri K. Srinivasa Rao and Shri B.S. Rama Mohan as trustees and Shri Badarinath, Advocate and son-in-law of the late Shri Akella Satyanarayana, as the managing trustee. The main activities of the Trust is to conduct annual endowment lectures in memory of the late Shri Akella Satyanarayana. I have the privilege today to deliver the third lecture. The inaugural lecture was delivered by Shri Justice M. Jagannadha Rao, former Judge of the Supreme Court of India and presently the Chairman of the Law Commission, on the topic "Law Students, Lawyers and Judges in the New Millennium" which was attended by many illustrious members of the Bench, Bar and other prominent citizens of the city, including academicians and law students and which was widely covered by the media. The second lecture was delivered by Shri Justice Satya B. Sinha, presently the Chief Justice of the Delhi High Court and then the Chief Justice of the Andhra Pradesh High Court, on the topic "Creative Interpretation of the Constitution: Role of the Supreme Court of India" which was again well received. When such illustrious speakers have preceded me and while one speaker has wide-ranging topic concerning students, lawyers and Judges, the other has gone to the acme of the judiciary in the matter of interpretation, I feel that I should address you on a topic not so wide-ranging nor reaching such heights but on a matter of current topical interest which would be of great interest at least to a section of the Bar.
Shri D.V. Subba Rao and the President of your Bar Association prevailed upon me to speak on the subject pertaining to "Gender Justice Indian Perspective", which I also thought to be a subject of topical interest to all of you and, in particular, to the lady members of the Bar.
International Women's Day was observed a few weeks back to stress upon gender equality and women empowerment, but went off as a routine ritual leaving behind a taste of boredom. Each such occasion seems to have lost the power of India's feudal realities. Daily life for a woman who is not attached to a man can be a nightmare. We need to make "gender" as robust and down to earth as Kalpana Morparia, Executive Director, ICICI, Kalpana Chawla, first Indian Cosmonaut, Behreen Bai Sonbor, the coolie who became Deputy Mayor of Nagpur. They made their mark without fuss. They had no time for a glamorous hatred of men. The overwhelming number of top echelons of the administration, the media and the business consists of males. Women politicians have to be related to powerful men in order to contest or win an election or they have to be simply "mad" in order to survive. They must shriek like Sushma Swaraj or bite like Mamta Banerjee or be a sanyasin like Uma Bharti. The caste system is as much a system of ideas as it is a social arrangement. When the hierarchy remains central to the Hindu mind, elder-younger, rich-poor, male-female, the question asked is "Who is she?" implying what is her birth, status, family connections, indeed what are her rights to speak or exist rather than talent or merit.
The Constitution of India recognises equality of the sexes and in fact provides for certain provisions under the Chapter on Fundamental Rights more favourable to women but in actual practice they are observed more in breach than in compliance. When reforms were introduced in regard to the local self-governments, it was thought that if women are empowered compulsorily to perform certain functions and exercise powers in local self-governments, that would create an atmosphere where women can progress resulting in betterment of the society itself. For example, Article 243-D provides that not less than 1/3rd of the total number of seats be reserved for women belonging to Scheduled Castes or Scheduled Tribes. It is also provided that the office of the chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes and the Scheduled Tribes and women in such manner as the legislature of the State may by law provide. But even such empowerment did not result in effective implementation of these laws because when women were elected to the seats that were reserved in their favour, they were not allowed to occupy such offices or even discharge functions effectively. Many of them were humiliated in a degrading manner and some of them were ousted from the office by moving no-confidence resolutions.
In our society, the responsibility to run the home and take care of the children is that of women. Even where they are employed outside the home, not only have they to work in offices both before going to and after returning from the office but will have to carry out the household chores apart from attending to children and taking care of visitors. As long as there is no understanding and sharing of household work between men and women and the family is solely dependent on the women of the house, it is a kind of deprivation to the women, of leisure or time for pursuit of other interests in addition to reducing the burden of the family cares. In this area particularly where both the parents of the child are employed, the fact remains that the responsibility of the children is on both the parents and necessarily calls for sharing the burden. In fact in certain industries, paternity leave is granted to the husband apart from maternity leave granted to the wife. But the answer often given in resistance to this approach is that the child instinctively looks to the mother rather than to the father forgetting that it is so because more often than not it was the mother who was available to the child rather than the father. The laws must also provide for appropriate measures to make the life of women easy, particularly when they are employed, by making provisions such as paternity leave and a culture must develop in our society whereby the burden is shared by both parents equally.
In effecting reforms to Hindu law, daughters have been provided equal rights along with sons in the joint family property of Hindus. At one time, when a married daughter used to visit her parental home, she was received with affection and treated as an honoured guest in the family and when she returned to her husband's place, was showered with gifts or share from what was grown in the family as a matter of goodwill, if not, as a matter of right. After the amendment of the Hindu Succession Act giving equal right to daughters in the father's property and thereafter the provision for right to daughters in the joint family property has given rise to a kind of acrimony thereby having a hostile attitude towards the daughter and she is no longer treated as an affectionate daughter or sister coming home for a few days but as a rival claimant to property.
In our society the freedom of women to seek employment outside the family is a major issue. This freedom is denied in many cultures and this attitude in itself is a serious violation of women's liberty and gender equality. The absence of this freedom militates against the economic empowerment of women, with many other deleterious consequences. Besides, effect of employment in adding to the economic independence of women, outside work is also causally important for women in making better "deal" in intra-household distributions. Needless to say, women's work at home can be back-breaking, but it is rarely honoured or even recognised and certainly not remunerated, and the denial of the right to work outside the home is rather a monstrous violation of women's liberty. Ordinarily the prohibition may work more implicitly through the power of convention and conformity. Quite often there may not even be a clear sex ban on women seeking employment, and yet women reared in the traditional values may be quite afraid to break with the traditions and to shock others. The prevailing perceptions of normality and appropriateness are quite central to this question. Women workers have taken to play a very important role in transformation as for example SEWA (Self-Employment Women's Association) has been most effective in bringing out a change in the climate of thought not just mere employment for women in one part of India.
To allow women to take up employment or hold elective offices and inherit property is not yet socially accepted wholeheartedly. You have a duty, therefore, to educate our society to bring an awareness as to the need for such laws or the necessity for women to take up employment, which in fact results in empowerment of women. Unless there is social acceptability of a law the effectiveness thereof would be in serious doubt as, for example, in the last century the Child Marriage Restraint Act was passed and still in certain areas in this country, even today child marriages take place. So also the Constitution abolished untouchability and several enactments have been made to give effect to the same but still the same is practised in a virulent form all over the country which is a matter of shame. These two instances clearly point out that law alone cannot tackle social problems and a lot of awareness is required among the public before such laws are accepted or such laws are promoted. Therefore there is a great need for you to go to the villages and educate people at different levels of the need and efficacy of such laws so that there may be social acceptability and success of the same. As long as there is no empowerment to women, no society can progress. Indeed in any culture where there has been progress of women, there has been overall economic development, longevity has increased, population control and nutrition level has enhanced. Let me illustrate with reference to the State of Kerala. Kerala has one of the low real incomes per head but by a long margin, has the highest life expectancy at birth over 70 years (compared to 57 years for India as a whole). Its infant mortality rate is correspondingly much lower than the Indian average. Kerala has also a much higher level of general literacy (91 per cent as opposed to the Indian average of 52 per cent) and particularly female literacy (87 per cent compared with the national average of 39 per cent). Indeed, Kerala's achievements for many crucially important functionings are not only very much better than those of the rest of India but they have an edge in many fields especially with regard to women. The female-male ratio in Kerala is 1.04, which is very similar to the ratios around 1.05 in Europe and North America. While total fertility rate for India as a whole is still higher than 3.0, that rate in Kerala has fallen well below 2.0, roughly speaking two children per couple to 1.7. Kerala's high level of female education has been particularly influential in bringing about these social changes reduction in birth rate, mortality rate etc.
In spite of 50 years of post-independent democratisation, preferential rights in the Constitution and legislative enactments and a superficial modernisation, social changes are still stuck in the century-old mould. The major reason for this status quo is the entrenchment of patriarchal mores with which women themselves collaborate. The thrust of the 19th century is to construe Indian womanhood in terms of an amalgam of educational modernisation and retention of femininity. Such a synthesis did not change ideas of female modesty and economic dependence of the women on men. The nationalist movement and post-independent Indian State continued to emphasise this tendency towards defining a primary role for women as homemakers. The changes in law created a framework for equalisation of gender roles without providing the catalytical element of radical overhaul of gender relations. The result is that the supposed progress in status and opportunity for Indian women is only cosmetic without any qualitative attitudinal change. In spite of availing employment opportunities the acceptable female behaviour is seen in terms of nurturing maternal and homemaking role. Most women's magazines contain lifestyle choices, fashion, decor and child-care advice. There is great stress on the cult of beauty and craze for fitness, grooming to be more attractive and feminine. The career of Indian woman is sought as a supplement to the traditional role of a successful homemaker. Women themselves acquiesce to this value system, for it affords them the security of psychological dependence, social prestige and adherence to the superficial westernisation. In the west, to be "unfeminine" is no longer a slur, or to deviate from mother-wife role is not socially unacceptable. In the Indian situation, such a woman has to face social barbs, suspicion or accept sympathy. This is a vicious circle leading to compromises and quest for security which results in female acquiescence to the continued validity of accepted social mores. If we indulge in serious thinking as to model gender relation in the next century, there is need to play a far more activist's role being prepared to sacrifice the desires for security and the craving for conformity to sanctioned role expectations. Otherwise, superficial changes in fashion, enforced mobility of education or even employment could hardly be described as emancipation.
Exercise of democratic rights, education, employment, with stress on the cult of beauty as a supplement to the traditional role of wife-mother will only have cosmetic effect unless women come out of the shell of femininity. A more activist role is required to model gender relations by developing appropriate attitudinal transformation in the social system. Else, she becomes a mute symbol in the unfinished agenda of emancipation.
The claims of equality in social arrangements lead us to the question of what its content is. A common characteristic of all contemporary approaches could be identified. They all demand something central to that particular theory. If libertarians demand equal rights, the income egalitarians argue for equal incomes. The basic issue that divides the different approaches is not "whether equality" or "why equality" but "equality of what". The latter question derives importance from the actual diversity of human beings so that demanding equality in terms of one variable tends to clash with that wanting equality in terms of another. We are deeply diverse in internal characteristics such as inherited fortunes, age, gender, general disabilities, particular talents, proneness to illness and so on, as well as in external circumstances such as ownership of assets, social background, environmental predicaments and so on. It is precisely because of such diversity that insistence on egalitarianism in one field requires rejection of egalitarianism in another.
There is a well-known presumption that all men are born equal. Despite such presumption the substantive importance of the question posed relates to the empirical fact of pervasive human diversity. Investigation of equality that proceeds with the assumption of antecedent uniformity thus misses out all major aspects of the problem. Human diversity is a fundamental aspect of our interest in equality.
Mary Wollstonecroft's classic work A Vindication of the Rights of Woman published in 1792 spoke about not only the well-being of women but also rights that were aimed at the free agency of women. Not long ago, the task was to achieve better treatment for women a squarer deal. The concentration was mainly on the well-being of women. Those objectives have gradually evolved or broadened to include the active role of women's agency. No longer the passive recipients of welfare-enhancing help, women are increasingly seen, by men as well as women as active agents of change: the dynamic promoters of social transformation that can alter the lives of both women and men.
The play The Merchant of Venice places discussions of ethics, morality and right doing at its centre. Complicated for modern readers by the controversial aspects of anti-Semitism, the play still deals with the important modern moral and ethical dilemmas contracts, commercial bonds, fidelity, marriage, friendship, loyalty, justice, the spirit versus the letter of the law, legal remedies and choice. Portia has become an evocative figure primarily because of the "mercy speech", which she delivered in the trial scene. Portia disguised as a male jurist comes to "save" the fate of her lover Bassanio's friend Antonio against demands of enforcement of the bond of Shylock, the Jew. The "pound of flesh" for failure to honour the debt. This scene is read as the major theme of the play, that "mercy should season justice". From this famous and evocative speech, psychologists and professors in law, have argued that Portia represents a feminine, mediating force in law, calling for the tempering of justice with mercy. Shylock rejects Portia's pleas by saying "I crave the law", "the penalty and forfeit of my bond". At that moment Portia becomes an extraordinary conventional lawyer. She recognises that law must be followed and the bond enforced because precedents must be obeyed or many an error by example will rush into the State it cannot be. Having decided that law must be enforced, Portia demands to see the document the contract of debt. She gives Shylock his judgment a pound of flesh, closest to the heart of Antonio. Then in an act of clever lawyering and language manipulation, proceeds to read the text of law quite literally. She reports Shylock had better find a skilled surgeon for the bond grants him a pound of flesh but Portia shows Shylock the law and tells him that if he urges justice, he shall have it and thus must live by law itself. Shylock capitulates and asks for precisely offered "settlement" of three times the money owed. Portia, the masterful lawyer still recounts another law in response. Because Shylock will have justice interpreted as letter of the law, he must contemplate how those laws affect him as well, since according to the law any action that seeks to tamper with the life of a citizen shall lose his property, half to the harmed citizen and half to the State. Further, his life shall be at the discretion of the Duke. The Duke and Antonio however showed Shylock their mercy allowing him to live as a Christian and leave his property to his Christian son-in-law.
Portia evokes a feminist aspiration for law and ethics. As Jane Cohen has nicely summarised, those of us who have relied on Portia as a metaphor for women's role in the legal profession see three roles for women viz. (1) women would inhabit the role of lawyer differently than men if they could overcome men's domination of the profession; (2) women will reconstruct the profession and the legal system to be more comprehensive, more contextualised, less rule-bound, more responsible to others, as well as clients and more conscious of socially just ends; (3) women will refuse to capitulate to a "macho" ethic of law and will try to incorporate their own integration of psycho-social health, and family balance, into their roles as lawyers.
Some feminists urge that Portia should be abandoned as a heroine because she has accomplished her results by manipulation, racial hatred and forced religious conversion, rather than beneficent mutual understanding of feminist mediation even if she has done so by demonstrating her strength, intelligence and power in resolving conflicts of the play.
Sita was not born, but found, and after marriage, exile, agnipariksha and abandonment was her lot. Yet, there is not a single temple to Sita, and Rama is adored as the ideal man Maryada Purushottama Adarsha Purusha.
When the Inter-Governmental Commission on Status for Women (CSW) met for the first time in 1947, its subject was implementation of the UN Charter the first ever international agreement to proclaim gender equality, a fundamental human right. When CSW met in 1997, its subject was a platform for action issued by the First World Conference on Women at Beijing in 1995. One hundred and eighty-nine Governments that met at Beijing had reached a consensus on guidelines for incorporating the goal of gender equality into national, international and global policies of economic, political and cultural realms. Particular priorities are poverty, education and training, wealth, violence, armed conflict, the economy, power and decision-making, institutional mechanism, for advancement of women, human rights, the media, the environment and the girl child. CSW is charged with monitoring the follow-up to the Beijing Conference no small task when the 12 priorities are interconnected and when each calls action by Governments, the international community and civil society.
CEDAW adopted by the General Assembly in 1979, recognised as an international bill of rights for women requires States to eliminate discrimination both as of fact and as of law, discrimination against women in the enjoyment of their civil, political, economic and cultural rights.
The journey of human rights, and especially women's rights, is one of a long and hard struggle. Women's rights must necessarily be part of a wider movement of human rights. And human rights without women's rights or gender rights are meaningless.
Gender justice challenges the traditional rationality of law. The traditional rationality speaks of equality in the context of an assumed secondary role for women even concerning decision-making which affects their bodies and lives. Gender justice seeks to displace this secondary role itself by affirmative pro-women action that puts them on an equal footing with men. Article 15 of the Constitution enables States to make special provision for women. Article 23 of the Constitution prohibits trafficking in women and makes it a constitutional offence.
The directive principles of State policy provide for maternity relief as part of just and humane conditions of work as also assure "equal pay for equal work" vis-a-vis men. In 1987 in Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa1, the Supreme Court intervened to ensure that a Confidential Secretary in a private firm got the same pay as a male steno's in the firm. Differential ages of retirement between foreign and Indian Air Hostesses in the case of Lena Khan v. Union of India2 was removed. The plea that such a step was taken to avoid violation of British law was firmly repelled by the Supreme Court declaring that Air India must comply with Article 14 and if need be, walk out of the country which makes it impossible to abide by the ideals of our Constitution. In 1982 in Air India v. Nergesh Meerza3, the Supreme Court refused to fix different ages of retirement and in preventing them from having children. In 1990, the Supreme Court provided machinery for prevention of girls being taken into the flesh market. Detailed guidelines are set out to be complied with by Governments in the case of Vishal Jeet v. Union of India4
With more women coming out to work, suffering harassment at the hands of male colleagues at the work place endured by women due to their inherent modesty, fear of loss of job, absence of redressal machinery, the Supreme Court formulated guidelines in Vishaka v. State of Rajasthan5 in the absence of any legislation in addition to rights available under the Protection of Human Rights Act, 1993. In Nari Niketan v. Delhi Admn. and Upendra Baxi v. State of U.P.6, the Supreme Court ensured minimal hygiene, shelter, providing nutritional and medical facilities to women under State protection. The courts' approach to defence of "morally loose woman" in rape cases has undergone a radical change. Guardianship rights of a woman has undergone changes as is evident in Githa Hariharan case7 In Daniel Latifi v. Union of India8, the Supreme Court has given an expansive interpretation to the provision of the enactment so that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her. The Muslim husband is saddled with the responsibility of taking care of his wife even after iddat period.
In the male-dominated society, the attitude that the girl child be denied the right to be born, has to undergo a fundamental change. While law can be remodelled from anti-woman stance, society has to move to sincere action beyond mere tokenism of reservation of seats for women in panchayats, municipalities and even in Parliament. The hard task is social transformation by which a girl is given an equal opportunity of survival and development so that she becomes an adult partner in the country's development. Courts can only show the way but ultimately it is public opinion that must uphold the rights of women.
The Vienna Declaration in 1973 declared that: "All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis."
In countries where survival of the human being is basic, the crucial aspects are food, shelter, clothing and medical care. These sustenance-level rights are minimum beneath which no one is to be allowed to sink without destroying human dignity. Survival rights as opposed to enforcement of political and civil rights cannot be dealt with equal emphasis.
Only a change in the mindset could bring about gender-sensitivity in the administration of justice.
May I sum up what I have stated so far:
1. Equality of women is a basic condition of social, economic and political development of the nation.
2. To emancipate women from their dependent and unequal status, improvement of opportunities for education, employment and earning power should be given top priority.
3. Society owes a special responsibility to women as mothers, safe bearing and rearing of children is an obligation that must be shared by the mother, the father and the society.
4. The contribution made by an active housemaker to the management of a family should be accepted as economically and socially productive and as essential for national development.
5. Marriage and motherhood should not become a disability preventing women from fulfilling their full and proper role in the task of national development for which society including women themselves must accept their due responsibilities.
6. Social awareness is necessary to attain goals envisaged in the Constitution or other statutes and to transform "de jure" equality to "de facto" equality.
- (1987) 2 SCC 469
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- (1987) 2 SCC 402
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- (1981) 4 SCC 335
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- (1990) 3 SCC 318
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- (1997) 6 SCC 241
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- (1998) 8 SCC 622
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- Githa Hariharan v. Reserve Bank of India, (1992) 2 SCC 228
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- (2001) 7 SCC 740
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