Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697748491889.pdf (India)
GENDER JUSTICE INTRODUCTION The issue of gender justice has been debated over for a long time and is still one of the biggest human rights challenges.

Although gender equality is a fundamental human right and is essential for a peaceful and developed society, achieving gender equality is still an unfinished business.

In India, deeply-rooted cultural institutions play a major role in perpetuating gender inequality.
The Indian courts often act as activists for people and a profound Indian Constitution create hope for achieving gender justice.

The Constitution of India has given new dimensions of Indian society in certain sphere.

The Constitution does not use the word 'Gender'.

It uses the word 'sex' in articles 15(1), 16 (2) and 325 which prohibits discrimination on the grounds of sex.
Although the word 'sex' has a narrower meaning than the word 'gender' and the above provisions merely guard against discrimination on the basis of 'sex' and the 'gender justice' which aims at much more than mere absence of discrimination.

The distinction and discrimination on the basis of sex, color, creed, caste, race religion etc have been done away with, and according to fundamental rights have been declared void.
In the same strain, Article 14 of the Constitution guarantee quality before the law, Article 15 and 16 remove prohibition or discrimination on the ground of religion, race, caste, sex or place of birth etc and also gives a direction to the state to make provisions for women and children.

Interestingly, our constitution authorizes the state to make special provisions for the protection and development of women and children.
A large number of laws have also been enacted from time to time for empowering them and raising their status.

The government has amended a number of laws that affected women adversely including laws related to dowry, rape, cruelty, maintenance, marriage, domestic violence, prostitution and obscenity etc.

The apex court of India has passed several progressive judgments favouring women.
Various welfare and development schemes have been introduced to improve the living conditions of women and to increase their access to and control of material and social resources.
Further, various special steps have been taken to remove legal, social and other constraints and disparities to enable them to make use of the rights and opportunities made available to them yet there are many outdated social customs and traditions which are still followed, they wield more power and authority than the statutory enactments and undo, most of the gains of these pragmatic programmes resulting in inequitable distribution of the fruits of progress and development.
GLOBAL VIEW ON GENDER JUSTICE Gender Justice, simply put refers to equality between the sexes.

Gender justice is a correlation of social, economic, political, environmental, cultural and educational factors, these preconditions need to be satisfied for achieving gender justice.

Globally, gender justice as a cause has gained in strength over the years, as it has been realised that no state can truly progress if half of its population is held back.
1 The struggle for equal rights, freedom and justice has been made by human rights activists, feminists, NGO's and through Government support.

Even though considerable progress has been made in this regard, women are still lagging behind.

With globalisation, there are other complex issues that women face today along with the elementary issues that have always plagued women.

Consumerism and cultural heterogeneity has brought in its fold more objectification of women.
Apart from these issues, there are still many cultures in the world where the condition of women is still deplorable, they still have no control or right over themselves or their bodies or their children.

The condition is worse in Africa and the Middle East.

Gender Justice refers to harmonising of rights and needs of women into mainstream society.

Justice in this sense means more balanced behaviour, an end to violence and equal distribution of social necessities.
Globally, the United Nations has established a strong mandate for gender justice.

The focus on gender equality and gender justice has been there since the inception of the UN.

In 1946, a separate body was formed to work on the advancement of women.

The Commission on the Status of Women worked from its inception to collect and compile data on women's situation around the world, to promote women's human rights and raise awareness of, and support for, their contribution to development.
The Decade for Women (1976-1985) and four world conferences on women (between 1975 and 1995) contributed significantly to raising awareness and commitment to gender equality and gender justice.

In 1995, the Beijing Declaration and Platform for Action had been framed for guiding work at national level.

The human rights treaty on gender equality – The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has been ratified by 185 states and the optional protocol by 90 states.
Since 1995 and the adoption of gender mainstreaming as a critical strategy for achieving gender equality, intergovernmental bodies – such as the General Assembly, the ECOSOC and the Commission on the Status of Women - have worked to mainstream gender perspectives as an integral part of all policy areas.

At the 2005 World Summit, world leaders reiterated that progress for women is progress for all.

The UNIFEM is another agency of the UN.

It is the development fund for women at the United Nations.
It provides technical and financial assistance to innovative programmes and strategies to foster women's empowerment and gender equality.

The United Nations Development Programme (UNDP) also has the Gender Development Index (GDI).

It is an indication of the standard of living in a country, developed by the UN.

It aims to show the inequalities between men and women: long and healthy life, knowledge and decent standard of living.
India is ranked 128th in the Gender Development Index, while USA is 12th and UK is 16th.

INDIAN LEGIS LATIVE FRAMEWORK ON GENDER JUS TICE In India, the principle of gender equality has been enshrined in its Constitution, the very document that provides the basis and guidance for governance in a democracy.

In this sense, gender justice in India is inextricable for the working of the democratic principles we have adopted.
The inclusion of gender justice – equality before the law, enfranchisement, positive discrimination for neutralizing social and economic inequity – among other things made the Indian Constitution.
2 While we are still a long way from achieving what can be termed as „equality‟ in the sphere of gender, the fact that the Constitution provided a foundational basis to the idea of gender justice in India has helped us sustain a struggle for levelling the field en masse and has paved the way for enactment of legislations that were passed in the years following 1950.

The Constitutional Provisions that provide for gender justice in India include Articles 14, 15, 16, 39, and 42.
Article 14 provides for equality before the law, or for the equal protection of laws.

The equality provided herein is therefore two pronged: equality before the law means that the State shall not discriminate between two citizens – every person is the same in the eyes of the law.

On the other hand, equal protection of laws enables the State to undertake positive discrimination in order to bring all citizens on an equal footing.
It gives the State freedom to make special provisions for disadvantaged sections of the society, which includes affirmative action and special status for women etc.

Article 15 (1) explicitly prohibits any discrimination on the basis of sex; it states, „The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.‟ This does not prevent the State from taking affirmative action in favor of women.
Under Article 15(3), the State is provided with the power to make special provision for women and children.

Article 16 provides for equality of opportunity of all in matters relating to public employment or appointment to any office; it specifically forbids discrimination on the grounds of sex.
Article 16 (2) reads: „No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.‟ Article 39 provides for securing the right to an equal means of livelihood for both men and women and that both men and women have the right to equal pay.

Article 42 provides for securing just and humane conditions of work and for maternity relief.
Apart from these major Constitutional Provisions the other constitutional provisions accentuating upon gender equality are hereby mentioned below: i.

The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46) ii.

The State to raise the level of nutrition and the standard of living of its people (Article 47) iii.
To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A) (e)) iv.
Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3)) v. Not less than one- third of the total number of offices of Chairpersons in the Panchayats at each level to be reserved for women (Article 243 D (4)) 3 vi.
Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T (3)) vii.
Reservation of offices of Chairpersons in Municipalities for the Scheduled Castes, the Scheduled Tribes and women in such manner as the legislature of a State may by law provide (Article 243 T (4)).

In order to meet the Constitutional Mandates, the Indian State has in the years following Independence enacted various laws that provide for equal rights, help counter the results that have arisen from social discrimination and provide support to women.
While there are various crimes defined under the Indian Penal Code, 1860 (IPC) of which both men and women can be victims (robbery, theft, murder, etc.

), but there are a few crimes which fall under the category of crimes against women, defined under the Indian Penal Code (IPC), 1860: i. Rape (Sec.

376 IPC) ii.

Kidnapping & Abduction for different purposes ( Sec.

363-373) iii.

Homicide for Dowry, Dowry Deaths or their attempts (Sec.

302/304-B IPC) iv.

Torture, both mental and physical (Sec.


498-A IPC) v. Molestation (Sec.

354 IPC) vi.

Sexual Harassment (Sec.

509 IPC) There are also numerous legislations that have specific provisions to address women and their interests thereby providing a strong legislative basis for gender justice in India.

These are: Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements.
Some acts which have special provisions to safeguard women and their interests are: (i) The Employees State Insurance Act, 1948 (ii) The Plantation Labour Act, 1951 (iii) The Family Courts Act, 1954 (iv) The Special Marriage Act, 1954 (v) The Hindu Marriage Act, 1955 (vi) The Hindu Succession Act, 1956 with amendment in 2005 (vii) Immoral Traffic (Prevention) Act, 1956 (viii) The Maternity Benefit Act, 1961 (Amended in 1995) (ix) Dowry Prohibition Act, 1961 (x) The Medical Termination of Pregnancy Act, 1971 (xi) The Contract Labour (Regulation and Abolition) Act, 1976 (xii) The Equal Remuneration Act, 1976 (xiii) The Prohibition of Child Marriage Act, 2006 (xiv) The Criminal Law (Amendment) Act, 2018 (xv) The Factories (Amendment) Act, 1986 (xvi) Indecent Representation of Women (Prohibition) Act, 1986 4 (xvii) Commission of Sati (Prevention) Act, 1987 (xviii) The Protection of Women from Domestic Violence Act, 2005 (xix) The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (xx) The Protection of Children from Sexual Offences Act, 2012.
(xxi) The Transgender Person‟s (Protection of Rights) Act 2019 Out of these the prominent contemporary legislations addressing women welfare are hereby dealt with.

i.

The Employees State Insurance (ESI) Act, 1948: The objective of the Act is to provide for certain benefits to employees in case of sickness, maternity and employment injury.
The Act is applicable to all factories (this includes factories owned by the Government) and any other establishment to which an appropriate government may extend the provisions of the Act, after giving one month‟s notice.

The Employee State Insurance (ESI) Corporation was established under this Act.
Section 46 of the Act, which covers the benefits for employees, has provided for periodical payments to an insured woman in case of confinement or miscarriage or sickness arising out of pregnancy, confinement or premature birth of child.

The word confinement has been defined under the Act as „labour resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting in the issue of a child whether alive or dead.‟ ii.
The Maternity Benefit Act (MB Act), 1961: The 1961 Act was amended by the Maternity Benefit (Amendment) Act, 2016, the amendments coming into effect from 1st April 2017.

While the benefits of the ESI Act are available to insured women earning up to INR 21,000 per month, the MB Act applies to every woman employed in factories, mines, shops, commercial establishments that employ ten or more employees.

There is no wage threshold under the MB Act.

iii.


The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013: As discussed above, the Constitution has enshrined the principles of gender justice in India under various Articles.
Workplace sexual harassment was first recognized by the Indian Legislature in the case of Vishaka v. State of Rajasthan, in which the Supreme Court framed certain guidelines, called the Vishaka Guidelines and issued directions to the Union of India to enact a law for combating sexual harassment at workplaces.
Since a specific law on sexual harassment did not exist at the time of passing of the judgement, the Supreme Court formulated the Vishaka guidelines wherein employers were mandatorily directed to provide a mechanism to address and resolve complaints relating to sexual harassment at workplaces.

Sixteen years following the judgement, an Act was brought into effect in accordance with the Supreme Court guidelines.
The objective of the Act is to provide protection against sexual harassment of women at workplaces and for the prevention and redressal of sexual harassment and for matters connected therewith or incidental thereto.

The definition of „sexual harassment‟ as provided under the Act falls within the definition in the Vishaka judgement.
Sexual harassment, as defined under Section (2)(n) of the Act, includes: (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured 5 remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non- verbal conduct of a sexual nature.
Interference with work or creating a hostile work environment, implied or explicit promise of preferential or treatment in employment and/or implied or explicit threat about present or future employment status, if accompanied with or connected to any act of sexual harassment may also amount to sexual harassment.

Sexual harassment, as defined under the Act, is wide enough to cover implied and direct sexual conduct; such conduct means physical, verbal and written conduct.
The Act requires an employer to set up an Internal Complaints Committee (ICC) at each branch or office with ten on more employees.

The ICC is to be composed of a minimum of two employees; external members are to be from non-governmental organisations or association committed to the cause of women.

No less than half of the members are to be women.


It is also required to set up a local complaints committee (LCC) to address complaints from women employed in organizations without an ICC owing to a workplace having less than ten employeesor when the complaint is against an employer.

In cases where a complaint is received, the Committee has to follow up and complete an inquiry within a time period of 90 days.
Upon completion of inquiry, the report is to be sent to employer or District Officer, as the case may be.

They are re quired to take action on the report within 60 days of receiving it.

There are penalties provided under the Act where an employer can be punished with a fine of up to INR 50,000 for non-compliance with the provisions of the Act.

iv.
iv.

Women‟s Reservation Bill: The Women‟s Reservation Bill is a pending bill which has sought to amend the Constitution of India to reserve thirty-three percent (one-third) of the total seats in Lok Sabha-the Lower House of Parliament and all state legislative assemblies for women.

One third of the total number of the seats reserved for Schedule Tribes and Scheduled Castes are to be reserved for women of those groups in the Lok Sabha and legislative assemblies.
The bill was passed by the Rajya Sabha on 9 March 2010.

If passed by the Lok Sabha, the Act that will thereby come into force will be a momumental document for gender justice in India.

v. The Criminal Law Amendment Act, 2018- The legislature enacted the Criminal Law Amendment Act, 2018, to amend the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012.
It received the President‟s assent on 11-08-2018 and was notified on the same day, to be effective from 21-04-2018.

Salient features of the Act are:  It stipulates a minimum jail term of 20 years which may go up to life in prison or death sentence, for the rape of a girl under 12 years.

While perpetrators involved in the gangrape of a girl below 12 years of age will get life imprisonment or death.
 Amendment was made to sub-section (1) of S. 376, increasing the term of punishment for perpetrators, from 7 years to 10 years.

6  The amendment under S. 376 additionally makes a provision for the fine to be payable to the victim.

 S. 439 of the CrPC was amended to make it imperative for the Courts in cases of grant of bail to an accused under S. 376(3), S.376 AB , S. 376DA or S.376 DB of the IPC to give notice of the application for bail to the Public Prosecutor.

vi.
vi.

The Transgender Person‟s (Protection of Rights) Act 2019-This Act will benefit a large number of transgender persons, mitigate the stigma, discrimination and abuse against this marginalized section and bring them into the mainstream of society.

This will lead to inclusiveness and will make the transgender persons productive members of the society.
According to the new definition, a transgender person is somebody “whose gender does not match the gender assigned to that person at birth and includes trans-men or trans- women, persons with intersex variations, gender-queers, and persons having socio- cultural identities such as kinnar, hijras, aravani, and jogta”.

Highlights of the Bill: a) The Act aims to stop discrimination against a transgender person in various sectors such as education, employment, and healthcare.
It also directs the central and state governments to provide welfare schemes for them.

b) It states that a person will be recognized as transgender on the basis of a certificate of identity issued by the District Magistrate.

This certificate will be a proof of identity as transgender and confer rights under this Bill.

c) Going by the Act, a person would have the right to choose to be identified as a man, woman or transgender, irrespective of sex reassignment surgery and hormonal therapy.
d) It also requires transgender persons to go through a district magistrate and “district screening committee” to get certified as a transperson.

e) Composition: The committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
REPRES ENTATION OF WOMEN IN INDIAN JUDICIARY In response to a query about the number of women judges in the Supreme Court, High Courts and tribunals, Union Law Minister Ravi Shankar Prasad has informed Parliament that of the total 1,113 judges in High Courts and the Supreme Court, only 80 are women.

He said that as on 01.09.2020, there are 2 women Judges in Supreme Court and 78 women Judges in various High Courts.
He also filed a statement showing details of Working Strength of Judges and number of women Judges in Supreme Court and High Courts.

The relevant figure quoted by him in the statement are hereby mentioned below: S.No.
Name of the Courts Sanctioned strength of Number of Female A B 1 Supreme Court High Court Allahabad the judges judges working 34 160 02 06 7 Andhra Pradesh Bombay Calcutta Chhattisgarh Delhi Gauhati Gujarat Himachal Pracesh 37 94 72 22 60 24 52 13 Common High Court for the UT 17 of J&K and Ladakh Jharkhand Karnataka Kerala Madhya Pradesh Madras Manipur Meghalaya Orissa Patna Punjab & Haryana Rajasthan Sikkim Telangana Tripura Uttarakhand Since lawyers elevated from the bar to the bench form a significant proportion of judges in the high courts and Supreme Court, it is worth noting that the number of women advocates is still low, reducing the pool from which women judges can be selected.
A change in the judicial culture is also likely to have knock-on effects for litigants.

“Higher numbers, and greater visibility, of women judges can increase the willingness of women to seek justice and enforce their rights through the courts,” said a 2014 report by the International Commission of Jurists.

Though not true in all cases, having a judge who is the same gender as you, can play a role in setting the litigant‟s mind at ease.
For instance, think of a transgender woman as a judge listening to the case of other trans women.

That would inspire confidence in the litigant, as well.

Gender diversity is only one element of diversity.

To be truly diverse, the Indian judiciary would need representation of judges from not only different gender identities, including trans and non- binary but also different caste, socioeconomic, religious, and regional backgrounds.
It would also mean appointment of judges from doubly marginalised sections to allow for the representation of intersectional voices.

There is no denying that progressive male judges too can pronounce pro- 8 women judgements.

Likewise, the isolated instances of some women judges championing gender justice do not mean that all women judges are progressive or feminist.
SIGNIFICANT ROLE OF THE JUDICIARY IN ENSURING GENDER JUSTICE Gender-based stereotyping enjoined on the patriarchal ideology has been rooted in India for centuries and many of them have over the years crept into the country‟s legal system.

The historic injustices done by society towards women were even visible in the judicial decisions as well.

Equality of status and equality of opportunity is the clarion call of our Constitution.
According to the framers of our Constitution equality could only be amongst equals; otherwise it might result in injustice.

Hence, they proposed the concept of substantive equality, whereby special provisions were made for unequals to bring them at par with the equals.
They saw women as victims of the rigid hierarchical social system, and hence, introduced Article 15 (3) in the Constitution directing the State and all its machineries to take affirmative action and protective discrimination to alleviate centuries of exclusion of women from politics, education and public employment.
It goes to the credit of Judiciary that the Supreme Court and the various High Courts, in their plethora of decisions, have recognized and given effect to this vision, affirming that compensating for discrimination is not an exception to equality, but a necessary means of achieving equality.

Article 15(3) has been used by the Supreme Court, thus, not only to uphold the laws that treat women favourably than men, but also to interpret the laws in a manner to extend protection to women.
The infamous Mathura Rape Case1, Nandan Kanan Rape Case2, Raju’s Case3, Soumithri Vishnu Case4, M. Kishwar vs. State of Bihar5, are profound examples of the conservative and patriarchal approach taken by the Apex Court.

The judgments of the Court in case of Soumitri Vishnu vs. Union of India, and which was subsequently followed in Revathi vs. Union of India6, were actually anti-gender justice decisions.
In the pseudo name of protection, it actually widened further the inequalities faced by women in the wedlock.

With increase in judicial activism Judiciary has always molded itself into the role of champion for women‟s rights.

If any adverse discrimination against women, was noted by the Judiciary in any of the existing laws and State actions, the Judiciary was quick to strike it down.
At the same time, Judiciary has been prompt to uphold the validity of the Legislations enacted for protection of women‟s rights.

Remnants of judicial activism in India can be traced back to the pre-independence period.

Justice Robert Hill Pinhey, in one of the most revolting and path-breaking judgments of his time on women emancipation in the famous case of Dadaji Bhikaji vs. Rukhmabai7, in a suit for restitution of conjugal rights in the Bombay High Court.
11-year-old Rukhmabai was married to 19 years old Dadaji Bhikaji.

She questioned the validity of her marriage with Dadaji.

The case caused a lot of disturbance among the conservative minds of the society, who indeed were the 1 Tukaram vs. State of Maharashtra, (1979) 2 S.C.C.

143 (India).

2 Pratap Mishra vs. State of Orissa, A.I.R.

1977 S.C. 1307 (India).

3 Raju vs. State of Karnataka, A.I.R.

1994 S.C. 222 (India).

4 Sowmithri Vishnu vs. Union of India, 1985 Supp S.C.C.

137 (India).
137 (India).

5 (1996) 5 S.C.C.

125 (India).

6 A.I.R.

1988 S.C. 835 (India).

7 (1885) ILR 9 Bom 529 (India).

9 majority.

It raised multiple debates on subjects like women education, child marriages, consent, Hindu law, customs and traditions etc.
Pinhey J. held that, “It seems to me that it would be a barbarous, a cruel, a revolting thing to do to compel a young lady, under those circumstances, to go to a man whom she dislikes, in order that he may cohabit with her against her will.” However, Pinhey succeeded in drawing attention to the vexed question of the relationship between morality and law, and in embedding the case within a broader legal-humanitarian framework.

His verdict made the case inseparable from the women‟s cause.
There was no chance for those who sought to make it a private matrimonial dispute.

The Indian judiciary has also shown a mixed trend over the years towards the issues of women.

While the period immediately after Independence, up to the seventies witnessed a conservative and narrow-minded judicial system, the late eighties and nineties have seen the emergence of judicial activism which reached its heights recently.
The year 2018 has been one such year where the Supreme Court had decided to throw away many such gender-based stereotypes and inequalities thrust upon by the society upon women.

In C.B.Muthamma vs. Union of India 8, the Supreme Court struck down the discriminatory rules of the Indian Civil Services against women on the ground that they violated the fundamental right of women employees to equal treatment in matters of public employment.
Justice Krishna Iyer has stated that, “Freedom is indivisible, so is justice.
That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-à-vis half of India‟s humanity, viz., our women is a sad reflection on the distance between Constitution in the book and law in action.” In Nargesh Meerza’s Case9, the Supreme Court struck down the Air India Regulations relating to retirement and pregnancy bar on the services of Air hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary.
The nineties beaconed, the emergence of a new era of judicial activism and dynamism towards rape laws.

It witnessed the rekindling of the hearts of the Indian judges towards the cause of justice.
The modern scientific and technological developments taking place in the society, as well as the enlightenment of the inner conscience of the people at large, no doubt, had its effect on the judicial process, and it revived its energies to forge new tools and devise new remedies for the purpose of safeguarding the rights and liberties of the people, especially women.
In the historic judgment on gender equality in the case of Githa Hariharan vs. RBI10, the Supreme Court held that the mother can act as a natural guardian even when the father is alive.

In Neera Mathur vs.

L.I.C11., the Court recognised woman‟s right to privacy in respect of information regarding her reproductive functions.
It held that the questionnaire that sought information on the dates of the menstrual periods and past pregnancies amounted to an invasion of the privacy of a person and therefore could not be made.

8 (1979) 4 S.C.C.

260 (India).

9 Air India International vs. Nargesh Meerza, (1981) 4 S.C.C.

335 (India).

10 (1992) 2 S.C.C.

228 (India).

11 (1992) 1 S.C.C.

286 (India).

10 The Supreme Court of India has in cases like Govt.

of A.P.

vs. P.B.

Vijayakumar12, Union of India vs. K .P.


Prabhakaran13, the Supreme Court has held that protective discrimination can be made under Article 15(3) of the Constitution.

The Supreme Court has demonstrated great judicial activism while coming to rescue of the working women even at the cost of resorting to judicial activism under Article 141 of the Constitution.
To combat the sexual harassment experienced by women at workplaces the Court stepped into the shoes of the lawmaker and issued directions in the sensational case of Vishaka vs. State of Rajasthan.14 In a PIL filed before the Supreme Court emphasised the need for effective legislation in India to curb sexual harassment of working women.

The Court followed this decision again in Apparel Export Promotion Council vs. A. K. Chopra15.
Justice K Rama Swamy in Madhu Kishwar vs. State of Bihar16, observed that, “Half of the Indian population too are women.

Women have always been discriminated against and are suffering discrimination in silence.
Self-sacrifice and self –denial are their nobility and fortitude and yet they have been subjected to all inequalities, indignities, inequality and discrimination.” Even though the State has not yet made any effort to introduce Uniform Civil Code in India, the judiciary has recognised the necessity of the uniformity in the application of civil laws like the law of marriage, succession, adoption and maintenance etc., in the case of Sarla Mudgal vs. Union of India17, and other cases.
Through cases like Mary Roy18, the Apex Court has executed key verdicts on women‟s equal rights over the property.

In C .M.

Mudaliar vs.

Idol of Sri S. Swaminanthaswami Thirukoil19, the Supreme Court has highlighted the right of women in India to eliminate gender-based discrimination particularly in respect of property so as to attain economic empowerment.
In Gaurav Jain vs. Union of India 20, the Court speaking through Justice K. Ramaswamy has elaborately dealt with the issue pertaining to the rescue and rehabilitation of prostitutes and also their children which have far-reaching circumstances.

The court also issued guidelines for the same.


The Court exercised judicial activism and imparted a revolutionary and ground-breaking judgment in the case of Bodhisattwa Gautam vs. Subhra Chakraborty21, wherein it was held that rape is a crime that violates the right to life under Article 21 and described it as „deathless shame and the gravest crime against human dignity‟ and ordered interim compensation to the rape victims.
The Court recognised that fundamental rights can be enforced even against private bodies and individuals.

Decisions of the Supreme Court have had a remarkable impact on rape victim justice movement.

An increased sensitivity towards the plight of the victims is particularly noticeable in the 12 A.I.R.

1995 S.C. 1648 (India).

13 (1997) 11 S.C.C.

638 (India).

14 (1997) 6 S.C.C.

241 (India).

15 1999 (1) Supreme 110 (India).

16 (1996) 5 S.C.C.

148 (India).

17 (1995) 3 S.C.C.

635 (India).


18 Mary Roy vs. State of Kerala, 1986 A.I.R.

1011 (India).

19 (1996) 8 SCC 525 20 (1997) 8 S.C.C.

114 (India).

21 (1996) 1 S.C.C.

490 (India).

11 landmark case of State of Punjab vs. Gurmit Singh22.

Justices Dr AS Anand and Saghir Ahmad made some revolutionary and ground-breaking observations in this case and provided guidelines that should be observed by the Courts during rape trials.
The judiciary has on many occasions, while convicting the accused of rape, ordered compensation to be paid to the hapless victims.

In the Delhi Domestic Working Women’s Forum vs. Union of India23, the Indian judiciary has laid down the following broad parameters in assisting the victims of rape, in line with the core guidelines of International documents.
In yet another landmark case, Chairman, Railway Board vs. Chandrima Das24, the Court asked railways to pay rupees 10 lakh as compensation to the prosecutrix for the rape committed by some railway officials in the railway restroom.

On the issue of “equal pay for equal work”, the Supreme Court has in the case of Associate Banks Officers’ Association Vs. State Bank of India25, upheld the Equal Remuneration Act and held that, women workers are in no way inferior to their male counterparts.
Hence, there should be no discrimination on the ground of sex against women in payment of remuneration.

In State of Maharastra vs. Mahukar Narayan Mardikar 26, the Supreme Court held that even a prostitute has a right to privacy under Article 21, and no person can rape her just because she is a woman of easy virtue.
In Rajesh Kumar Gupta Vs. State of Uttar Pradesh27, the Supreme Court, while concurring with the view taken by the High Court of Allahabad in respect of the reservation of 50% posts in favour of female candidates as primary school teachers, held that, Article 15(3) of the Constitution enables the State Government to make special provisions for women and children, notwithstanding, the prohibition contained in Article 15(1).
It was observed that, “particularly viewed in the background of the fact that a large number of young girls below the age of ten years were taught in the primary schools and recognizing that it would be preferable that such young girls are taught by women, the reservation of 50% of the posts in favour of female candidates was justified.
In the case of Anuj Garg V/s Hotel Association of India 28, the apex court declared section 30 of Punjab Excise Act 1914, which prohibited employment of women in any part of such premises in which liquor or intoxicating drugs were consumed by the public, as unconstitutional, holding that right to self-determination is an important off-shoot of the gender justice discourse.

Hence instead of putting curbs on women‟s freedom, their empowerment would be a more tenable and a socially wise approach.
On the same analogy, the closure of Dance-bars was declared to be affecting women‟s right to earn livelihood.

In the recent Judgment of Charu Khurana and Others Vs. Union of India 29 the Apex Court has once again expounded the concept of Gender Justice by observing that, “though there has been formal removal of institutionalized discrimination, yet, the mind set and attitude ingrained in the 22 A.I.R.

1996 S.C. 1393 (India).

23 (1995) 1 S.C.C.

14 (India).

24 (2000) 2 S.C.C.

465 (India).


25 AIR 1998 SC 32 26 (1991) 1 S.C.C.

57 (India).

27 2005 (5) SCC 172 28 (2008) 3 SCC 1 29 2015 (1) SCC 192, 12 subconscious have not been erased”.

In this case, the main grievance of the Petitioner was that the Cine Costume Makeup Artists and Hair Dressers Association of Mumbai had refused to issue Makeup Artist Card to the Petitioner on the ground of her gender, so that the male members were not deprived of work as Makeup Artist.
While referring to Fundamental Duties provided under Clauses (e) and (j) of Article 51-A, the Supreme Court, held that, “it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced”.

The discrimination faced by women in military service, of being denied permanent service commission , though equally competent and eligible as their male counterparts, has also been done away in the judgment of Annie Nagraja and Ors.

V/s Union of India 30 by the Delhi High Court.


In Lillu @ Rajesh and Anr vs. State of Haryana 31, accused had challenged his conviction for the offence of rape punishable under Section 376 of IPC.

The conviction was recorded by the Court of Additional Session Judge, Delhi and confirmed by the High court in first appeal.

The medical evidence of the doctor, who conducted two finger per vagina test, showed that hymen was completely torn.
The doctor stated the possibility of prosecutrix being habitual to sexual intercourse cannot be ruled out.

Apex Court held that sole testimony of prosecutrix itself is enough to record a conviction, when her evidence is read in its totality and found to be worth of reliance.

As prosecutrix was a minor, the question as to whether she was habituated to sexual activities or not, was held to be immaterial to determine the issue of consent.
It was further held that even if the victim was previously accustomed to sexual intercourse, it cannot be the determinative question.

According to apex court, even if the victim had lost her virginity earlier, it can certainly not give a license to any other person to rape her.
The apex court held that “Undoubtedly the two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.” Medical procedures should not be carried out in a manner that constitute cruel, inhuman or degrading treatment.
The very recent decisions of the Supreme Court beginning from the TRIPLE TALAQ case to the very controversial SABARIMALA case, the Supreme Court has showcased a never before proactive role in ensuring gender justice not only in the best interest of women but in the interest of the whole of humanity.

The abolition of the practice of triple talaq by the Supreme Court has brought in a positive wave towards uniform civil code32.
The Court has ended a religious practice that demands wives to be in servitude to their husbands.

On 6th September 2018, another historic and progressive judgment was passed by the Chief Justice Deepak Misra by reading down Section 377 IPC by decriminalising homosexuality.
The judgment is one of the most prominent judgments passed by the Honourable Supreme Court in ensuring gender justice.33 In The Secretary, Ministry of Defence Vs.Babita Puniya & Ors34 the Apex Court has granted permanent commission to women officers in the Army irrespective of their number of years of service.

30 2015 SCC On Line 11804 31 2013(14) SCC 643 32 Shayara Bano vs. Union of India & Others , (2017) 9 S.C.C.

1 (India).

33 Navtej Singh Johar & Ors.vs.

Union of India thr.
Union of India thr.

Secretary Ministry of Law and Justice, Writ Petition (Criminal) no.

76 of 2016 (India).
34 Civil Appeal Nos 9367-9369 of 2011 13 Again in the case of Joseph Shine vs. Union of India 35, the Court overruled its own judgment in the case of Sowmithri Vishnu vs. Union of India & Anr.,36 by decriminalising adultery and striking it off the Indian Penal Code holding that the law was based on gender stereotypes and thus violated Articles 14 and 15 of the Constitution as the law considered only the husband of the adulteress aggrieved while the wife of the adulterer had no interests.
The Court went a step ahead and held that adultery itself cannot be made an offence as subjecting interpersonal relationships to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy.

Off late, the Court has lifted the ban on women of 10 to 50 years from temple entry at Sabarimala in Kerala 37.

Justice Deepak Misra has pointed out the inequalities persistent in modern society based on gender.
“..The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned.

Such a dualistic approach and an entrenched mind-set result in indignity to women and the degradation of their status.
The society has to undergo a perceptual shift from be ing the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man.” The heavy protests that followed the Sabarimala Court order and still continues, indicates that judicial activism has travelled ahead of its time in ensuring gender justice while the conservative and patriarchal society disavows these vicissitudes.
In Krishan Lal vs. State of Haryana38 it was aptly remarked by Justice Krishna Iyer that “One sensitized Judge is a far better armor against gender outrage than the long clauses of sections with all the protection writ into it.” It is indeed an hour of intense pride that judiciary is finally taking cognisance of the atrocities and injustices levelled against women for ages.

Sometimes laws have to act as instrumentalities for social change.
The women clenched in the deep roots of patriarchy entrenched in the Indian society for aeons, calls for judicial interference to free them.

35 Writ Petition (Criminal) no.

194 of 2017 (India).

36 1985 A.I.R.

1618 (India).

37 Indian Young Lawyers Association & Ors.

vs. State of Kerala & Ors.

Writ petition (civil) no.

373 of 2006 (India).

38 1982 SC 1252 14