As the Supreme Court marks 70 years of its establishment, the critical role it has played in the development of rights jurisprudence and expanding progressive, libertarian and democratic values are worth examining. The influence of the court in public consciousness is no longer confined to its position as the final arbiter of disputes, but also as a front line protector of Constitutional values. The Supreme Court has often responded to mobilisation by rights groups and civil society members in general but in many cases has also taken upon itself the responsibility to intervene and correct deep inequities, cutting across caste, class and gender.
As India has remained sequestered, to a great extent, from the
organised feminist movements of the
20th and 21st centuries in the West, the expanding sphere of
women in civil society, politics and the armed forces in India has
been marshalled and punctuated by various judgments of the apex
court. These judgements have slowly but surely chipped
away at some of the anachronistic customs and norms that have
long kept women on the sidelines for long and have paved the way
for the executive and the legislature to take up steps to uphold
women's rights in the country.
A landmark judgment in protecting women's rights in the context of the family is the SC judgment in Vineeta Sharma v Rakesh Sharma (2020) where the court held that daughters would have equal coparcenary rights in Hindu Undivided Family property (HUF) by virtue of their birth and could not be excluded from inheritance, irrespective of whether they were born before the 2005 amendment to the Hindu Succession Act, 1956.
Before the 2005 amendment, there was a marked discrimination in determining the rights of a son and daughter in claiming inheritance. A son could claim a share in HUF property as a matter of right, while a daughter, ceased to have any such right upon her marriage as she was considered to be a part of her husband's family.
Even after the amendment, judgments of various courts and the Supreme Court itself in Prakash v Phulvati (2016) held that a daughter could be eligible to be a co-sharer only if the daughter and the father were alive as of September 9 2005 (the date of the amendment). The Supreme Court, by virtue of the Vineeta Sharma judgment, extended the benefit of the 2005 amendment and legitimised the position of women as an integral part of their father's family.
The court has also sought to provide for the safety of women at workplace by protecting them from sexual harassment. The court framed detailed guidelines in the Vishakha v State of Rajasthan (1997) case for employers to follow to provide a mechanism for redressal of grievances of employees. These guidelines were eventually formalised as legislation with the passing of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, a vital law to protect millions of women who enter the country's workforce every year.
The Supreme Court also held in The Secretary, Ministry of Defence v Babita Puniya & Ors. (2020) case that all women army officers are eligible for permanent commissions, allowing them to be in commanding roles. Women officers are now on par with their male counterparts when it comes to promotions, rank, benefits and pensions, thereby fortifying their position in the defense sector, an institution with rigid gender norms.
In Shayra Bano v Union of India (2017) case, the court declared that the practice of instant triple talaq (talaq-e-bidat) is against the basic tenets of the Quran. Talaq-e- bidat is a practise which gives a man the right to divorce his wife by uttering ‘talaq' three times in one sitting, without his wife's consent.
The court directed the Centre to pass a legislation in this regard, which led to the Muslim Women (Protection of Rights of Marriage) Act, 2019.
As per the Act any Muslim husband who pronounces triple talaq on his wife shall be punished with imprisonment which may extend up to to three years and fine. The judgment also saw a heartening departure from the conservative approach taken by the court in Mohd. Ahmed Khan v. Shah Bano Begum (1985).
The court also departed from its traditional recalcitrance in issuing judgments in matters of faith while passing its verdict in the Sabrimala (2019) issue. The court held that devotion cannot be subjected to gender discrimination and permitted the entry of women of all ages into the Sabarimala Temple despite a centuries old custom banning the entry of menstruating women. .
The court also affirmed the right of a woman in exercising her sexual freedom in personal sphere with the Joseph Shine v Union of India (2018) judgement wherein the court placed its reliance on the right to privacy flowing from Article 21 and, declared as unconstitutional, Section 497 of the Indian Penal Code, which gives a husband the exclusive right to prosecute his wife's lover even as similar rights were not conferred on a wife to prosecute the woman with whom her husband has committed adultery.
The then Chief Justice Deepak Misra rightly observed that Section 497 treated a married woman as nothing more than her husband's property as adultery is only an offense when it happened without the consent of the married man and the woman has no say in the matter.
While the judgments as illustrated above point to material headways made to safeguard the rights of women, the surging cases of violence against women and their continuing diminution in various arenas, cannot but lead to the conclusion there is still dissonance between the framing of laws and their implementation on the ground.
As the importance of women's rights in public and private sphere continues to grow, it is imperative that the law too continues to evolve, accommodating their aspirations and desires.
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