CHAPTER - IV

EMPOWERMENT OF WOMEN : ROLE OF INDIAN

JUDICIARY

A. Introduction

Justice is an attribute of human conduct. Law, as a social

engineering, is to remedy existing imbalarxes, as a vehicle to
establish an egalitarian social order in a Socialist, Secular
Republic India. The Upanishad says that, "Let all be happy and
healthy, let all be blessed with happiness and let none be
unhappy." Bhagwadgita preaches through Yudhishthira that: "I do
not long for kingdom, heaven or rebirth, but I wish to alleviate the
sufferings of the unfortunate." Welfare State is a Rubicon between
unbridled individualism and communism. All human rights are
derived from the dignity of the person and his inherent worth.
Fundamental Rights and Directive Principles of the Constitution
have fused in them as fundamental human rights as indivisible
and interdependent.!

Justice is universally considered to be a function of the

sovereign. Specialized institutions such as courts were not present
in early societies for the setdement of disputes. In fact, the earliest
modes of justice took the form of 'revenge' which was a private
matter. In course of time, kings acquired the powers to maintain
law and order and likewise assumed the responsibility of

See, Samatha v. State of A.P.. (1997) 8 SCC 191 p. 244.

 181

punishing those who committed crimes against what the British

called the Icing's peace'. With the emergence and consolidation of
state power, the administration of justice came to be regarded as
exclusively falling within the domain of the state.2

The administration of justice is the primary task of the

judiciary, thus one of the essential organs of the state. J.S. Verma
(former CJI) rightly said that

The great Roman Statesman, Cicero said "The chief

law is the pUblic good." These words summarise the
entire reasorifor the eritrustment of certain powers to
each one us [of the organs] in the three separate wings
ofgovemCince; So thatiri'the discharge of the our duty,
[the judiciary] we always hear in mind that justice is
to be administered according to law and that the chief
law is public good. Therefore, for the purpose of proper
implementation of the rule of law, the interpretation
we make of the laws has to be in keeping with this
basic postulate which must never be forgotten by the
judiciary. Addison said: "Perfect justice is the
attributable of the divine but to do so to the best of our
ability is the glory of man".^

The laws enacted by the Government of India have direct and

indirect bearing on the status of women. Since the enactment of
the laws women have been approaching the judiciary to safeguard
their rights and interests. They have been seeking justice against
social discrimination, violence, rape, dowry, sexual harassment at

2 See, Punam S. Khanna, "The Indian Judicial System", Kamala Sankaran and Ujjwal
Kumar Singh (eds.) Towards Legal Literacy, (2008), p. 27.
3 See, J.S. Verma, New Dimensions ofJustice,( 2000), p. \2.
 182

work places and immoral trafficking etc. Indian judiciary has been
very sensitive to women and women related issues. It has showen
great interest in discharging cases concerning women. The Apex
Court of India took special interest in discharging its legal and
constitutional obligations and safeguarding the interests of women
in changing situation and societal demands.

India has a unified judicial system with the Supreme Court

at its apex, unlike the United States which has a dual system of
courts."* India has a hierarchy of courts in a pyrajnid-like structure
with the Supreme Court standing like a sentinel on the qui vive (on
guard/alert) a t the apex. Below the Supreme Court are th^ High
Courts in the states vand below the High; Courts is a vast network of
subordinate courts.

The Indian Judiciary in the last 60 years of its existence has

made long lasting contributions to the system of governance that
has impacted the life of the people and the nation. In many ways, it
has impacted the nature, scope and processes of public
governance and can claim credit for expanding the meaning of the
Constitution in favour of different segments, especially the
oppressed section, of the society. It has strengthened Indian
federation, catalyzed goal achievement, deepened democracy and
defended people against excesses of the State. It has acted as a
promoter of peace, cordiality and balance and coordination
between different organs of the government. At one time it was
thought that the role of judiciary is only to interpret the laws and

The United States has a federal legal system. There is a judicial hierarchy at the state
level, which has a State Supreme Court at its top. To deal with the matter relating to
federal law, there is a separate hierarchy of courts. The US Supreme Court is the highest
couti in this framework. There is a clear cut separation in the Jurisdiction of the each
system, with-the US Supreme Court interfering with the state legal system only in
extreme circumstances.
 183

the regulations and provide judgements exclusively from the legal

point of view. This perspective has undergone a sea change in the
recent times.

Responding to the role expectations, the supreme court has

given both a technical and expansive interpretation of the
fundamental rights, and has issued various directions and
guidelines to uphold human dignity and human rights of the
people of India and more so of the weaker sections such as women,
children, and etc. etc. The courts have ' been sensitive ' t(j the
changing socio-cultural ^..v.* po;i:ico jc^n'omic milieu of the
country. Tne growing ^uWilc GL^.^ori: to the' activ'^t role rf the
judiciary has further strengthc:ri8a ....e poi^ilibn •""pre-eminence
that the judiciary has come to occupy among the three organs of
the government. It has, unlike the past, been entertaining a
number of petitions, which involve, apart from legal, issues that
relate to the administration, governance and policy.

Many of the judicial judgements are known for the clear

interest of the judiciary in the processes and practices of pursuing
the goals of sustainable human development and creating an
enabling environment. In. this endeavour, the judiciary has not
confined itself to interpreting the law and the constitution only. If it
found laxity on the part of the Executive to implement the
judgment, judiciary has also not hesitated to direct and monitor
the Executive to not only submit the action plan but also submit
the progress report of the action taken and the outcomes of that
action.

In this chapter, researcher has made an attempt to analysis

the working of judiciary especially in the context of empowerment
 184

of women. Since 1980's the functioning of judiciary is under a

severe criticism from a section which include legislation, executive
and even researchers due to the developments which took place
under the banner of 'Public Interest Litigation' (hereinafter PIL),
whereas their counterparts are of the view that there is need to
prevent misuse of it and not to criticise it. It is worth mentioning
here that the PIL has played a significant role in the administration
of justice in India not only on women relating issues but on all
aspects relating to socio-economic transformations, the Apex Court
adopted this practice long back. In Mumbai Kamgar Sabha v.
Abdulbhai Faizullabhai,^

"The courts exercising their power of judicial review

found to their dismay that the poorest of the poor, the
depraved (sic), the illiterate, the urban and rural
unorganised labour sector, women, children, those
handicapped by 'ignorance, indigence and illiteracy'
and other downtrodden persons have either no access
to justice or had been denied justice. A new branch of
proceedings known as 'social action litigation' or 'public
interest litigation' was evolved with a view to render
complete justice to the aforementioned classes of
persons. It expanded its wings in course of time. The
courts in pro bono publico granted relief to inmates of
prisons, provided legal aid, directed speedy trials,
maintenance of human dignity and covered several
other areas. Representative actions, pro bono publico
and test litigations were entertained in keeping with the

(1976) 3 s e c 832. Also see: Indian Banks'Assn. v. Devkala Consultancy Sen-ice (2004)
11 sec 1.
 185

current accent on justice to the common man and a

necessary disincentive to those who wish to bypass the
real issues on merits by suspect reliance on peripheral
procedural shortcomings".

B. Approaches of Judiciary towards Women

Broadly speaking, the approach of the Indian judiciary can

be categorised in two phases. The first phase refers to the pre-
emergency period of 1950 to 1977 followed by a post emergency
role during the period 1977 tiH the present day. The first phase is
characterized by a technical, conservative and traditional approach
of the judiciary on the one hand and deference to the will of the
legislature on the other whereas the second era is characterized by
a new role mantled by the courts to venture into the area of
administration, governance and policy. The courts in this period
went beyond the literal meanings of the provisions of the
Constitution of India to take up the spirit of the Constitution into
account while interpreting the law of the land. To explain further in
simple words, the judges can be divided into categories based on
their approaches i.e.: those who were ardently in favour of
defending the Constitution strictly in terms of the letter of the
Constitution and those who were committed to change or those
who followed the principle of balance between law and
development.

The rigid view of the judiciary results into many

amendments in the constitution including addition of the Ninth
Schedule to exclude the judiciary from the power of judicial review.
Judiciary was seen as taking an elitist view and ignoring the
common cause. The egalitarian philosophy contained in the
 186

Preamble and Directive Principles of State Policy were said to have

been ignored by it. In other words, the judiciary's role was
perceived as individualistic and not communitarian.

This situation prevailed till 1967 almost uninterrupted when

the judiciary changed its stand and interpreted Article 13(2) in a
famous Golak Nath case^ to say that parliament had right to
amend the constitution except the fundamental rights. Thus
judiciary engaged itself in limiting the legislative role of the
parliament. By this approach, the judiciary, one could infer,
sought to play the legislative role itself. This is what was implied in
the following observation made by Justice K. Subba Rao:

"...Articles 32, 141 and 142 are couched in such wide

and elastic terms as to enable this court to formulate
legal doctrines to meet the legal ends of justice... To
deny this power to the Supreme Court on the basis of
some outmoded theory that the court only finds the law
but does not make it is to make ineffective the powerful
instrument of justice placed in the hands of the highest
judiciary of this country".

Crimes against women, questions of women empowerment

and rights of the child and the response of the executive to them
have drawn judiciary into field of both law making and law
implementation. This new role being played by the judiciary has
been enabled and supported by the evolution of a new practice
known as 'Public Interest Litigation' (PIL) or 'Social Action
Litigation' in the country in the late 20th century India. The courts
have taken a different view of locus standi. Earlier only those

See, I.e. Golak Nath v. State of Punjab, AIR 1967 SC 1643^

 187

person or persons could challenge the law or the policy of the

government who were directly affected by that law/policy. In this
scheme, the poor could not have access to justice because of the
lack of required resources for the purpose. PIL has come to mean a
mode of enabling the marginalized to have access to justice and a
method to save them from exploitation and discrimination. In S P
Gupta V. Union of IndiaJ the court explained the concept as
follows:

"Any act causing a legal wrong/ injury to a person/

persons by reason of violation of any constitutional /
legal right or any burden is imposed in contravention of
any constitutional / legal provision or without authority
of law or any such legal wrong or legal injury or illegal
burden is threatened and such person or group of
persons by reasons of poverty, helplessness, or
disability or socially or economically disadvantaged
position unable to approach the court for relief then any
member of the public can maintain an application for an
appropriate direction order or writ in the high court
under Art. 226 or to the Supreme Court under Art. 32 if
there is a violation of fundamental rights of such
persons/ class of persons".

In the conte.xt of gender justice and equality, the

judiciary has attempted to venture into the critical role of a
social reformer by upholding the rights of women and
especially of the victims of subordination, suppression, and
subjugation Judiciary has played this role both as a court of

1981(Supp)SCC87.
 188

judicial restraint and as a progressive, dynamic, creative and

proactive institution for social, economic and cultural
transformation. However, the contribution made by the
judiciary to the improvement of status of women, protection
of and access to fundamental rights of women and provision
of conditions of dignity of life can be discerned from a
number of decisions delivered while interpreting laws and
the Constitution.8

(a) Role of Judiciary in Empowerment of Women

Discrimination de-empowers because discrimination in any

form affects the human capabilities. Any factor that negates the
human capability has to be reckoned as a factor of de-
empowerment. It is undisputed fact that discrimination in matters
pertaining to personal status to which humans assign utmost
importance, de-empowers an individual from leading a dignified life
befitting that of a human being. Therefore, every bit of justice that
restores the lost dignity is an instrument of empowerment. In
Indian democracy, the judiciary has played a significant role in
restoring the justice in all cases of discriminations against women
since independence.^

Upliftment and development of women has been at the

centre of constitutional mechanism as well as of the politicians, the
media, the civil society institutions and the judiciary. Various
provisions of the Constitution like right to equality contained in the
Articles 14, 15 and 15(3), 42, 45, 46 and the provision relating to

8 For more detail see C. B. Muthamma v. U.O.I, AIR 1979 SC 1868; Air India v. Nargesh
Mirza, AIR 1981 SC 1829, and Vishaka v State of Rajasthan, AIR 1997 SC 3011.
9 'Property Rights of Women : Proposed Reform under Hindu Law', the Law Commission
of India Report 174, May 2000.
 189

33.3 percent reservation for women in the offices and the

membership of the rural and urban local bodies aim at achieving
the goals of empowerment, welfare and development on equal
footing of women. Rural and urban development schemes and
programs enacted and implemented through various development
plans and women and child specific programs in particular since
independence were indicative of the political commitment to bring
about change in the social and economic status of women. The
critical social change through social equality between man and
woman was also attempted through social reform laws so as to
remove social disabilities suffered by Hindu women in matters like
marriage, divorce, succession, adoption and guardianship. The
judiciary compensated for the inadequacies of these laws. At the
same time, political and electoral compulsions prevented the
political masters from attempting similar reforms in the personal
laws of the Muslim and Christian communities and they continued
to suffer discrimination and injustice, despite a clear constitutional
mandate under Article 44 to enact uniform civil code across the
geography and communities of India.

Courts have played a significant role during the last five

decades with the support of the liberal provision of the
Constitution, with the aid of a series of pro-women international
human rights instruments and an increasingly assertive women's
movement within and outside the country. The complaint seems to
be that more could have been done if the judges were so inclined.
Furthermore, it is argued that the judicial system as a whole did
noL change enough to absorb the emerging standards of equity and
equality vis-a-vis women with the result the bulk of women
approaching the subordinate courts neither receive equal
 190

treatment nor are able to access the full benefit of the principle of
equal justice under law." However, one thing shall have to be
clearly borne in mind i.e. the role of the judiciary, in the
vindication of gender justice. According to Justice V.R. Krishna
Iyer,

"case-law, creative, imaginative and gender-friendly,

has its logic and limitation. Judges cannot make law
but only interpret it and decide specific cases and
controversies within defined bounds although in that
process they do make law interstitially. But legislation
is essentially a wider function covering vaster spaces
and free to weave fabrics offundamental mutation. So
it is substantive codification, radical in transfonnation
of the social order, that we need, an avant-garde
operation Parliament must perform. Magnificently as
the judiciary has acted, they have not and could not
usurp legislative functions." ^^

To protect the women rights, the Apex Court has interpreted

the law according to the current societal standards especially since
the inception of the PIL. The Court acknowledged that the law
when enacted, in spite of the best efforts and capacity of the
legislators,'cannot visualise all situations in future to which that
law requires application. New situations develop and the law must
be interpreted for the purpose of application to them, for finding

10 Further, he added that it requires a lot of research to prove or disprove this proposition.
As such, any assessment can only be provisional and tentative. It serves no purpose to
apportion the blame for the status of women today on different wings of government on
society at large. See: N.R. Madhava Menon, 'Gender Justice and Judiciary. An
Assessment', Nomita Aggarwal (Complied), All India Meeting of Chief Justice of High
Courts on Women Empowerment vis-a-vis Legislation and Judicial Decisions held on 11
December 2004 National Commission for Women, Delhi.
 191

solution to the new problems J ^ The Apex Court in Madhu Kishwar

V. State ofBihar^^, quoted from the WTO report of 1980:

". . . . Half of the Indian population too are women.

Women have always been discriminated against and
have suffered and are suffering discrimination on
silence. Self sacrifice and self denial are their nobility
and fortitude and yet they have been subjected to all
inequalities, indignities, inequality and discrimination

Landmark decisions delivered by the Indian judiciary, in

particular during the last two decades, bear testimony to the fact
that judges cannot be accused of gender injustice. They have
shown the requisite sensitivity expected of them. However, as
Justice R.C. Lahoti, former CJI rightly pointed out that "such
sensitivity is individual and needs to be institutionalised".

Even though it is very difficult to distinguish the courts

verdicts on the grounds of social, economical and political
empowerment of women but researcher has made an earnest
attempt to discuss judgement of the apex court given on the
various issues relating to women. While discussing, researcher
tried to discuss them under two broad heading and many more
sub-headings so that a clear view of the apex court can be
observed relating to empowerment of women.

11 See,G.B. Reddy, 'Role of .ludiciary in Protection of Human Rights of Women in India',

All India Reporter, Vol. 86, July 1999, pp. 148-152.
12 (1996) 5 sec 125.
 192

(i) Socio-economic Empowerment of Women and Judicial

Attitude
The legislature has passed many laws for the welfare of the
women particularly after the post-emergency period. However,
these legislations are not sufficient in themselves without there
wider interpretation which can be done only by the judiciary. The
Apex Court, took a lead in protecting the rights of the individual
through PIL or even taking suo moto actions. It has played a much
bigger role in protecting the status of Indian women through its
judgements which ultimately becomes law of the land and
compelled the government to change its approach from welfare to
empowerment.

In Gaurav Jain v. Union of India,^^ the HonT^le, Supreme

Court has laid down that socio-economic empowerment of women
is the constitutional duty of the state and further observed that:

"Society is responsible for a woman's becoming victim of

circum.stances. The society should make reparation to
prevent trafficking in women, rescue them from red-light
areas and other areas in which the wom.en are driven
or trapped in prostitution. Their rehabilitation by socio-
economic empowerment and justice, is the constitutional
duty of the State. Their economic empowennent and
social justice with dignity of person, are the
fundamental rights and the Court and the Government
should positively endeavour to ensure them.. The State
in a democratic polity includes its three constitutional
organs - the Legislature, the Executive and the

13 (1997) 8 sec 114 p 156.

 193

Judiciary. The Legislature has already done its duty.

The Executive and the Judiciary are required to act in
union to ensure enforcement offundamental and human
rights of the fallen women. I am also conscious that the
Union of India as well as the State Governments are
sensitive to the conscience of their constitutional duty
under Article 23 and are desirous of having prostitution
eradicated from the root with the aid of the FTP Act, IPC
and other appropriate legislative or executive actions.
Sequential rehabilitation of the fallen women rescued
from the red-light areas and other areas requires
enforcement."

In present study, a modest attempt has been made to

distinguish the change of judiciary's approach towards women
relating issues, which was earlier strict to written words in the
•laws rather then the spirit of them. Under various headings,
particularly socio-economic issues relating to women, the judicial
approach is discussed. One must remember that even though in
the beginning the apex court has not used the term empowerment
but the court has interpreted the law in its spirit and also
recognise the need to treat women as equal in all spheres of life.
Broadly speaking this is journey where first, the women's rights
were accepted to emancipate the women from the age old practices
which were based on the concept of patriarchal society and
secondly, much later the court recognised the need to empower the
women while interpreting the various legislations.

The attitude of Indian judiciary discussed head wise as

under:
 194

(1) Bigamous Marriages

In Bhau Rao v State of Maharashtra,^'* the court said that

any person entering a second marriage while the first marriage was
subsisting could be held guilty if the marriage was celebrated with
proper ceremonies and in due form i.e. properly solemnized. The
Court further observed that:

The word 'solemnise' means in connection with a

marriage 'to celebrate the marriage with proper
ceremonies and in due form' according to the Shorter
Oxford Dictionary. It follows, therefore, that unless the
marriage is 'celebrated or performed with proper
ceremonies and in due form' it cannot be said to be
'solemnised'. It is therefore essential, for the purpose of
section 17 of the Act that the marriage to which section
494 IPC applies on account of the provision of the Act
should have been celebrated with proper ceremonies
and in due form.^^

This judgement of the court was in fact regressive in so far

as it sealed the fate of the hapless first wife. The man married
second time willfully avoiding the rituals and ceremonies to abuse
the law. Such an interpretation does justice neither to the first wife
nor to the second. Both women suffer. The second because she is
not entitled to the share in the property of the person she married.
The men exploit vulnerability of women who marry them because

14 AIR 1965 SC 1564. Also see Hindu Marriage Act, 1955 and Indian Penal Code, 1860
section 494.
15 /6/a'., p. 1565.
 195

of poverty, pressure of the parents or deception committed by the

men. All in all the Supreme Court elbowed out the policy and
purpose of the Act, in preference to the meaning of the word
'solemnize' given in the Shorter Oxford Dictionary.

In a subsequent decision in Priya Bala v Suresh Chandra,^^

the court went a step further and held that even an admission
made by the husband that he took a second wife in a civil case will
not be sufficient evidence in a case of bigamy and that the
prosecution must discharge its burden that the marriage had been
'solemnized'. Later the Supreme Court in Gopal Lai v State of
Rajasthan,^'^ reiterated the above position.

The result is that in most cases the (male) accused in bigamy

cases got scot-free. The regressive interpretation put by the apex
court on section 17 of the HMA without concern for the social
objectives of the provision has resulted in the continuation of
bigamy among the Hindus, whether overtly or covertly. The offence
is not fully cognizable and the economic dependence of the first
wife and children on the husband restrains the aggrieved wife from
launching a prosecution. If that be not the case, the existing law
under HMA is manipulated by some, and yet others resort to fake
conversions to Islam. For this state of affairs the judges must pass
the buck to the legislatures on the simplistic reasoning that penal
provisions must be strictly construed.

In Yamunabai v Anantrao,^^ the Supreme Court considered

this aspect under Section 125 of the Code of Criminal Procedure,
1973 and held that the second wife was not entitled to

16 AIR 1971 SC 1153.

17 AIR 1979 SC 713.
18 AIR 1988 SC 644.
 196

maintenance as the marriage was void. Commented on the

judgment in question, Jaya Sagade in the following words,

"It is respectfully submitted that the Supreme Court

has relied on the letter of the law than its spirit and
legislative intent. It has failed to realize the social
realities and plight of such second wives."^^

However, on the question whether a Hindu Man could enter into a

second marriage after converting to Islam while the first marriage
is in subsistence, the court has adjudicated in the negative and
insisted in prosecution under section 17 of the Hindu Marriage Act
read with section 494 of the Indian Penal Code. That a Hindu can
not be allowed to exploit religious freedom to marry another women
cover after he converts to Islam was categorically decided by the
Supreme Court in Lilly Thomas v. Union of India,^^ where Supreme
Court held that

"Religion, faith or devotion are not easily inter

changeable. If a person beings to have adopted
another religion just for some worldly gain or benefit, it
would be religious bigotry, looked at firm this angle, a
person who mockingly adopts another religion where
plurality of marriage is permitted so as to resources
the previous marriage and desert the wife, he can not
be permitted to take advantage of this exploitation as
religion is not a commodity to be exploited. The
institution of marriage under every personal law is a
sacred institution; under Hindu law marriage is a
sacrament both has to be preserved."

19 See, Jaya Sagade, Law of Maintenance: An Empirical Study^ (1996), p. 83.

20 AIR 2000 SC 1650.
 197

(2) Violence Issues

The right to life include the right to dignity. Through its five
decades of existence, the Supreme Court has had occasion to
address this important issue. We shall pause in our odyssey for a
moment and take a quick look at how the apex court has dealt
with violence and dignity issues affecting women.

It was in the cradle of the civil liberties consciousness, that

the Supreme Court's decision in Mathura case^i ignited the first
indigenous legal battle for gender justice. Mathura, a 16 year-old
tribal girl was raped by two policemen within the premises of a
police station. The Sessions Court acquitted the policemen on the
ground that since Mathura had eloped with her boyfriend she was
'habituated to sexual intercourse' and hence she could not be
raped. The court further held that Mathura was of 'loose morals'
and that the sexual intercourse was with her consent. The high
court convicted the policemen and held that mere passive or
helpless surrender induced by threats or fear cannot be equated
with desire or will and hence cannot be deemed as consent. The
Supreme Court stepped in to set aside the conviction and
exonerate the police stating that since Mathura has not raised any
alarm and since there were no visible marks of injury on her body,
allegations of rape were untrue. As such, the basis was that there
was insufficient evidence that the prosecutrix resisted the sexual
intercourse. The review petition that was filed was dismissed and
the judgement remains to this day as testimony to the insensitivity
to the rights of women.

21 See, Tukaram v. Stale of Maharashtra (1979) 2 SCC 143.

 198

This decision generated heated discussion. Law Commission

had eariier made certain recommendation in its 42^1^ Report in
1971; apparently nothing was done so far as sexual offences were
concerned. The Government, keeping in view the discussion,
requested the Law Commission to give another report in this
regard and the Commission did it in its 84^^ report in 1980. Some
of its recommendations were accepted and Criminal Law
Amendment Act, 1983 was passed. This amendment has
substituted Section 375 and 376 in IPC in place of old ones, and
further has inserted Section 376A to 376D22 in IPC. It has further
amended the Evidence Act by inserting a new Section 114A23 that
has shifted the burden on the accused in rape case in certain
circumstances. It has also amended Section 327 of the Cr.P.C. by
inserting sub-section (2) and (3) which gives power to the Court to
conduct rape case trial in camera. The Court can also prohibit any
person to print or publish any matter in relation to proceeding in
the Court without its previous permission. Section 228-A2'* was
also inserted in the IPC providing punishment for disclosing
identity of the rape victim.25

Unfortunately the court has on many occasion approached

rape as man's uncontrollable lust rather than as an act of sexual
violence against women. In Phul Singh v State of Haryana?^, the

22 Section 376A, intercourse by a man with his wife during the separation, 376B,
intercourse by public servant with a woman in his custody, 376C, intercourse by
superintendent of Jail, remand home, etc., 376D, intercourse by any member of the
management or staff of a hospital with any woman in that Hospital.
23 Presumption as to absence of consent of woman for sexual intercourse.
24 Disclosure of identity of the victim of certain offence etc.
25 Two more Law Commission Reports namely 156th and 172nd regarding rape for
consideration of the Government.
26 (1979) 4 s e c 413.
 199

sentence for the rape of a young girl by her cousin was reduced on
the basis that:

Young overpowered by sex stress in excess. Hyper

sexed Homo sapiens cannot be rehabilitated by
humiliating or harsh treatment. As part of [the] curative
course for the prisoner should be designed to rid his
aphrodisiac overflow and restore him into safe
citizenship. [The] accused in barely 22 years. He has a
young wife and farm to look after. Given correctional
course his erotic aberrations may wither away. Taking
an overall view of the criminal and familial factors
involved, the societal proneness to sex and people's
abhorrence of released prisoners, sentence is reduced.

Similarly, in another case, the Supreme Court held with

regard to uncorroborated evidence that it is essential to consider
human psychology and behavioural probability when assessing the
credibility of the victim's version.27

However, despite such obstacles, post Mathura the Court

has gradually begun to demonstrate remarkable sensitivity to
issues of sexual violence against women. A case in point was
Bharwada Bhogibhai Hrijibhai v State of Gujarat,'^^ where the Court
held that in the Indian context, refusal to act on the testimony of
the victim of sexual assault in the absence of corroboration is
'adding insult to injury'. The Court went on to ask: 'Why should
the evidence of the girls or a woman who complains of rape or
sexual molestation be viewed with the aid of spectacles tinged with

27 See, Krishnalal v. Slate of Haryana{]9W) 3 SCC 159.

28 (1983)2 SCC 217.
 200

doubt or disbelief? To do so is to justify the charge of male

chauvinism in a male dominated society.'

There have also been setbacks such as the controversial

Suman Rani Rape case^^ where the Supreme Court reduced the
mandatory minimum sentence of ten years imposed on two police
officers found guilty of raping a young woman on the basis of the
'peculiar facts and circumstances of the case coupled with the
conduct of the victim girl ...'. these 'peculiar facts' referred to the
argument of the accused that the victim was a woman of
questionable character and easy virtue with lewd and lascivious
behaviour.30

To the apex court's credit, the march of the law of rape in the
past two decades has been spectacular. The Court has gradually
come around to the view that corroboration of the evidence of the
victim of rape was not essential.^i Ahmadi, J, emphatically stated:

To insist on corroboration except in rarest of rare cases

is to equate a woman who is victim of lust of another
with an accomplice to a crime and thereby insult
wom.anhood. It would be adding insult to injury to tell a
woman that her story of woe will not be believed unless
it is corroborated in material particulars as in the case
of an accomplice to a crime.

The Court has sometimes taken a practical and pragmatic

view of the complex issues that arise in the context of rape, such

29 See, Premchand\. State ofHaryana (1989) Supp 1 SCC 286.

30 Interestingly, the Supreme Court has never addressed the question of the constitutionality
of section 155(4) of the Indian Evidence Act, 1872, which enables the previous sexual
history of the prosecutrix to be brought in evidence to impeach her testimony.
31See, Stale of Maharashtra v. Chandraprakash KeM'alchand Jain, (1990) 1 SCC 550
 201

as 'penetration'. In Madan Gopal Kakad Naval Dubey & Another^^ it

held that even slightest penetration without rupturing the vagina
would constitute rape. This judgement has gone a long way in
convicting in cases of child rape. Prior to this judgement, all such
cases were being dealt with as a relatively minor offence under
section 354 of the Indian Penal Code.

Often technicalities and the letter of the law prevail over the
spirit of justice. But the Supreme Court in State of Kamataka u
Mahabaleshwar^^ scotched the prospect of a technicality overriding
the demands of justice. Ratnavelu Pandian, J, observed: 'Merely
because a victim is dead and consequently could not be examined
can never be a ground to acquit an accused if there is evidence
otherwise available proving the criminal act of the accused
concerned'.

Further, in another judgement, the Court held that a

conviction could rest even on the sole testimony of the victim, if
credible.3"* The Court has come down heavily on judgements that
have cast a stigma on the character of the victim.^s

In Delhi Domestic Working Women's Forum v Union of

India,^^, the apex court filled a serious lacuna in the Indian Legal
System that is lack of sufficient provisions to award compensation
to victims of rape.s'^ The Court laid down guidelines for assisting

32 (1992) 3 s e c 204.
33 AIR 1992 SC 2043.
34 See, Kamel Singh v. Slate ofMadhya Pradesh, (1995) 5 SCC 518.
35 See, The State of Punjab v. Gurmil Singh & Ors, (1996) 2 SCC 3 84.
36 (1995)1SCC14
37 The law in other countries ensure that victims of rape are enabled to get compensation
specifically. Though section 357 (3) of CrPC contemplates the grant of such
compensation, the provision is rarely invoked and even if granted, it is totally inadequate.
The victims suffer medical and psychological injuries, loss of job and prospects, and are
rarely compensated for these losses.
 202

the rape victims. The facts brought before the court in this case
related to rape of six women by army jawans on a train. The court
suggested, broadly, legal assistance at the police station,
information on the rights of representation available to the women,
preservation of the anonymity of the victim, keeping in the police
station a list of advocates willing to act in these cases, authorising
the advocate to act within the police station with respect to
questioning of the victim without delay, and the setting of Criminal
Injury Compensation Board which would provide for compensation
to the victim, whether or not a conviction had taken place. The
court also ordered that the scheme for compensation and
rehabilitation of the victims be focused on by the National
commission for Women and a time period of six months for the
scheme was set.^s

The case of Bodhisattva Gautam v Chakraborthy ^^is one in

which the Supreme Court yet again used provisions of criminal law
to deal with a difficult situation. The appellant, Bodhisattva
Gautam, had persuaded a women to have sexual intercourse with
him on a promise of marriage. He then went through a fake form of
marriage with her. She was twice pregnant and on each occasion
he compelled her to undertake an abortion. He then abandoned
her on the plea that he was never lawfully married to her. In these
circumstances, she lodged a complaint against him under section
312, 420, 493, 496 and 498A of the IPC. He applied to the High
Court to quash the prosecution which it refused to do. The appeal
to the Supreme Court resulted in a historic judgement where the
court took suo moto notice of the fact in the complaint, and issued

38 Criminal Procedure Code, Amendment 2008, incorporated provisions for Compensation

Board to victim of crimes, section 357-A.
39 (1996)1 s e c 490.
 203

a notice to him to show cause why he should not be compelled to

pay maintenance to a women he had cheated. The court held that
offences like rape were crime against the person's most basic
cherished human rights, namely the right to life. The court held
that under Article 32 it could take suo moto notice of the facts and
directed the appellant to pay interim maintenance of Rs. 1000 per
month to the woman pending the prosecution.

Further the Supreme Court in Chairman, Railway Board v.

Chandrima Das,'*^ has held that where victim is a Bangladeshi
woman and was gang raped in India, compensation can be granted
under public law (constitution) for violation of fundamental rights
on the ground of domestic jurisprudence based on constitutional
provisions and Human Rights jurisprudence.

In Naveen Kohli v. Neelu Kohli,^^ under the Hindu Marriage

Act, 1955 cruelty is the ground of the divorce for both the parties.
Prior to 1976 cruelty was the ground if the judicial separation and
after this it is a ground of the divorce. Cruelty is defined as the
"reasonable apprehension in the mind of the petitioner that it will
be harmful or injurious for the petitioner to live with other party."
To constitute cruelty conduct complained should be "grave and
weighty" so as to come to the conclusion that the petitioner spouse
can not be reasonable expected to live with other spouse. In such
cases, the Court has to consider the question from two angels.
One, the apprehension in the conduct of the respondent and
second the impact of such conduct on the party seeking relief who
must show actual or probable injury to his mental and physical
health.

40 AIR 2000 SC 988.

41 AIR 2006 SC 1675.
 204

(3) Dignity Issues

The remedy of Restitution of Conjugal Rights that compels a

wife to reside with her spouse is an archaic provision of law which
is most offensive to the dignity of women. Pointed by jurists '•s that
the remedy of restitution rights 'dates back to feudal England
where marriage was primarily a property deal and the wife and
children were part of man's possession as any other chattels'. The
remedy was enforced by the Ecclesiastical Courts by the seizure of
goods or excommunication. In 1857, when in England the
matrimonial courts began exercising jurisdiction over matrimonial
causes, the right could be enforced by the husband by detaining
the wife. However, the decision in R. v. Jackson,"*^ held that the
right could not be enforced by the act of either party and that a
husband could not detain his wife by force. After this decision the
proprietary notion behind the remedy largely disappeared and
under Indian law the remedy for non-compliance of the decree is
by way of attachment of the property of the person not obeying the
decree.'*'^

In Sareetha v. Venkata Subbaiah,'^^ case, the Constitutional

validity of Section 9"*^ of HMA was challenged on the ground that
the said provision of the Act is viloative of Articles 14 and 21 of the

42 See, Paras Diwan, "Restitution of Conjugal Rights and the Law Commission's
Recommendation for Reform", In V. Bagga (ed.), Studies in the Hindu Marriage and
Special Marriage Acts,{ I978),p p. 138-70.
43 (1891) 1 QB 671.
44 See, S.K. Verma and Kusum,f///y Years of the Supreme Court of India: Its Grasp and
Reach.(2000)pp. 295-96.
45 AIR 1983 AP 356.
46 "when either the husband or the wife has, without reasonable excuse withdrawn from the
society of the other' the aggrieved party may apply, by petition to the District Court, for
the restitution of the conjugal rights and the Court on being satisfied of the truth of the
statement made in such petition and there is no legal ground why the application should
not be granted may decree restitution of conjugal right accordingly".
 205

Constitution. The Court held that the effect of the decree of

restitution of conjugal rights is to compel the unwilling spouse to
have sex with the husband against that persons consent and free
will. Thus, permitting one's body to be used as a vehicle for
another human beings, creation. It denied the woman her free
choice whether, when and how her body is to become the vehicle
for procreation of another human being. It also deprived a woman
of control over her choice as and when and by whom the various
parts her body should be allowed to be used. A single judge of
Andhra Pradesh High Court was of the view that the remedy was
barbarous in nature and violative of Article 21 and of the right of
privacy.

The Delhi High Court in Harvinder Kaur v. Haiminder

Singh,'^'' took the view that the remedy under the HMA is
constitutionally valid and that its purpose is to bring about
cohabitation between estranged couples so that they can live
together in amity. The Supreme Court in Saroj Rani v. Sudarshan
Kumar,"*^ held that 'conjugal rights i.e. right of the husband or wife
to the society of the other spouse is not merely a creature of the
statute. Such a right is inherent in the very institution of the
marriage itself. The Court observed that 'there are sufficient
safeguards in Section 9 to prevent it being from a tyranny'. The
court further observed that:

Introduction of Constitutional Law in the home is most

inappropriate. It is like introducing a bull in a china
shop. In the privacy of the home and the married life,
neither Article 21 nor Article 14 have any place. In a

47 AIR 1984 Del 66.

48 AIR 1984 SC 1562.
 206

sensitive sphere which is at once most intimate and

delicate, the introduction of the cold principles of
constitutional law will have the effect of weakening the
marriage bond.

The case of Rupan Deol Bajaj v K.P. Singh Gill,'^^ widely-

covered by the press, is one that in many ways reflects the
increasing sensitivity of the Supreme Court to feminist concerns.
In a case where a male high level police officer had, among a series
of actions, slapped the posterior of a woman IAS officer in public
view, the Supreme Court directed the Chief Judicial Magistrate to
take cognizance of offence under sections 354 and 509 of the IPC,
i.e. assault or use of criminal force on a woman with the intent to
outrage her modesty and insulting the modesty of a woman by
words, acts or gestures. The Supreme Court in this case held that
the order of the high court quashing FIR was unjustified in view of
the offences being made out prima facie. The court, in the course
of this decision was required to interpret the term 'modesty'. It held
in this case that the ultimate test for ascertaining whether modesty
has been outraged is whether the action of the offender could be
perceived as one that is capable of shocking the sense of decency
of a woman. The interesting point that the Court made was that in
doing so, the test would have to be on an understanding of the
contemporary societal standards, thereby setting a precedent of
subjectivity. The Court held that the alleged actions of the officer
amounted to outraging of the modesty of a woman as it was an
affront to her dignity. It is important to note that the Supreme
Court clearly stated that the presence of 'sexual overtones' was not
necessary for an outrage to be established. The attendant

49 (1995) 6 s e c 194.
 207

circumstances, consisting of overtures, were sufficient indicators of

intention required under the provision.

In Vishakha v. State of Rajasthan,^^ the Supreme Court felt

that the absence of legislation should not be allowed to perpetrate
gender based violence against women at work places and laid down
a series of guidelines to be observed in all institutions employing
women, until legislation is enacted for the purpose. The court
literally legislated on what constitute sexual harassment and how
complaints have to be processed promptly and fairly through a
mechanism which the court itself devised through the judgment.
The decision constitutes a landmark in gender justice development
through judicial decision. The court declared sexual harassment of
a working woman at her place of work as amounting to violation of
rights of gender equality and right to life and liberty, which is a
clear violation of Article 14, 15 and 21. The court observed:

'The meaning and content of the fundamental rights

guaranteed in the Constitution of India are of sufficient
amplitude to encompass all the facets of gender equality
including prevention of sexual harassment or abuse'.

In this context, the fundamental rights provisions have been

used by the court not only against the government and its
instrumentalities absence of any domestic law relating to this
matter, the court itself has laid down under Article 32 some
directions for the prevention of such harassment.

Significantly, the court has accepted the proposition that the

international conventions and norms are to be read into the
fundamental rights when there is a no inconsistency between the

50 AIR 1997 SC 3011.

 208

two. In the instant case, the Supreme Court referred to the

Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) and also the resultant violation of gender
equality under Articles 14, 15 and 21 of the Constitution.
According to the court: Tt is now an accepted rule of judicial
construction that regard must be had to international conventions
and norms for construing domestic law when there is no
inconsistency between them and there is a void in the domestic
law'. And the directions were to be applicable to both public and
private sector.

Further, the Supreme Court reiterated its decision in Apparel

Export Promotion Council v. A.K. Chopra,^^ took serious note of
sexual harassment at the place of work and observed:

There is no gainsaying that each incident of sexual

harassment, at the place of work, results in violation of
the Fundamental Right to gender equality and the Right
to Life and Liberty, the two most precious fundamental
rights guaranteed by the Constitution... In our opinion,
the contents of the fundamental rights guaranteed in
our Constitution are of sufficient amplilxide to
encompass all facets of gender equality, including
prevention of sexual harassment and abuse and the
courts are under a constitutional obligation to protect
and preserve those fundamental rights. That sexual
harassment of a female at the place of work is
incompatible with the dignity and honour of a female
and needs to be eliminated...^^

51 AIR 1999 SC 625.

52 Ibid, p.634.
 209

(4) Adultery

Women's right activists have also time and again opposed

the retention of the provision relating to adultery. The provision,
though are purportedly enacted for protecting women and make
only the man in most circumstances liable, in fact only held
reiterate the social belief that women are weak, have no mind of
their own and hence, must be protected by men. The definition of
adultery in the IPC is in fact most offending to the concept of
equality of sexes guaranteed under the Constitution. If a man has
sexual intercourse with a married woman, without the consent or
connivance of her husband, than he commits adultery. A reading
of the section itself clearly shows that the entire essence of the
offence is that the wife is the property of the husband and such
property should not be tresspassed upon or encroached upon by
another man, without the consent of the man concern. It treats
women as no better then chattels.

In Yusuf Abdul Aziz V. State of Bombay,^^ the constitutional

vires of the sec 497 was challenged in the Supreme Court on the
grounds, inter alia, that it: (i) by making only a man responsible for
adultery and mandating a court the adulterous wife be not
punished even as an abetter, discriminates iri favour of women and
against man only on the ground of sex, and thereby goes against
the spirit of equality embodied in the Constitution; and (ii) by
conferring upon the husband the right to prosecute the adulterer
but not conferring a corresponding right upon the wife to prosecute
the woman with whom her husband has committed adultery and

53 AIR 1954 SC 321.

 210

her husband who has committed adultery with another woman,

makes an irrational classification between woman and man.

However, the Supreme Court rejected all the arguments

advanced against adultery to uphold its constitutional vires. It
opined that 'adultery', which deals only with 'an outsider' to the
matrimonial unit who invades the peace and the privacy of the
matrimonial unit and poison the relationship between the two
partners constituting the matrimonial unit, is a beneficiary
provision for a woman. The Apex Court also ruled that section 497
does not violate the gender equality clauses of the Constitution.
And if it offend the equality clauses of the Constitution, it is a
question of 'policy of law' that has nothing to do with the
constitutionality of section 497.

In Sowmithri Vishnu v. Union of India,^'* it was argued that

the provision was violative of Article 14 of the Constitution and
makes an irrational classification between men and women
because (a) the section gives a right to the husband to prosecute
the adulterer but does not confer a similar right on the wife to
prosecute the woman with whom her husband committed adultery;
(b) the provision does not give any right to the wife to prosecute the
husband who has committed adultery with another woman; and (c)
section 494 does not bring within its ambit sexual relations of the
husband with unmarried women and thus bestows on him as it
were, a free licence to have sexual relations with unmarried
women. Chandrachud, J, delivering the opinion was of the view
that the provision is not violative of the Constitution and that the
matter pertains to the sphere of law - makers. He observed:

54 AIR 1985 SC 1618.

 211

7f is better from the view point of the interest of society

that at least a limited class of adulterous relations is
punishable by law. Stability of marriage is not an ideal
to be scorned, '^s

Various jurists criticised the judgement and this discussion

drew a n open criticism from all quarter.S.P. Sathe opined that:

The fact that the wife of the adulterer is expressly

prohibited from prosecuting her husband is the only
exception to the general rule that any one can set the
criminal law in motion. The exception is based on an
understanding of the very nature of the harm caused by
adultery. Adultery is seen as a husband's property
rights over his wife; more specifically a husband's
exclusive access to his wife's sexuality. It is not a
violation of a wife's rights since she does not possess
the same claim to her husband.

Specifically referring to the constitutional aspects Sathe

says: 'it was clearly a case of discrimination on the ground of sex
forbidden by clause (2) of Article 15 of the Constitution and not
protected.'

In fact these views of feminist scholars ignore the large

question of sameness versus difference that dominates the gender
issues, and in particular the ambit of Article 15(3). For example
one can say that a provision in the Penal Code which exempts
women from the death penalty would be unconstitutional?

55 Id
 212

In V Revathi v. Union oflndia,^^ the validity of Section 198(2)

of Criminal Procedure Code, 1973 read with Section 497 of the
Indian Penal Code, 1860 (IPC) was challenged on the ground of
violation of the Article 14 of the Constitution. Section 198(2) of the
Criminal Procedure code gives the right to prosecute the adulterer,
to the husband of the adulteress and not to the wife of the
adulterer. It permits neither the husband of the offending wife to
prosecute his wife nor does it permit the wife to prosecute the
offending husband for being disloyal to her. The Supreme Court
upheld the constitutionality of the impugned provision and
explaining the philosophy underlying the scheme of Section 198(2)
of the Criminal Procedure Code and Section 497 of IPC and further
observed:

The philosophy underlying . . . . appears to be that as

between the husband and the wife, social good will be
promoted by permitting them to "make up" or "break
up" the matrimonial tie rather than to drag each other to
the Criminal Court . . . . they can either condone the
offence in a spirit of "forgive and forget" and live
together and separate by approaching a m.atrimonial
court and snapping the matrim.onial tie by securing
divorce. They are not enabling to send each other to jail.
Perhaps it is as well that the children are saved from
the trauma of one of their parents being jailed at the
instance of other parent.

56 AIR 1988 SC 835.

 213

(5) Equality

"/ am uncompromising in the matter of women's rights. In my

opinion she should labour under no legal disability, not suffered by
man. I should treat the daughters and sons on a footing of perfect
equality." Mahatma Gandhi

The early years of the Supreme Court witnessed battles over

land reforms. The apex court clearly had quite a different
perception of equality and ways of arriving at it. While most states
had passed land reforms Acts, almost all excluded the married
daughter from the definition of 'family' unit, and much of this
litigation was therefore of no relevance to women. While
Champakam and Beia Bannerjee were both women, and while they
both obtained justice from the Supreme Court and on both
occasions the Court had occasion to consider the empowerment
model of equality, in none was gender justice the issue. It was
telling comment on the times.

The basic fundamental right are already given in our

Constitution and in addition to this Indian Judiciary has also
contributed in the interpretation of these rights in favour of
empowerment of women. In several decisions that the Court has
emphasised that equality is a positive right and requires the State
into minimise the existing inequalities and to treat unequal or
underprivileged with special care as envisage in the Constitution of
India.57

57 See, Supriya Yadav, "Emancipation of Women: From Awareness to Empowerment",

Social Action, Vol. 58, October-December 2008, pp. 412-419. Also see Indra Sawhney v.
Union of India, (1992) 3 SCC 217, Stephen's College v. University of Delhi, AIR 1992
SC 1630, Srinivasa Theatre v. Government of Tamil Nadu, AIR 1999 SC 999.
 214

The Constitution makes specific mention of equality between

the sexes in Article 14, 15 which prohibits discrimination against
women and also make room for affirmative action which is so
eloquently spoken of in CEDAW. The Indian Judiciary has also
adopted the various provisions of the International Conventions
while deciding the matter in favour of women.

Indian judiciary has applied the principle of equality of

status, opportunities and justice while interpreting statues,
relating to women's development and empowerment. The court
tended to prefer a classificatory approach to equality as more and
more challenges to state action were brought under the equality
clause. In A.S. Iyer v. Balasubramanyam^^ Justice Krishna Iyer
quoted the observation made in Lachman Das v. State of Punjab^^
that:

The doctrine of classification is only a subsidiary rule

evolved by courts to give a practical content to the said
doctrine. Overemphasis on the doctrine of classification
or an anxious and sustained attempt to discover some
basis for classification may gradually and imperceptibly
deprive the ariicle of its glorious content. That process
would inevitably end in substituting the doctrine of
classification for the doctrine of equality; the
fundamental right to equality before the law and the
equal protection of the laws may be replaced by the
doctrine of classification.

58 (1980) 1 s e c 634.
59 (1963) 2 SCR 353 at 395.
 215

However, while working out the 'equality clause', the Court

found itself entrapped in the discourse of 'reasonable
classification'. If the classification was based on intelligible
differentia and if it had a rational nexus with the object of the state
action, the Court would negative any challenge founded on the
equality clause. In the late 1970s, the apex court gave a new look
to this doctrine. Arbitrariness, the new doctrine propounded,
offended equality. Anything that was arbitrary was antiethical to
the constitutional guarantee of equality.^o

Before an analysis of judicial decisions on women, it would

be useful to look into the approach of the Court to the employment
provision and the reservations clause. Was the reservations clause
an exception or an integral facet of the equality rule in the
employment provision? The apex court has affirmed in two key
decisions (in Kerala v. N.M. Thomas^^; Indra Sawhney v. Union of
India^^) that the reservations clause is not an exception to the
employment provision but is a component of the dynamic equality
embodied in it. It embodies protective equality and merely clarifies
the substantive equality of the employment provision.^^

The apex court has drawn from this integrationist model to

sustain reservations for women made under the special provisions
clause. It must however be said that, by and large, in matters of
employment courts have been vigilant in protecting women's right

60 See, supra note 7 p. 296.

61 (1976) 2 s e c 310.
'^'>
62 (1992)Supp3SCC217.
63 See, supra note 7 p. 296.
 216

to equality, in C.B. Muthamma v. Union of India^'^, a provision in

foreign services rules requiring a female employee to obtain the
permission of the Government in writing before her marriage is
solemnised and denying her the right to be promoted on the
ground that the candidate was a married woman, was held
discriminatory against women and hence, unconstitutional.
Justice Krishna Iyer speaking for the court made the following
observation:

We do not mean to universalise or dogmatise that men

and women are equal in all occupations and all
situations and do not exclude the need to pragmatise
where the requirements of particular employment, the
sensitivities of sex or the peculiarities of societal sectors
or the handicaps of either sex may compel selectivity.
But save where the differentiation is demonstrable, the
rule of equality must govem.^^

In Air India v. Nargesh Meerza,^^ the Air India and Indian

Airlines Regulations was challenged as violative of Article 14.
Regulation 46 provided that an Air Hostess was retire from services
upon attaining the age of 35 years or on marriages if it took place
within four years of joining the services or in first pregnancy,
whichever occurred earlier. Regulation 47 empowered the
Managing Director, at his option, to extend the age of retirement by
one year at a time the age of retirement, up to the age of 45 years,
if an Air Hostess was found medically fit.

64 AIR 1979 SC 1868.

65 Id.
66 AIR 1981 SC 1829.
 217

The Supreme Court struck down the Regulation providing for

retirement of the Air Hostess on her first pregnancy, as
unconstitutional, void and violative of Article M^^ of the
Constitution. The Court explained that regulation did not prohibit
marriage after four years of joining services and if an air hostess
after having fulfilled the first condition became pregnant, there was
no reason why pregnancy should stand in the way of her
continuing services. Having taken the Air Hostess in services and
after having utilised her services for four years, to terminate her
services if she became pregnant, the Court said, amounted to
compelling the poor air hostess, not to have any children. It thus
amounted to interfere with and divert the ordinary course of
human nature. It was held not only callous and cruel act but an
open insult to Indian Womanhood, the most sacrosanct and
cherished institution. Such a provision, the court said, was not
only manifestly unreasonable and arbitrary but contained the
quality of unfairness and exhibited naked despotism and was,
therefore, clearly viloative of Article 14.

The Regulation giving opinion to the Managing Director to

extend the services of an Air Hostess conferred a discretionary
power without laying down any guidelines or principles, was struck
down as unconstitutional. However, the provision that an Air
Hostess was to retire if she married within four years of joining
services was upheld as there was no unreasonableness or
arbitrariness in the provision. It was held to be very sound and
salutary provision. If an Air Hostess married at a mature age .i.e.
near about the age of 20 to 23, she having become fully mature.

67 The State shall not deny any person equality before the law or equal protection of laws
within the territory of India.
 218

there would be every chance of marriage providing a success all

things being equal. Apart from improving the health of the
employee, the Court held, it would help a good deal in the
promotion and boosting up of our family planning programmes.

Another case of discrimination against women in Maya Devi

case,68 in this case, the civil surgeon had issued an advertisement
for a training course in midwifery at the district hospital. The
advertisement had a clause, "married women candidates must
enclosed along with their application, and their husband's written
permission for pursuing the course". The wife got the letter of
consent from her husband and joined the course. The husband
had second thought and he wrote to her authority saying that she
should return. The wife was asked to produce another letter of "no
objection". The judge cited the Air Hostess case^^ and held that the
relevant condition in the advertisement is wholly unreasonable and
discriminatory being viloative of right of equality and it was also
observed that the husband cannot prevent the wife from standing
on her own feet.

In yet another case against Miss Leena Khan v. Union of

India and ors.,"^^ the regulation which required air hostess
employed in India to retire age of 35, with extension up to the age
45, but which allowed air hostess employed outside India to
continue in employment beyond age 45, was challenged as
viloative of Article 14 and 15. The supreme Court held that such
discrimination should not be allowed merely because it complies
with local law pass our Air hostesses recruited outside India at age

68 AIR 1986(1) SLR 743.

69 See, Air India v. Nargesh Meerza, AIR 1981 SC 1829
70 AiR 1987 SC 1515.
 219

45, the court conclude that no intervention was required at that

time. Finally, the court examined whether the mandatory
retirement of Air hostess at the age of 35, extensible to 45 years at
the discretion of the managing director, was an arbitrary or
unreasonable restriction. In considering the argument offered by
Air India in support of this provision, the Court expressly rejected
the argument that air hostess must be "young and Attractive". In
considering the other arguments in favour of the provisions, the
court was particularly concerned with the discretion exercised by
the managing Directors. Since the regulation did not provide any
guidelines, rules or principle to govern the exercise of the
discretion, it was held to be arbitrary.

In Government of A.P. v. P.B. VijayakumarJ^ the Supreme

Court, explaining the object for inserting clause (3) to Article 15,
observed:

The insertion of clause (3) of Article 15 in relation to

women is recognition of the fact that for Centuries,
women of this country have been socially and
economically handicapped. As a result, they are unable
to participate in socio-economic activities of the nation
on a footing of equality. It is in order to eliminate this
socio-economic backwardness of wom.en and to
empower them in a manner that would bring about
effective equality between men and women that Article

71 AIR 1995 SC 1648. Also see: Vijay Lakshmi v. Panjab University, AIR 2003 SC 1331,
wherein a provision for reservation of posts of principal and teachers for women in
colleges for girls has been upheld as not viloative of Article 14, 15 and 16. See also: State
of M.P. V. G.D. Tirlani, AIR 2003 SC 2952, wherein the Apex Court upheld a rule
providing relaxation in eligibility criterion in favour of female doctors for admission to
post- graduate courses.
 220

15(3) is placed in Article 15. Its object is to strengthen

and improve the status of women.

The "special provision" which the State may make under

Article 15(3), can be in the form of either affirmative action or
reservation. Therefore, making special provision for women in
respect of employment or posts under the state is an integral part
of Article 15(3) and the power conferred under this clause is not
whittled down in any manner by Article 16. Since Article 16 does
not specifically permit special provisions for women being made by
the state, it has been held that Article 16'^2 could not, in any
manner derogate from the power conferred upon the state in this
connection under 15 (3). This power has been held to be wide
enough to cover the entire range of State activity including
employment under the State.

The Supreme Court in Samatha v. State of A.P.,'^^ held that

socialism is a movement aiming at greater social and economic
equality and using extended State action as one of its methods,
perhaps the most distinctive but certainly not the only one needed
to be taken into account. The affairs of the community shall be so
administered as to further the common interests of ordinary men
and women by giving to everyone, as far as" possible, an equal
opportunity to live a satisfactory and contented existence, coupled
with a belief that such opportunity is incompatible with the

72 No citizen shall on ground only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of, any
employment or office under the State.
73 (1997) 8 s e c 191,also see G.D.H. Cole quoted in Morris Ginsberg, Law and Opinion in
England in the 20th century (ed.) pp 79-80.
 221

essentially unequal private ownership of the means of

production.'^'*

The court further observed:

The founding fathers with hindsight, engrafted with

prognosis, not only inalienable human rights as part of
the Constitution but also charged the State as its policy
to remove obstacles, disabilities and inequalities for
human development and positive actions to provide
opportunities and facilities to develop human dignity
and equality of status and of opportunity for social and
economic democracy. Economic and social equality is a
facet of liberty without which meaningful life would be
hollow and a mirage."^^

In Gaurav Jain v. Union of India,"^^ in a petition, by v/ay of

public interest litigation, the petitioner asked for improvement of
the plight of the unfortunate prostitutes/ fallen women and their
progeny. The Supreme Court felt itself more concerned with the
rehabilitation aspect of the problem. Justice K. Ramaswamy
observed that

"Frailty, thy name is woman", was the ignominy

heaped upon women of the Victorian era by William.
Shakespeare in his great work Hamlet. The history of
sociology has, however, established the contrary, i.e.,
"fortitude", thy name is woman; "caress", thy name is
woman; "self-sacrifice", thy name is woman; tenacity

74 Ibid, p. 264.
75 Ibid, p. 244.
76 (1997) 8 s e c 114.
 222

and successful pursuit, these epithets portray women.

Indira Gandhi, Margaret Thatcher, Sirimavo
Bandaranaike and Golda Meir are a few illustrious
women having proved successful in democratic
governance of the respective democratic States. Amidst
them, still, a class of women is trapped as victims of
circumstances, unfounded social sanctions, handicaps
and coercive forms in the flesh trade, optimised as
"prostitutes", (for short "fallen women"). Seeking their
redemption, a few enlightened segments are tapping the
doors of this Court under Article 32 of the Constitution,
through a public-spirited advocate, Gaurav Jain who
filed, on their behalf, the main writ petitions claiming
that right to be free citizens; right not to be trapped
again; readjusted by economic empowerment, social
justice and self-sustenance thereby with equality of
status, dignity of person in truth and reality and social
integration in the mainstream are their Magna Carta.'^'^

The Preamble, an integral part of the Constitution, pledges to

secure "socio-economic justice" to all its citizens with stated
liberties, "equality of status and of opportunity", assuring
"fraternity" and "dignity" of the individual in a united and
integrated India. The fallen women too are part of the citizenry.

Part IV of the Constitution relates to the Directive principle

of State Policy. It set forth the ideals and objectives to be achieved
by state for setting up in India social welfare State, which aims at

77 Ibid., p.\\9.
 223

social welfare and the common good and to secure to all its
citizens, justice-social and economic.

The Court further observed that:

Economic rehabilitation is one of the factors that
prevents the practice of dedication of the young girls to
prostitution as Devadasis, Jogins or Venkatasins. Their
economic empowerment and education gives resistance
to such exploitation; however, economic programmes are
necessary to rehabilitate such victims of customs or
practices. . . . It would, therefore, be meaningful if
rehabilitation programmes are launched and
implementation machinery is set not only to eradicate
the fertile source of prostitution but also for successful
rehabilitation of the fallen women who are the victims of
circumstances to regain their lost respect for the dignity
of person to sustain equality of status, their economic
and social empowerment. ^^

In another judgement the court held that the basic aim of

the welfare State is the attainment of substantial degree of social,
economic and political equalities, the assumption by community
acting through the State, as its responsibility to provide the means,
whereby all its members can reach minimum standard of economic
security, civilised living, capacity to secure social status and
culture to keep good health. The welfare State, therefore, should
take positive measures to assist the community at a large to
achieve the above."^^

78 Ibid., p.l25.
79 See Air India Statutory Corpn. v. United Labour Union AIR 1997 SC 645.
 224

In S.S. Bola v. B.D. Sardana,^'^ thus, the essence of civil

liberty is to keep alive the freedoms of the individual subject to the
limitation of social control which could be adjusted according to
the needs of the dynamic social evolution. Liberty, equality and
fraternity are not to be treated as separate entities but a trinity.
They form a union in that to divorce one from the other is to defeat
the very purpose of democracy. Liberty cannot be divorced from
equality. Equality cannot be divorced from liberty. Nor can equality
and liberty be divorced from fraternity. Without equality, liberty
would produce supremacy of law. Equality without liberty would
kill individual initiative. Without fraternity, liberty and equality
would not become a natural course of things. Courts, as sentinel
on the qui vive, therefore, must strike a balance between the
changing needs of the society for peaceful transformation with
order and protection of the rights of the citizen. This could be
achieved through securing and protecting liberty, equality and
fraternity with social justice and economic empowerment and
political justice to all citizens only under the rule of law.

The Supreme Court, in Geetha Hariharan v. Reserve Bank of

India,^^ invoked the rule of harmonious construction for securing
the Constitutional guarantee of gender equality. After enunciating
the above rule, the Apex Court upheld the validity of Section 6(a)82
of the Hindu Minority and Guardianship Act 1956 and held that
mother could act as natural guardian of minor even when father
was alive. The Court said that the word after in this Section did

80 (1997) 8 s e c 522, at 588.

81 (1999) 2 s e c 228. Also see Galla Mandi M.S.S.S v. Stale ofM.P, AIR 2002 M.P. 266.
82 The natural guardian of a Hindu minor, in respect of the minor's person as well as in
respect of the minor's property are- in the case of a boy or an unmarried girl- the father,
and after father him, the mother: provided the custody of a minor who has not completed
the age of five years shall ordinarily be with the mother.
 225

necessarily don't mean "after the life time" but it meant "in the
absence of. As Justice A.S. Anand, as thus, in his judgement
pointed out that if the section is so understood, 'the section has to
be struck down as unconstitutional as it undoubtedly violates
gender equality, one of the basic principles of our Constitution'.^s

Article 15(3) contains the special provisions for women and

children. This clause 15(3) enables the State to confer special
rights upon women^"*, since women are well defined class.^^

The word "fof in clause (3) signifies that the special

provisions can be made "in favour of women and not against
them.86 Therefore, clause (1) to (3) of Article 15, read together
would imply that State can discriminate in favour of women
against men, but can not discriminate in favour of men against
women.8'^

Article 42 of the Constitution enjoins the State to make

provisions for securing just and humane conditions of work and
for maternity relief. A law made to implement this Directive
Principle of State Policy, securing maternity relief to women
workers, would not be viloative of Article 15(1), but would be
within the purview of Article 15(3). Sections 125 of the Criminal
Procedure Code, 1973, which requires the husband to maintain his
wife and not vice versa, has been held not discriminatory, for it
merely, provide protection to women and children in certain
circumstances. Order 5, rule 15 of the Civil Procedure Code 1908,

83 Ibid, p.235.
84 See,Ramchandra v. Stale of Bihar, AIR 1996 Patna 214. Shahbad v. MohdAbullah, AIR
1967 J.K. 120.
85 See, State of MP. v. G.D. Tirthani, AIR 2003 SC 2952.
86 See, Anjali Roy v. State of West Bengal, AIR 1952 Calcutta 825.
87 See, K Revalhi v. Union of India, AIR 1998 SC 835; Sowmithri Vishnu v. Union of India,
AIR 1985 SC 1618.
 226

which makes services of summons on the male members of family

has been held not discriminatory and it is a special provision
covered by Article 15 (3).^^ Likewise, Section 14 of the Hindu
Succession Act, 1956, absolutely vesting the inherited property in
women which was earlier held by them as limited estates, has been
held to be protected from attack under Article 15(3).89

The Constitution (73''^ Amendment) Act 1992 and the

Constitution (74^^ Amendment) Act 1992 added Article 243-D and
243-T to the Constitution, making provisions for reservation of not
less than one third of the total seats for women in the Constitution
of the Panchayat and the Municipalities, respectively. The object of
these provisions is to raise the political status of our womenfolk
and the removal of imbalance in the participation of men and
women in political life. These provisions would be protected under
Article 15(3).

In Gayatri Devi Panjari v. State of Orissa,'^^ upheld the policy

of government to give preference to women while allotting shops on
merit in addition to 30 percent observation for women in that
regards. The Court opined that reserved for any category can not
be taken as a ceiling and the government could, prefer women over
men ever if there was reservation for women since the policy of
reservations aims at ensuring the minimum while the policy of
preference aims at facilitating the empowerment of the
disadvantages sections of the people.

The Supreme Court delivered a very significant judgment

when it averred in Velamuri Venkata Sirprasad v. Kothuri

88 See, Shahbad v. Mohd. Abdulla, AIR 1967 Jammu and Kashmir 120.
89 See, Thota Sesharanthamma v. Thota Mdnikyamma (1991) 4 SCC 312.
90 AIR 2000 SC 1531.
 227

Venkateshwarlu that equality of status was integrated to the

concept of basic structure of the constitution and was an
important dimension of gender justice.

In Union of India v. K.P. Prabhakaran,^^ reservation to

women in relation to the post of enquiry/reservation clerks in
reservation office at Madras, Bombay, Calcutta and Delhi by
Railway Administration was given judicial approval.

(6) Equal Pay for Equal Work

The economic backwardness of the Indian women has been

noticed by the judiciary in a number of pronouncements. The
Supreme Court in a number of cases held that right to economic
empowerment of women is a human right of women. The right of
livelihood92 was not given much importance earlier. The approach
of equal pay for equal work was taken by the Supreme Court to
expand the scope of such fundamental rights as Article 14 and 21
and give them a great depth and dimension.

In Randhir Singh v. Union oflndia,^^ the court expounded the

principal of 'equal pay for equal work' by reading article 14 and 16
with the directive principle contained in article 39(d). This means
that people working under the same employer ought to get the
same scales of pay for doing identical work. The court has ruled
that the principles of equal pay for equal work is not an abstract
doctrine but one of substance. Though the principle is not
expressly declared by the Constitution to be a fundamental right it
is certainly a constitutional goal set forth by article 39(d). The

91 (1997) ! s e c 638.
92 Article 39 says: 'The State shall, in particular, direct its policy towards securing... (d)
that there is equal pay for equal work for both men and women'.
93 AIR 1982 SC 879.
 228

principle is applicable properly to cases of unequal scales of pay

based on no classification or irrational classification though
persons with different scales of pay do identical work under the
same employer. The court observed:

Hitherto the equality clauses of the Constitution, as

other articles of the Constitution guaranteeing
fundamental and other rights, were most often invoked
by the privileged classes for their protection and
advancement and for a fair and satisfactory'
distribution of the buttered amongst themselves. Now,
thanks to the rising social and political consciousness
and the expectations roused as a consequence, and the
forward looking posture of this Court, the under
privileged also are clamouring for their rights and are
seeking the intervention of the court with touching faith
and confidence in the court.

The court further said

To the vast majority of the people in India the equality

clauses of the Constitution would mean nothing if they
are unconcerned with the work they do and the pay
they get. To them the equality clauses will have some
substance if equal work means equal pay.^^

Even though in this case the issues was not related to

gender however if one note the court's opinion and in particular
the term 'person' used by it, can easily gather the intention of the
court that it includes both men and women as the Constitution

94 Ibid
 229

mentioned it clearly. The court further clear the same in Olga Tellis
V. Bombay Municipal Corporation,^^ when the Supreme Court
declared it to be a part of the right to life guaranteed by Article 21.

The Supreme Court has displayed a liberal approach in

interpreting the Equal Remuneration Act of 1976, enacted to
provide equal remuneration to male and female employees. The Act
provide that "no employer shall pay to any worker, remuneration at
rates less favourable than those at which remuneration is paid to
workers of the opposite sex''^^ j-^e y^^t was amended in 1987 to
provide for more deterrent punishment and to prohibit
discrimination not only in initial recruitment but also in any
condition of services such as promotion, training or transfer.
However, in spite of this Act, women continuous to be
discriminated in job and condition of services in the case of
Mackinnon Mackenzie and Co. v, Andry D'costa,^'^ the court rules:

"Discrimination arises only where men and women

doing the same or similar kind of work are paid
differently. Wherever sex discrimination is alleged, there
should be proper job evaluation before any further
enquiry is made. If the two jobs in an establishment are
accorded an equal value by the application of those
criteria which are themselves non -discriminatory (i.e.
those criteria which look directly to the nature and
extent of the demands made by the job) as distinct from
criteria which setout different values for men and
women on the same demand and it is found that man

95 AIR 1986 SC 180.

96 The Equal Remuneration Act, 1976,Section 4
97 (1987) 2 s e c 469.
 230

and woman employed on these two jobs are paid

differently, then sex discrimination clearly arises."

In this case it was proved that the employer M/s. Makenzine

had discriminated against Andry D'costa because she received a
lower salary as a women stenographer. The condition of the
company that male and female stenos performed different kinds of
duties because the former were in a general pool, while the latter
were attached to the executives was rejected by the Court.

In Madhu Kishwar v. State of Bihar^^, the Apex Court

revisited the constitution assembly debates to have an insight on
the issue economic empowerment of women and stated that;

"Bharat Ratna Dr B.R. Amhedkar stated on the floor of

the Constituent Assembly that in future both the
legislature and the executive should not pay mere lip-
service to the directive principles but they should be
made the bastion of all executive and legislative action.
Legislative and executive actions must be conformable
to, and effectuation of the fundamental rights
guaranteed in Part III and the directive principles
enshrined in Part IV and the Preamble of the
Constitution which constitute the conscience of the
Constitution. Covenants of the United Nations add
impetus and urgency to eliminate gender-based
obstacles and discrimination. Legislative action should
be devised suitably to constitute economic
empowerment of women in socio-economic restructure
for establishing egalitarian social order. Law is an

98 (1996) 5 s e c 125.
 231

instrument of social change as well as the defender of

social change. Article 2(e) of CEDAW enjoins this Court
to breathe life into the dry bones of the Constitution,
international conventions and the Protection of Human
Rights Act, to prevent gender-based discrimination and
to effectuate right to life including empowerment of
economic, social and cultural rights. '^^

The Court further emphasized the question on the

discrimination against women while quoting from U.N. report as
under;

"women constitute half the world population,

perform nearly two-thirds of work hours, receive one-
tenth of the world's income and own less than one-
hundredth per cent of world's property".
Half of the Indian population too are women. Women
have always been discriminated against and have
suffered and are suffering discrimination in silence.
Self-sacrifice and self-denial are their nobility and
fortitude and yet they have been subjected to all
inequities, indignities, inequality and discrimination.
Articles 13, 14, 15 and 16 of the Constitution of India
and other related articles prohibit discrimination on the
ground of sex. Social and economic democracy is the
cornerstone for success of political democracy. The
Scheduled Castes, Scheduled Tribes and women, from
time immemorial, suffered discrimination and social
inequalities and made them accept their ascribed social
status. Among women, the tribal women are the lowest

99 /bid., p. 148. Also see U.N. Report 1980.

 232

of the low. It is mandatory, therefore, to render them

socio-economic justice so as to ensure their dignity of
person, so that they be brought into the mainstream of
the national life. We are conscious that in Article 25
which defines Hindus, Scheduled Tribes were not
brought within its fold to protect their customs and
identity. We keep it at the back of our mind."^^^

The court further observed that

"The public policy and constitutional philosophy

envisaged under Articles 38, 39, 46 and 15(1) and (3)
and 14 is to accord social and economic democracy to
women as assured in the Preamble of the Constitution.
They constitute the core foundation for economic
empowerment and social justice to women for stability
of political democracy. In other words, they frown upon
gender discrimination and aim at elimination of
obstacles to enjoy social, economic, political and cultural
rights on equal footing. Law is a living organism and its
utility depends on its vitality and ability to serve as
sustaining pillar of society. Contours of law in an
evolving society must constantly keep changing as
civilization and culture advances. The customs and
mores must undergo change with the march of time.
Justice to the individual is one of the highest interests of
the democratic State. Judiciary cannot protect the
interests of the common man unless it would redefine
the protections of the Constitution and the common law.

100 Ibid. P. ]49.

 233

If law is to adapt itself to the needs of the changing

society, it must be flexible and adaptable."^oi

In C. Masilmani Mudaliar v. Idol of Sri Swaminathaswami

Thirukoil,^^^ the Supreme Court accepted the prevailing inequality
and stated that:

"It is seen that if after the Constitution came into force,

the right to equality and dignity of person enshrined in
the Preamble of the Constitution, Fundamental Rights
and Directive Principles which are a trinity intended to
remove discrimination or disability on grounds only of
social status or gender, removed the pre-existing
im.pediments that stood in the way of female or weaker
segments of the society. In S.R. Bommai v. Union of
India this Court held that the Preamble is part of the
basic structure of the Constitution. Handicaps should be
removed only under rule of law to enliven the trinity of
justice, equality and liberty with dignity of person. The
basic structure permeates equality of status and
opportunity. Tlie personal laws conferring inferior status
on women is anathem.a to equality. Personal laws are
derived not from the Constitution but from the religious
scriptures. The laws thus derived m.ust be consistent
with the Constitution lest they become void under
Article 13 if they violate fundamental rights. Right to
equality is a fundamental right. Parliament, therefore,
has enacted Section 14 to remove pre-existing
disabilities fastened on the Hindu female limiting her

101 Ibid. p.\52.

102 AIR 1996 SC 1697.
 234

right to property without full ownership thereof. The

discrimination is sought to be remedied by Section 14(1)
enlarging the scope of acquisition of the property by a
Hindu female appending an explanation with it."^^^

The Court also observed:

"Parliament has enacted the Protection of Human Rights

Act, 1993. Section 2(b) defines 'human rights' to mean

'the rights relating to life, liberty, equality

and dignity of the individual guaranteed by
the Constitution or embodied in the
International Covenants and enforceable by
courts in India.'

Thereby, the principles embodied in CEDAW and the

concomitant right to development became an integral
part of the Constitution of India and the Human Rights
Act and became enforceable. Section 12 of the Protection
of Human Rights Act charges the commission with duty
for proper implementation as well as prevention of
violation of the human rights and fundamental
freedoms.

Though the Government of India kept its reservations on

Articles 5(e), 16(1), 16(2) and 29 of CEDAW, they bear
little consequence in view of the fundamental rights in
Articles 15(1) and (3) and Article 21 and the Directive
Principles of the Constitution."

103 Id.
 235

The Court passed direction to the state government that:

"Effective measures should be undertaken to ensure

that women have an active role in the development
process. Appropriate economic and social reforms
should be carried out with a view to eradicate all social
injustice."

Women workers are in no way inferior to their male counter

parts yet they drew lesser pay for the similar work. The Supreme
Court again explained the movement of equal pay for equal work in
Associate Banks Officers Association v. State Bank of India,^^"^
'historically, equal pay for work of equal value has been a slogan of
the women's movement. Equal pay laws, therefore usually deal
with sex based discrimination in the pay scales of men and women
doing the same or equal work. In the Remuneration Act, 1976
provides for the payment of equal remuneration to men and
women workers and is meant to prevent discrimination on the
ground of sex against women in the matter of employment.

In yet another case of Central Co-Operative Consumer Stores

Ltd, through its General Manager v. Labour Court, H.P. Shimla,^^^
in this case the appellant co-operative society was running a super
bazaar in Shimla and appointed sales girls (opposite party). The
trouble started when one of the managers came there on transfer,
"apart from insult, humiliation and harassment thrust on her, the
manager terminated her services illegally without being authorised
to do so. The lady, who was apprising her superior of
misbehaviour, took recourse to legal action. The assistant registrar

104 AIR 1998 SC 32.

105 1993 (2) Scale 842.
 236

after taking seven years to decide the case held that terminations
was illegal and arbitrary, but did not order back wages. Even this
order was not implemented for eight months and the petitioner (CC
Stores) filed an appeal and informed that her joining report could
not be entertained. She then approached the appellate authority,
the revising authority and finally the labour court and the high
court. The Court observed; "yet the petitioner had the obstinacy
not only to approach this court but to place the blame of
inordinate delay on the adjudicatory process. Such obstinacy
without the least regard of the financial implications could only be
indulged by a public body like the petitioner as those entrusted to
look after public bodies affairs do not have any personal
involvement and the money that they squander in such litigation is
not their own". In this case Supreme Court going step further and
observed:

"Public money has been wasted due to adamant

behaviour not only of the officer who terminated the
services but also due to cantankerous attitude adopted
by those responsible for pursuing the litigation before
the one or the authority. They have literally persecuted
her. Despite unequal strength the opposite party has
managed to service for such thoughtless acts of its
officers the petitioner society has to suffer and pay an
amount exceeding rupees three lakhs is indeed pitiable.
But considering the urgency and suffering of the
opposite party that amount can not be a proper
recompense. We, therefore, dismiss this petition as
devoid of any merit and direct the petitioner to comply
with the directions of the High Court within the time
 237

granted by it. We however, leave it open to the society

to replenish itself and recover the amount of back
wages paid by it to the opposite party from the personal
salary of the officers of the society who was responsible
for terminating the services of the opposite party" J 06

In the above para, the Supreme Court taught a lesson to the

officials who had dared to terminate the services of lady sales girls
for no reason at all. The Court gave direction that amount of back
wages be recovered from the salary of the official concerned.

The apex court in Air India Cabin Crew Association v.

Yeshawinee Merchant and ors.,^^"^ again held the issue of equality
as well as economic rights of the women. The services regulation
based on agreements and settlements fixing lower retirement age
for air -hostess between 50-58 years of age was held to be not
discriminatory based on sex alone. The court while discussing the
previous decision again discusses the provision of the Equal
Remuneration Act, 1976.

Section 4 of the Equal Remuneration Act, 1976 prohibits the

employer from paying unequal remuneration to male and female
workers for 'same work or work of a similar nature.' Section 5 of
the said Act prohibits discrimination by the employer while
recruiting men and women workers for 'same work or work of
similar nature. 'By Amendment introduced to Section 5 by the
Amendment Act No. 49 of 1987, employer has been prohibited
from discriminating men and women after their recruitment in the

106 Id.
107 AIR 2004 SC 187.
 238

matter of their conditions of service for the 'same work and work of
similar nature, ^o^'

(7) Succession/Maintenance

A new dimension has emerged with the judgement of the

Supreme Court in Vijaya Manohar Arbat v. Kashiro Sawai,^^'^ in
this case the married daughter has been put at par with a
responsibility to maintain her parents. The Supreme Court while
interpreting the Section 125 of the Criminal Procedure Code held
that married daughters, having sufficient means, are under
obligations to maintain their parents.

In Mst. Zohara Khatoon v. Mohd, Ibrahim,^^^ the question

before the court was that whether a Muslim wife who has obtained
divorce from her husband under Dissolution of Muslim Marriage
Act, 1939 entitled to claim maintenance under Section 125 of the
Criminal Procedure Code.

The Supreme Court on the interpretation of Section 125(1)

(b) suggest that a Muslim wife whose marriage being dissolved
under Dissolution of Muslim marriage Act 1939 may claim
maintenance from her former husband under the provision of
Section 125 of the Criminal Procedure Code 1973.

108 Section 5 after its amendment by Act No. 49 of 1987 reads as under:- No discrimination
to be made while recruiting men and women workers. - On and from the commencement
of this Act, no employer shall, while making recruitment for the same work of a similar
nature, [or in any condition of service subsequent to recruitment such as promotions,
training or transfer] make any discrimination against women except where the
employment of women in such work is prohibited or restricted by or under any law for
the time being in force.
109 Also see, M.J. Antony, "Burden of Man-Woman Equality before Law", Indian Express,
(30-03-1987), p. 6.
110 AIR 1981 SC 1243.
 239

The judicial trend reflected in Pratibha Rani v. Suraj

Kumar,^^^ equally reveals that the Supreme Court in India has
actively functioned as the protector of women proprietary interest
and afforded timely help to render justice to the women who has
been treated as the weakest creature in the society. The Supreme
Court in the present case rejected the theory of matrimonial home
and Stridhan becoming a joint property of the two spouses as
propounded by the High Court in Vinod Kumar v. State of
PunjabA^'^ The Supreme Court held that wife is the absolute owner
of her Stridhan and it is the indispensable duty of the husband to
keep it as trustee. The Court upheld the spirit of the philosophy of
Katyayanan which lucidly hold that, "Neither the husband nor the
son, nor the father, nor the brother has power to use or to alienate
the legal property of a woman and if of them, shall consume her
property against her consent he shall also pay a fine to the king".
The Supreme Court moved by the sad story of a helpless married
woman turn out by her husband, has rightly given birth to the
philosophy of absolute ownership of wife in her Stridhan and
subjected the husband to the criminal liability for
misappropriation her Stridhan property.^^^

The Section 125 and 127 of the Criminal Procedure Code are
applied on Muslim divorced wife is entitled to be maintained by her
former husband beyond the period of iddat provided that she
remained unmarried. There is no dispute about the application of
these provisions to Muslim wife to claim maintenance from her
husband when her marriage is subsisting; the controversy is on

111 AIR 1985 SC 628.

112 AIR 1985 SC 628.
113 The Indian Penal Code, I860, Sections 405 and 406. Also see, Section 482 of the
Criminal Procedure Code, 1973.
 240

applying the same to divorced wife claiming maintenance after the

expiry of period of iddat. This question was elaborately discussed
by Supreme Court in Shah Bano Begum, v. Khaivaja Mohammad
Ahmed khan,'^^'^ the brief facts of this case are, after fort>- three
years of marital life, wife had been thrown out of her husband's
house, and for about two and half years the husband paid
maintenance. When these payments ceased she petitioned under
Section 125 of Criminal Procedure Code for claiming maintenance.
The husband immediately dissolved the marriage by pronouncing
triple talaq and paid 3,000/- as deferred dower (Mahr) and a
further sum cover arrears of maintenance and maintenance for the
iddat period^ 15

The five judge's bench of the Supreme Court in this case

held that a Muslim husband having sufficient means must provide
maintenance to his divorced wife who is unable to maintain
herself. It rejected the contention of Muslim husband that Section
125 of the Criminal procedure code providing for the maintenance
of divorced woman, who is unable to maintain herself is
inapplicable to Muslim and also rejected that plea that
maintenance is payable only till the period prescribed under
Muslim personal Law .i.e. only to iddat period. It also rejected the
contention that deferred dower (Mahr) is a payment on the divorce
of wife and hence such payment under the personal law excludes
the payment of any maintenance by the husband to the wife.

114 AIR 1985 SC 945.

115 Iddat is the period during which it is incumbent upon a woman, whose marriage has been
dissolved by divorce and death of her husband to remain in seclusion and to abstain from
marrying another husband. The most approved definition of iddat is the term by the
completion of which a new marriage is rendered lawful. Iddat is described as a period
during which a woman is prohibited from marrying again al^er the dissolution of her first
marriage.
 241

In protest to this decision some religious leaders maintained

that the Supreme Court has no right to interpret the Quaran and
also argued that Shariat was divine and could not be interfered
with. When this decision was led to the controversy as to the
obligation of the Muslim husband to pay maintenance to the
divorced wife, the Parliament on the decision of Shah Banc's case
enacted Muslim Women (Protection of Rights on Divorce) Act, 1986.

In Yamunabhai v. Anantrao,^^^ the Supreme Court even

refused to accept the plea of the second "wife" to an order
maintenance under Section 125 of Cr.P.C. on the ground that the
marriage was void. No amount of social context and social justice
arguments on the light of such women could change the traditional
approach of the judiciary to the gender inequalities in the
situation. The Court was however persuaded to consider sanction
of interim maintenance pending decision of the validity of the
second marriage.

In Arun Vyas v. Anita Vyas,^^'^ in this case there was

complaint of alleging cruelty by husband or his relatives. Cruelty is
a co-offence and now starting point of limitation starts on last act
of cruelty. Wife was harassed and sent out of matrimonial home.
Complaints, even if time barred can be entertained if it gives unfair
advantage to the accused husband or results in miscarriage of
justice.

In Jasbir Kaur Sekgal v. District judge, Dehradun,^^^ the case

where the wife is maintaining the eldest unmarried daughter, her
right to claim maintenance would include her own maintenance

116 AIR 1988 SC 644.

117 AIR 1991 SC 2071.
118 _ (1997) 7 sec 7.
 242

and that of her daughter. This fact has to be kept in view while
fixing the maintenance pendent-lite for the life. Maintenance
pendent-lite as fixed by Supreme Court shall be payable from the
date of judgement of high Court.

In Ashok Hurra v. Rupa Bipin Javeri,^^'^ in this case petition

for divorce by natural consent filed by husband and wife together
satisfying provisions of Section 13-B(1) of Hindu Marriage Act,
1955 apply for passing decree of divorce filed by husband alone
under Section 13-B(2) six months after presentation of the divorce
petition. Application for withdrawal of consent for divorce filed by
wife after expiry of 18 months from the date of presentation of
divorce petition. Marriage found to have irretrievably breakdown
due to various factors though each one of such factors not itself
constituting great for divorce, husband contracting a second
marriage during pendency of divorce proceedings. Trial court
referring but single judge of High court granting divorce on ground
of irretrievable breaks down of marriage. But Supreme Court blue
being no chance of revival and continuance of the marital
relationship and there being a long lapse of time since filing of the
divorce in exercise of Supreme Court's jurisdiction under Article
142 of the Constitution warranted husband, a doctor and a well to
do person directed to pay Rs. 10 lakhs as maintenance and 50,000
as costs to wife.

In Rekha Deepak Malhotra v. Deepak Jegmohan Malhotra,^'^^

in this case, while granting interim maintenance to the wife
various factors would be taken into consideration, allegations
made by the wife about adulterous life of husband are substantive

119 (1997) 4 s e c 226.

120 AiR 1999 Bombay 291.
 243

in nature. Acts of cruelty not condemned by the wife. Plea of the

husband that wife left matrimonial have voluntarily is not tenable;
wife was entitled to interim maintenance.

However, the courts have taken a traditional and strictly,

literal view of provisions of the Muslim Women (Protection of Rights
or Divorce) Act, 1986, (MWA) according to which a Muslim divorces
women can claim maintenance under Section 125 Cr PC only if her
husband also opted for the appointer of this secular provision. This
approach of the judiciary is in contravention of its earlier liberal
inter predation of the Muslim Women Act where in the courts
accepted the argument that the provisions of section 125 of Cr PC
were in addition to MWA and therefore, a Muslim woman could
even alone, proceed either under MWA or Cr PC.

The controversial issue of liability of Muslim husband to

make reasonable and fair provision and paying maintenance to his
divorced wife beyond the iddat period was also raised before the
Supreme Court in Danial Latifi v. Union of India,^'^^ wherein the
constitutional validity of the Muslim Women (Protection of Rights
on Divorce) Act 1986 was also challenged.

The Supreme Court after hearing the argument concluded

that a careful reading of the provision of the Act of Section 3(1) (a)
would indicate that a divorced woman is entitled to a reasonable
and fair provisions for maintenance. It was stated that Parliament
seems to intended that the divorced woman gets a sufficient means
to livelihood, after the divorce and, therefore, the word 'provisions'
indicates that something is provided in advance for meeting some
needs. In support of its argument it is stated that no where the

121 AIR 2001 S C 3958; 2001 Cri.L.J. 4660.

 244

Parliament has provided that a reasonable and fair provisions and

maintenance is limited only for iddat period and not beyond it. It
would extend to the whole life of the divorced wife unless she gets
married for a second time. By upholding the validity of the Act
1986, Supreme Court rules that: ^22

• A Muslim husband is liable to make reasonable and

fair provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the
iddat period must be made by the husband within the
iddat period in terms of Section 3(1) (a).

• Liability of Muslim husband to his divorced wife

arising under Section. 3(1) (a) of the Act to pay
maintenance is not only confmed to Iddat period.

• Divorced Muslim women who have not remarried and

who is not able to maintain herself after iddat period
can proceed as provided under Section. 4 of the Act
against her relatives who are liable to maintain her in
proportion to the properties which they inherit on her
death according to Muslim law from such divorced
woman including her children and parents. If any of
the relatives being unable to pay maintenance, the
magistrate may direct the Wakf Board established
under the Act to pay such maintenance.

• The provisions of the Act do not offend Article 14, 15

and 21 of the Constitution of India.

122 Mohammed Zaheeruddin, "Muslim Divorced Woman and Her Right to Claim
Maintenance", The Criminal Law Journal, Vol. 109, July 2003, pp. 219-224.
 245

In Jagdish Fatwat v. Manju Lata,^'^^ although the Section 125 of

the Criminal Procedure Code does not fix the liability of the
parents to maintain children beyond the age of majority the
provision contained in Section 20(3) of the Hindu Adoption and
Maintenance Act justify the right of unmarried girl attain majority
to claim maintenance till her marriage. Therefore, an order passed
by the family Court which based on combined reading of Section
125, Criminal Procedure and Section 20(3) of the Hindu Adoption
and Maintenance Act should be upheld to avoid multiplicity of
proceedings.

In Shall V. Manoj Kumar,^'^'* if the Court convinced that a

deserted woman repeatedly knocking at the door of Courts and she
is on the verge of destitution the High Court can itself direct a
suitable amount of maintenance being awarded and to secure
compliance with its directions if subordinate Courts has failed to
granted or to enforce the same relief.

(8) Right to Privacy

In Sheela Barse v. State of Maharashtra,^"^^ Justice

Bhagwati, on behalf of a 3-judegs bench, entertained a writ
petition based on a letter addressed by a journalist, complaining of
custodial violence on women prisoners while confined in police
lock- up in the city of Bombay. The Court directed a fact- finding
team to visit the Bombay Central jail and interview the women
prisoners as to whether they had been subjected to any torture or
ill treatment and to submit a report. Based on the finding in the
report that there was no adequate arrangement for providing legal

123 (2002) 5 s e c 422.

124 (2004) SCC(Cri) 1401.
125 AIR 1983 SC 378.
 246

assistance to women prisoners, the Supreme Court Bench issued

directions:

• Lock - u p females only in female lock-up guarded by

female constables

• Interrogate female prisoners only in the presence of

female police officers among other directions.

In State of Maharashtra v. Madhukar Narain,^^^ without

referring to Article 2 1 , the Supreme Court has held that even a
woman of easy virtue is entitled to privacy and that no one can
invade her privacy as and when he likes.

In another case of Neera Mathur v. LLC,^^"^ in the instant

case, the petitioner, a probationer Assistant in L.I.C. gave a false
declaration regarding the last menstruation period, during her
medical examination, since the clauses in declaration were indeed
if not humiliating like the regularity of menstrual cycle, the term
therefore, the number of conceptions taken etc. the Supreme Court
found that such embarrassing questions violate the right to privacy
of the lady employees and further directed the corporation to delete
such columns in the declaration. The court setting aside her
termination, noted:

The modesty and self-respect may perhaps preclude the

discourse of such personal problems like whether the
menstrual period is regular or painless, the number of
conceptions taken place, how many have gone full term,
etc. The Corporation would do well to delete such

126 AIR 1991 SC 207.

127 AIR 1992 SC 392.
 247

columns in the declaration. If the purpose of the

declaration is to deny maternity benefits to a lady
candidate who is pregnant at the time of entering into
services (the legality of which we express no opinion
since not challenged) the Corporation could subject her
to medical examination including a pregnancy testJ^^

{$) Social Status

In All India Democratic Women's Association v. Union of

India,^'^'^ the Supreme Court dealt with an incident relating to the
evil practice of committing and glorifying 'sati'. In a Public Interest
litigation, the Court, while dealing with the after -development of
'sati', alleged to be committed by Roop kanwar in Rajasthan, held
that the restrain imposed on holding Chunry ceremony, should
continue without any variation, to prevent glorification.

In Chetna Legal Advisory W.C.D Society v. Union of India,^^^

the Pre-Natal Diagnostic Techniques (Regulation and prevention of
Misuse) Act, 1994 provides for regulation of use of techniques and
prevents misuse of techniques and prevents misuse of sex
determination. In this case the Apex Court had taken note of
National programmes of action for reduction of female foeticide and
infanticide.

In CEHAT v. Union oflndia,^^^ the Supreme Court referred to

the repercussion of unhindered female infanticide effecting overall
sex ratio in various States. The Court issued directions to central
government, state Government, Union territories and appropriate

128 Ibid. p . 395.

129 AIR 1989 SC 1280.
130 (1998)2 sec 158.
131 AIR 2001 SC 2007.
 248

authorities for the implementation of the enacted Act and made the
registration of the chnics with ultrasound machines mandatory
and directed the State Governments to take suitable action for
creating awareness in public.

It is unfortunate that law which aims at preventing such

practices is not implemented effectively since it came into force in
January 1996. Therefore, the Non governmental organisations
approaches the Apex Court for fresh guide lines. The Supreme
Court issued certain directions on the basis of various provisions
under this Act.

(l)The Central Government is directed to create public

awareness against the practice pre- natal determination of
sex and female foeticide, through it own programme or
Central Supervisory Board (CSB) as provided under Section
16(iii)ofthePNDTAct.

(2) Meeting of the CSB will be held at least in six months.

Section 7 empowers the Central Government to appoint ten
members, which includes eminent medical practitioners
including eminent social scientists and representatives of
women welfare organisations.

(3) Public would have access to the record maintained by

different bodies, under rule 17 (3) of the Act.

To curb dowry death Supreme Court has given certain

indication in Kundula Bala Subrahmanyam v. State of Andhra
Pradesh,^^^

132 1993 Cri.L.J. 1635.

 249

"Laws are not enough to combat the evil, (i) A wider

social movement of educating women of their rights. To
conquer the menace, is Needed more particularly in
rural areas where women are still largely uneducated
and less aware of their rights and fall an easy prey to
their exploitation "

It is expected that

(ii) the Courts would deal with such cases in a more

realistic manner and not allow the criminals to escape
on account of procedural technicalities or insignificant
lacunae in the evidence as otherwise the criminals
would receive encouragement and the victims of crime
would be totally discouraged by the crime going
unpunished.

(Hi) The Courts are expected to be sensitive in case

involving crime against women.

The Supreme Court in State of Himachal Pradesh v. Nikku

Ram,^^^ held that when the Dowry prohibition Act was enacted the
legislature was well aware of the fact that demand for dowry are
made , and indeed very often, even after the marriage has been
solemnised, and this demand is founded on the factum of the
marriage only. Such demands therefore, would also be
consideration for marriage and comes under the definitions of
dowry.

133 1995 s e c (Cri) 1090

 250

In Reena Aggarwal v. Anupam,^^'^ the Dowry Prohibition Act

has made punishable the giving or taking or abetting the dowry.
The punishment provided under the act is minimum imprisonment
for five years, which may reduced to less than five years if the
court gives adequate and special reasons for it. It also provides for
the fine which shall not be less than fifteen thousand rupees or the
amount of the value of such dowry, whichever is more.

(10) Uniform CivU Code

The political and legal goals of a uniform civil code (UCC) are
not co-terminous. The legal goals focus on the hardships suffered
by women in the legal order, the discrimination against them and
the achievement of a common standard of gender justice. To an
equal measure the legal goals envisage simplification of laws. The
Supreme Court's espousal of the Uniform Civil Code is based on
the above objectives. Regrettably, often the apex court's position is,
deliberately or otherwise, misconstrued and criticized - even in
feminist writings!^^5

In Shah Bano^^^ the court tried to enforce within the existing

framework of the provisions of the Cr PC, the common standard of
prevention of destitution of neglected wives and divorced wives in
holding that a Muslim husband was bound to maintain his
divorced wife under sections 125 to 127 of the code. Referring to
the UCC, the court stated:

'...a beginning has to be made if the constitution is to

have any meaning. Inevitably, the role of reformer has

134 AIR 2004 SC 1418. Also see, Dowry Prohibition Act, 1961, Indian Penal Code, section
304(b), 498(a) and Indian Evidence Act, 1872, section 113(b).
135 See, supra note 53,p. 308.
136 See^ Mohd Ahmed Khan v. Shah Bano Begum. AIR 1985 SC 945.
 251

to be assumed by the Courts, because, it is beyond the

endurance of sensitive minds to allow injustices to be
suffered when it is so palpable. But piecemeal attempts
of Courts to bridge the gap between personal laws
cannot take place of Common Civil Code. Justice to all is
a far more satisfactory way of dispensing justice than
justice from case to case.'

In Jorden Diengdeh v. S.S. Chopra, the wife was a Christian

belonging to the Khasi tribe of Meghalaya and an officer in the
Indian Foreign Service. The husband was a Sikh. The parties were
married under the Indian Christian Marriage Act, 1872. The wife
filed a petition on the ground of nullity under the Indian Divorce
Act, 1869. Though the marriage had broken down completely, the
wife was without a remedy owing to the lack of provision for
divorce on the ground of mutual consent or irretrievable
breakdown of marriage. In this context Chinnappa Reddy, J,
observed:

'It is thus seen that the law relating to judicial

separation, divorce and nullity of marriage is far from
uniform. Surely the time has come now for a complete
reform of the law of marriage and make a uniform, law
applicable to all people irrespective of religion or caste'.

In Sarla Mudgal v. Union of India,^^"^ caused tremors in

many quarters. It was a PIL filed by a women's welfare organization
called Kalyani working for the welfare of women in distress. The
organisation in its PIL drew attention to the sufferings of women
whose husbands indulged in fake conversions to Islam for

137 AIR 1995 SC 1531

 252

contracting bigamous marriage. Often they neglected and

abandoned their first wives, but there were instances when the
second wives were also the victims of such neglect. The apex court
held that such a marriage by the husband after his conversion to
Islam, without having the first marriage dissolved would be void
under section 494 of the IPC and the apostate would be guilty of
bigamy. Kuldip Singh, J., in the course of his judgement said:
"Article 44 is based on the concept that there is no necessary
connection between religion and personal law.'^38 He added: It has
been judicially acclaimed in the United States of America that the
practice of polygamy is injurious to "public morals"'. R.M. Sahai,
J., in his separate concurring opinion emphasized the aspect of
human rights for women under a Uniform Civil Code, He noted:

Therefore a unified code is imperative both for the

protection of oppressed and promotion of national unity
and solidarity. . . . The government would be well
advised to entrust the responsibility to the Law
Commission examine the matter and bring about a
comprehensive legislation in keeping with the modem-
day concept of human rights for wom^enA^'^

Kuldip Singh, J's opinion may be faulted for its over-

generalization of equality in the Hindu personal law and its
telescoping the legal and political goals of UCC. But in fairness to
the judge it must be said that he is right in so far as matrimonial
reliefs under the HMA are concerned, as they are based on gender
equality; there is secularization of the law of adoption under the
Hindu Adoptions and Maintenance Act, 1956 and if further

138 Ibicl.p\53S.
139 Ibid.,}p.\5A0.
 253

secularisation and unification of law of adoption had been

installed, In the law of succession, at least in the five southern
states serious attempts have been made to remove gender
discrimination. Further it is too much to say that whenever a
question of gender discrimination under Muslim law comes before
the court, a roving inquiry should be undertaken by the judges
into discrimination under the Hindu and Christian personal laws
also to mollify the hurt egos of some groups.

(ii) Political Empowerment of Women and Judicial Attitude

In Dattatry Motiram v. State of Bombay,^"^^ the Bombay

Municipal Borough Act, 1925 providing for reservation of seats for
women in the election to the municipality was challenged. It was
argued that discrimination in favour of a particular sex is
permissible provided it is not only on the ground of sex and should
also based on the other consideration and also that Article 15(3)
must be read to mean that only those special provisions for women
are permissible which do not permit discrimination against men.

The Court rejected the argument and observed that, the

State may discriminate in favour of women against men as a result
of the joint operation of clause (1) and (8) of Article 15, but may not
discriminate irt favour of men against women. Thus the legislation
do not offend against Article 15(1) by reason of Article 15(3). The
court also pointed that even today women are more backward than
men and it is a duty of the state to raise the position of the women
to the level that men.

140 AIR 1953 Bom. 311.

 254

The positive attitude of judiciary in favour of securing

political rights is also quite visible from Rama Chandra v. State of
Bihar,'^'^^ where the Court upheld the validity of Section 5(l)(v)(9) of
Bihar Panchayat Samities and Zila Parishad Act 1961 with the
justification that conferment of right to participate in political
sphere was essential for women to be elevated to the status of men
in the society. The Court, while supporting the cause of women
daringly, added:

"women have taken part in freedom struggle and on

times they are also elected to various bodies including
Parliament and State Legislatures, but still they can not
be said to have reached the point where they can be
said, to be at par with men in this matters."

The words of the Supreme Court expressed in the above case

make everybody to realise that despite many legislative measures,
the women in India are still not in a position to reap satisfactorily
the statutory benefits with the result that they are still quite far
away to join the mainstream of the national life.

The Supreme Court in Om Narayan Agarwal v. Nagar Palika,

Sahajanpur,^'^'^ held that under the U.P. Municipalties Act, which
provides nomination of one or two women members on Municipal
Board held to be valid under the Article 15(3) of the Constitution.

According to the provisions of the Article 243 D and T, the

Supreme Court of India upheld the validity of reservation of certain
posts exclusively for the women. ^'*3 In Kasambai F. Ghanchi v.

141 AIR 1966 Patna 214.

142 AIR 1993 SC 1440.
143 See, Union of India v. V.P. Prabhakaran. ( 1997) 11 SCC 638.
 255

Chandubai D. Rajput,^'^'^ the Supreme Court held that a Councillor

of Municipality who belonged to a Backward class but had been
elected to the municipality from an unreserved seat, could stand
for election for the post of president of the Municipality which was
reserved for a backward class candidate under the Gujarat
Municipality which was reserved for a backward class candidates
under the Gujarat Municipalities ( Reservation of Scheduled Caste,
Scheduled Tribes, Backward Class and Women for Office of
President) Rule 1994.

C. Sum-up

The foregoing discussion makes it abundantly clear that the

Courts have played the role of a catalyst in ensuring that the
women are protected in an effective manner in every sphere in view
of their vulnerability. However, this kind of judicial attitude should
be a continuous process because "if the past, constitutional policy
making by the judiciary has been an essential matrix of human
rights, as government's regulatory powers extended even more
widely and deeply into the fabric of our society, it will certainly be
no less essential in future". Thus, it could be seen that the judicial
cognizance and recognition of various human rights of women,
right against gender discrimination, right against sexual
harassment, right against stalking, right against domestic violence,
right to termination of pregnancy, right to sexual health and right
against female genital mutilation have become legally enforceable
rights.

144 AIR 1998 SC 815. In this case the Court overruled Saraswati Devi v. Shanti Devi, AIR
1997 SC 347, decision wherein the Apex Court had held that the woman candidate
belonging of Scheduled Caste but elected from ward reserved for general category of
women, could not be elected to a seat of President from ward reserved for the SC
candidate.
 256

Given the fact that Constitution of India demands gender

justice on terms of equality and dignity, and given the fact that
Indian judiciary has come to play a decisive role in government
based on fundamental rights and rule of law, what needs to be
addressed is how the performance of judiciary in this regard can be
further improved towards advancing the realization of the
constitutional mandate of justice to women. Judicial performance
in this regard involves not only few landmark decisions of superior
courts against discriminatory practices but extends to the entire
range of adjudicatory practices at staff of lawyers and courts
towards women's issues and the extent of participation of women
get from the system as a whole though progressive judgments from
superior courts do provide the direction for change in substance
and procedure. By declaring the year 2005 as a year for judicial
excellence, the Chief Justice of India alerted the entire judicial
establishment to make a difference in the coming days and months
on the quality and efficiency of the system. It is a unique occasion
for the courts in India to give a push to the unfinished agenda on
gender justice in terms of the constitutional promises and the
equal justice under law.

In sum, one can conclude that the role of the judiciary in the
first 30 years was confined mainly to work for a limited
government, to defend the fundamental rights and more of the
right to property, respect the principle of checks and balances
provided in the Constitution of India explicitly or implicitly,
generally refraining from political or policy making activity and
upholding this as a right of the legislature or the executive. The
approach had been mainly of self restraint and remained, more or
less, impervious to the dominant political discourse or policy
 257

domains around and remained unaffected by the wind of change

blowing across the country and was able to work in a manner
unintruded by the 'social ambiance' of its operation. Last 30 years
witnessed a sea change in attitude of Indian judiciary and it has
done much for the empowerment of women in every matter
brought before it or noticed by it.