The Indian courts are not confined to merely being the final arbiter of disputes, but also as a frontier protector of the Constitution. The Supreme Court and the High Courts have taken up the responsibility of intervening and correcting the inequities based on gender, caste, and class.
This International Women’s day we will celebrate the much-applauded judgments of the Supreme Court and various High Courts that have not only empowered women but also brought a change to the mindset of various classes of society. Let us have a look at some of the landmark decisions of 2020 on gender justice:
- Absolute exclusion of women from Command Appointments in the Army is Illegal. [Supreme Court]
In a landmark judgment of Secretary, Ministry of Defence v. Babita Puniya & Ors. on gender equality, the Supreme Court held that in Indian the Women Short Service Commission Officers are entitled to Permanent Commission at par with male counterparts in all the ten streams where the Union Government has decided to grant Short Service Commission to women.
It further held that the inherent physiological difference between men and women lies deeply on the rooted orthodox and constitutionally flawed notion that women are the weaker sex and may not undertake tasks that are too arduous for them. It further added that the assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers.
In another landmark judgment of Union of India v. Lt. Cdr Annie Nagaraja, the court held that women officers in the Navy are also entitled to Permanent Commission at par with men.
- Daughters have coparcenary rights irrespective of whether the father was alive or not when Hindu Succession (Amendment) Act, 2005 came into force. [Supreme Court]
In the case of Vineeta Sharma v. Rakesh Shama, the bench comprising of Justices Arun Mishra, S. Abdul Nazeer and MR Shah held that since the right of the coparcenary is by birth, the father coparcener doesn’t need to be living as of 9.9.2005.
The judgment laid down that the Daughters must be given equal rights as sons as the daughters remains a loving daughter throughout life and remains a coparcener throughout life, irrespective of whether her father is alive or not.
The bench overruled the contrary observation made in the case of Prakash v. Phulavati and Mangammal v. TB Raju.
- The wife is also entitled to claim the right of residence which belongs to the relatives of the husband. [Supreme Court]
The bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed in Satish Chandra Ahuja v. Sneha Ahuja that the wife is also entitled to claim a right to residence in a shared household belonging to relatives of the husband.
Supreme Court overruled the judgment given in S.R. Batra Vs. Taruna Batra in which it was held that wife is only entitled to claim a right to residence in a shared household and a shared household would only mean the house belonging to or taken on rent by the husband or the house which belongs to the joint family of which the husband is a member.
In the present case, the court ruled that an aggrieved person who has lived in a domestic relationship along with the relatives of the husband shall become a shared household, there will be several shared households, which was never contemplated by the legislative scheme. The entire Scheme of the Act is to provide immediate relief to the aggrieved person concerning the shared household where the aggrieved person lives or has lived.
- The reproductive choice of a woman has been recognised as a fundamental right. [ Rajasthan High Court]
Rajasthan High Court while deciding the case of termination of pregnancy of a minor rape victim held that the infringement of the fundamental right to life of the victim heavily outweighs the right to life of the child in the womb and further laid down directions that minor rape victims are not denied the right to terminate unwanted pregnancies.
- Two Finger Test violates the victim’s right to privacy, dignity and integrity. [Gujrat High Court]
Gujrat High Court while deciding an appeal in State of Gujarat v. Rameshchandra Rambhai Panchal, held that the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.
The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is proof of her being a virgin.
The court held that the two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity, and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto, give rise to a presumption of consent.
- Himachal Pradesh High Court read down policy excluding married daughters from compassionate appointment.
While allowing a married daughter’s plea seeking compassionate appointment in her deceased father’s place the Himachal High Court held that the state cannot act in a misogynist way.
The court that if the marital status of a son does not make any difference in the eyes of law, then it is difficult to think, how the marital status of a daughter makes such a huge difference in her eligibility. Marriage does not have proximate nexus with identity and even after marriage, a daughter continues to be a daughter. Therefore, if a married son has the right to compassionate appointment, then a married daughter also stands on the same footing and her exclusion does not have any plausible basis or logic, so her exclusion has no justifiable criteria.
- The role of a woman as a ‘housewife’ in the family is the most challenging and important role which deserves much appreciation but is least appreciated. [Bombay High Court]
In the case of Rambhau & Ors. v. Shivlal & Ors the Bombay High Court granted over Rs.8 lakh towards compensation to the family of a deceased 45-year-old woman who succumbed to her injuries after the driver of the jeep she was travelling in violently dashed into a tree. While setting aside Motor Accident Tribunal’s order rejecting the family’s claim, the bench observed that the role of a woman as a housewife is the most challenging and important in a family.
Talking about the pivotal role of a housewife, the court laid down –
“She holds the family together. She is a pillar of support for her husband, a guiding light for her child/children and a harbour for the family’s elderly. She works round-the-clock without a single day off, no matter whether she is working or not. However, the work she does go unacknowledged and is not considered as a ‘job’. It is an impossible task to count the services she renders which are consisting of hundreds of components that go into the functioning of a household itself, in monetary terms.”
- Inadequate Menstrual Hygiene Management options would be a major barrier to education, with many adolescent girls dropping out due to lack of access to sanitation facilities. [Jammu and Kashmir High Court]
While talking about the right to education under Article 21A of the Constitution of India, the Jammu and Kashmir High Court in Court on its motion v. Government of India & Ors., remarked that illiteracy about such an important subject will lead to unhygienic practices that have serious health consequences, and increased obstinacy, which will lead to an eventual dropping out from schools.
The High Court directed the State that it is its responsibility to educate children about menstrual health and hygiene and make sanitary products accessible to all adolescents. If necessary, such products being made available at subsidized rates or even free of cost either within the school or in collaboration with local health centres/ clinics.
- There is no room for any laches or laxity while investigating a heinous crime against women and children, nor any laches can be tolerated. [Jharkhand High Court]
In the case of Chandrika Yadav v. the State of Jharkhand, the Bench of Justice Ananda Sen reprimanded the state police for its sloppy investigation in a case where a woman along with her three minor children died because of extensive burn injuries and the allegation is against in-laws, of burning her along with her minor children.
Court held that the police, who are investigating a heinous offence, like the one, which is in hand, has to act professionally with the utmost sense of responsibility while investigating the offence. There is no room for any laches or laxity while investigating a heinous crime against women and children, nor any laches can be tolerated. The margin of error is zero.
- Denial of extension of tenure to contract staff on grounds of pregnancy amounts to penalizing a woman for electing to become a mother. [Delhi High Court]
In Manisha Priyadarshani v. Aurobindo College- Evening & Ors, the Delhi High Court has quashed the decision of a private college to refuse renewal of the service contract of an ad-hoc Professor who had opted to take maternity leave.
The court remarked that this is violative of the basic principle of equality in the eyes of law. It would also tantamount to depriving her of the protection assured under Article 21 of the Constitution of India of her right to employment and protection of her reproductive rights as a woman. Such a consequence is therefore unacceptable and goes against the very grain of the equality principles enshrined in Articles 14 and 16.
Guest Author: Samiksha Chaturvedi
Samiksha Chaturvedi is a Graduate from RMLNLU, Lucknow and currently pursuing LLM from Amity University, Noida.