It is worth looking back on the general progress made by courts across the country in promoting the Constitutional mandate of gender equality.
To that end, here are some cases touching upon women’s rights, that have raised eyebrows in the past year, for better or for worse.
For Shame, Your Lordships
It is discouraging to note that on more than one occasion, the Court has demonstrated the tendency to shame women, particularly when it comes to sexual offences.
In February last year, the Bombay High Court deemed it fit to shame the prosecutrix for having done “all dirty things“, as he granted bail to a rape accused.
In September, the Punjab and Haryana High Court found it necessary toshame the prosecutrix in the JGLS rape case, for her “promiscuous” behaviour, while allowing bail for the accused. Amidst the criticism that followed, the Supreme Court stayed the High Court order in an appeal filed against the same.
The insistence on glorifying the ‘ideal virtuous woman’ was also pronounced in the controversy surrounding the release of the movie Lipstick under my Burkha. The film was finally allowed release with an ‘A’ certificate by the Film Certification Appellate Tribunal.
Objections raised by the CBFC that the “women-oriented” film was offensive for its portrayal of “sexual fantasies” was ultimately dismissed by the Tribunal, which held,
“There cannot be any embargo on a film being women oriented or containing sexual fantasies and expression of the inner desires of women.”
The Shape of Consent
Justice AM Badar of the Bombay High Court showed resilience to such conservative bias when he unequivocally held that a woman of ‘easy virtue’ has the right to say no. In the case before him, involving a man accused of raping his niece, the judge was constrained to spell out for the bail applicant that,
“A woman may be having easy virtue but that does not mean that all and sundry can take advantage of this fact. She has right to say no.”
However, the same year also witnessed the Delhi High Court blurring the lines of what would amount to legal consent in rape, while it afforded rape-accused film-maker Mahmood Farooqui the “benefit of doubt”.
The judge allowed the film-maker bail, while expressing reservations about the case of the prosecutrix, given that both parties were familiar with each other. On this premise, Justice Ashutosh Kumar determined that when it comes to sex, it would be “really difficult” to decipher whether a “feeble no” was “actually a denial of consent.”
The reluctance of the Court to stand by an objective standard for consent was also evident in the Supreme Court’s subsequent dismissal of the appealmade against the Delhi High Court verdict. The Apex Court repeatedly questioned counsel for the prosecutrix/appellant, Vrinda Grover, on aspects such as the number of drinks the prosecutrix consumed with the accused, the nature of their relationship and the number of times the two met.
Reading between the lines, one can safely conclude that ‘No’ does not mean ‘No’ as of yet, so far as Indian law is concerned.
However, the Delhi High Court was brave enough to venture an opinion that the “…mere silence [of a victim] cannot be taken as proof of consensual sexual relations”.
Balancing the Scales
In the meanwhile, mixed reactions have emerged following the Supreme Court’s decision to issue guidelines aimed at preventing the misuse of Section 498A of the IPC. This provision deals with cruelty to married women at the hands of her marital family.
In a move viewed by some as a step backwards in the protection of women, the Court also directed that no arrest will be made in a case under Section 498A unless a report is submitted by a Family Welfare Committee tasked with vetting domestic violence cases.
This ruling prompted women’s rights groups to write to then Chief Justice of India JS Khehar, requesting that the case be reviewed, raising concerns that,
“…the entire judgment proceeds on the basis that women are liars and file false cases under Section 498A IPC not only against their husbands, but also against the husband’s family members…
… The proposed Family Welfare Committees will discourage the reporting of true cases and minimize the injustice suffered on account of domestic violence by women…”
The Supreme Court was not alone in expressing concern for the possible misuse of laws intended for the protection of women. In August last year, Justice Pratibha Rani of the Delhi High Court observed that in some cases, women use the rape laws as a “weapon for vengeance and personal vendetta”. The judge remarked,
“They tend to convert such consensual acts as an incident of rape may be out of anger and frustration thereby defeating the very purpose of the provision. This requires a clear demarcation between the rape and consensual sex especially in the case where complaint is that consent was given on promise to marry.”
In another move that is likely to provoke some debate, the Apex Court has also issued notice in a petition calling for an amendment to Indian adultery laws. As it stands, Section 497 of the IPC only penalises men for adultery. In no circumstance can a woman be found culpable. The Court has queried whether,
“…when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband.”
The Court also further noted that the seemingly archaic provision effectively views women as chattel by creating a dent on the individual independent identity of a woman.
While on the topic of respecting the independence of women, the Apex Court today delivered its verdict in the Hadiya case. A constant theme throughout the case is to what extent the Court can invoke its parens patriae role in interfering with the decisions of an adult woman.
The pertinent question, as posed by Senior Advocate Indira Jaising, was whether a man in Hadiya’s position would have been meted out the same patriarchal treatment.
Throughout the course of the hearings, the Court appeared to be conscious of the bad precedent it would be setting, if it were to casually interfere with the personal decisions of a 24-year old woman. And finally, today, after eight months in limbo, Hadiya’s marriage has been restored, with the Kerala High Court judgment being set aside.
Towards Perfect Equality
The past year has also witnessed some concrete wins for women, as the courts delved into Constitutional questions touching upon women’s rights.
Following extensive deliberation, a Constitution Bench of the Supreme Court struck down the practice of instant Triple Talaq (talaq-e-bidaat) as unconstitutional.
Last October, the Supreme Court Bench of Justices Madan B Lokur and Deepak Gupta read down Exception 2 to Section 375 of the IPC. As a result, sexual intercourse between a man and his wife would amount to rape if the wife is less than 18 years of age.
In other words, child marital rape is no longer protected. The question of whether Marital Rape itself should be struck down is still pending before the Delhi High Court.
In another significant decision, the Delhi High Court stood up for women’s rights as it emphasised that the Constitution “irreproachably, does not permit discrimination against women“, although affirmative action in their interest is permitted.
The Court further noted that it was not sufficient to say that there was no intentional discrimination against women, given the historical discrimination faced by them.
Last month, the Delhi High Court also paved the way for women to join the Territorial Army. While doing so, the Court reflected on the following words of John Stuart Mill concerning gender equality:
“The subordination of one sex to the other ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.”
While this is far from the reality in India, some of the decisions noted above have added to the momentum required to draw closer to Mill’s ideal of equality.