Roman Saini is teaching live on Unacademy Plus
Women's Position in Indian Society: Landmark SC Verdicts in 2017-18 Lesson-22 By Dr. Roman Saini
Conversation with the constitution- Dignity, Religion, and Morality The conferment of a social status based on patriarchal values, or a social status based on the mercy of the men-folk are absolutely incompatible with the letter and spirit of the Constitution of India. Hence, "gender justice" is a constitutional goal of overwhelming importance and magnitude. And without accomplishing the same, half of the country's citizenry, would not be able to enjoy to the fullest their rights, status and opportunities. Hence, it is state or Court's responsibility to widen, and not to narrow, the "right of equality and dignity" contained in the constitution and international declaration as well . . . .
Dignity: Is Article 15(3) protect the Section 497 and Sabarimala Temple restrictions? According to court interpretation, Article 15(3) does not exist in isolation. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3). Further, there is classification between men and women as separate classes, there cannot be any further sub-classification among women on the basis of physiological factors such as menstruation for granting right to pray. . * . .
In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that she was 'seduced' into a sexual relationship But Article 15(3) when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries . . Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. * Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women.
Religion: Is the customary law justiciable? The status of Muslim women under customs and usages adopted by Muslims, were considered to be oppressive towards women. Prior to the independence of India, Muslim women organisations condemned customary law, as it adversely affected their rights, under the Shariat . According to court, Customary Law is a misnomer as it has not any sound basis to stand upon and is very much liable to frequent changes. Therefore, they cannot be expected to attain at any time in the future that "certainty and definiteness" which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful * . .
Is SC can intervention in religious matters? According to court's interpretation, the Court being a constitutional court is obliged to perform its constitutional responsibility under Article 32 of the Constitution . As a protector, enforcer, and guardian of citizens' rights under Articles 14, 15 and 21 of the Constitution. Therefore, in discharge of the above constitutional obligation, the Court ought to strike down, the derogatory practices against women of any religion or age (talaq-e-bidda , adultery etc.). That practices are violative of the fundamental rights and constitutional morality contemplated by the provisions of the Constitution.
Moreover, the cardinal principle of interpretation of the Constitution is that all provisions of the Constitution must be harmoniously construed, so that there remained no conflict between them. Therefore, Articles 14 and 15 on the one hand, and Articles 25 and 26 on the other, must be harmoniously construed with each other, to prevent discrimination against women, in a manner as would give effect to equality, irrespective of gender. Hence, it was contended, that it was totally irrelevant whether 'personal law' was founded on custom or religion, or was codified or uncodified. . If it is law and "rule of decision", it can be challenged under Part Ill of the Constitution- Fundamental Rights. .
What is Constitutional Morality? It has been defined by the supreme court in the respective judgements and important extract is below: The principle of constitutional morality basically means to bow down to the norms of the Constitution. It is not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. * . o . It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. .
. "Commitment to the Constitution" is a facet of constitutional morality According to SC, the democratic values survive and become successful where the people at large and the persons in charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy. Dr Ambedkar had, throughout the debate of constituent assembly, felt that the Constitution can live and grow on the bedrock of constitutional morality. He said: "Constitutional morality is not a natural sentiment. It has to be cultivated We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic 1I
Women's Rights Given in Constitution Gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality, under Article 14. . The Constitution postulates through Article 15, a clear restraint on discrimination, on the ground of sex The rights of all woman to human dignity, social esteem and self-worth are vital facets of a woman's right to life with dignity, under Article 21 of the Constitution . . The clause (e) of Article 51-A of the Constitution fixes the duty of every citizen as 'to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linquistic and regional or sectional diversities to renounce practices derogatory to the dignity of women .
Again, the International Convention on Economic, Social and Cultural Rights (ICESCR) in 1979 provided for elimination of all forms of discrimination against women . The International Convention bill o rights for women was instituted in 1981 and India had also endorsed the same. The General Assembly of the United Nations adopted a declaration in 1986 on "The Development of the Right to Development" in which India played a crusading role for its adoption and ratified the same. Its preamble recognises that all human rights and fundamental freedoms are indivisible and interdependent. . .