Gender Justice Through The Lens Of Transformative Constitutionalism - The Role Of Indian Constitution
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Category: Constitutional & Human Rights
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GENDER JUSTICE THROUGH THE LENS OF
TRANSFORMATIVE CONSTITUTIONALISM: THE ROLE OF INDIAN CONSTITUTION
Smriti Chandra, Gujarat National Law University
ABSTRACT
In India the patriarchal constructs are so deeply imbedded in the society that women and sexual minorities are still a subject of stigmatization and discrimination. However, the Indian Constitution recognizes women at an equal status and provides special protection for them but there is more than just the constitutional provision that can give way to empowerment of the marginalised. A transformative approach towards the interpretation of Constitution can drive in social change by imbibing a sense of dignity of individual. This paper explores the role of Transformative Constitutionalism in promoting Gender Justice. Transformative Constitutionalism seeks to contextualize Constitutional Morality to address structural inequalities and empower marginalized groups.
The research identifies a gap in the literature on the effectiveness of Transformative Constitutionalism in promoting Gender Justice in India and poses research questions to tap this potential further. The paper highlights the significance of interpretational approach of the court in promoting Gender Justice and the potential of Transformative Constitutionalism to address the existing disadvantageous position especially of the Sexual Minorities that perpetuate gender-based injustices in India. The paper aims to address this gap by examining the potential of transformative constitutionalism in addressing key issues related to Gender Justice, such as gender-based violence, unequal access to education and employment opportunities, and discrimination against women.
The paper poses the following research questions: What are the key constitutional provisions and landmark judgments related to gender justice in India? How has Transformative Constitutionalism contributed to promoting Gender Justice in India? And it underlines the role of Constitutional Morality in bringing about a societal transformation. This paper also underlines the areas having the potential of transformation through judicial ruling and legislative enactments. This paper highlights the constitutional framework and it marks the trajectory of judgements that guide towards upholding Constitutional Morality as opposed to the more prevalent Social Morality Keywords: Transformative Constitutionalism, Gender Justice, Sexual Minorities. Constitutional Morality, Social Morality.
INTRODUCTION
Transformative Constitutionalism is a legal theory that seeks to transform society through constitutional reform and implementation by promoting social justice, human dignity, and democratic participation. 1 It emerged as a response to the limitations of liberal constitutionalism, which focused mainly on limiting state power and protecting individual rights. 2The concept of transformative constitutionalism has been recognized and applied by constitutional courts in several countries, including South Africa, Brazil, and India. In South Africa, the Constitutional Court has described transformative constitutionalism as a "living instrument" that seeks to "reconstruct a society that has been systematically unjust".
3 In India, the Supreme Court has emphasized the importance of transformative constitutionalism in promoting the ideals of justice, liberty, and equality enshrined in the Constitution. 4This paper explores the concept of transformative constitutionalism and its role in promoting gender justice and human dignity. Gender jurisprudence in India has evolved over time multi-dimensionally. It initiates from the rights of women toward equality of status and special protections granted by the constitution under Article 15(3). 5 Further it goes to the special protection in personal laws, be it the case of hindu woman’s right to own property,6 inherit property,7 or a Syrian Christian woman’s right to inherit property.
8 Also, the right to be treated in a just and fair manner within her family of a Muslim woman, not to be subjected to the cruelties of an uncertain triple talaq,9 and her entitlement towards a fair share of maintenance in case of a divorce. 10 It also extends to the right of a hindu woman to be a natural guardian as she naturally is,11 and the right of a single
1 Karl Klare, Legal Culture and Transformative Constitutionalism, 14 SAJHR 146, 150 (1998).
2 Id. at 151
3 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC) para 125
4 State of Kerala v. N.M. Thomas (1976) 2 SCC 310.
5 Constitution of India Article 15(3).
6 V. Tulasamma & Ors. Vs. V. Sesha Reddi 1959 AIR 577
7 Veeneta Sharma vs. Rakesh Sharma (2019) 6 SCC 162
8 Mary Roy Etc v State of Kerala and Others 1986 SCR (1) 371
9 Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC)
10 Mohd. Ahmad Khan v. Shah Bano Begum 1985 (3) SCR 844
11 Githa Hariharan v. Reserve Bank of India (1999 2 SCC 228)
hindu woman to take in adoption a child and to give in adoption. An equal right to worship was recognised by the Supreme Court as opposed to the right of a deity. 12 Beyond the personal laws an Indian woman has fought for a right to be in service equally as men13 and a right to hold permanent commission in defence services. 14 The right of a woman to have a bodily autonomy, where she can decide over her reproductive choice and her right toopt for abortion15 in she so desires within certain reasonable limitations. A right to the choice of a marriage as recognised. Right of a woman to obtain maternity leave during her pregnancy16 have also thus been recognised. Gender justice has another facet to it that reaches even to the sexual minorities. The right of persons and LGBTQ to identify with a sexual identity was recognised by the supreme court way back in 2013.
17 In the case of (Retd) Justice K. S. Puttaswamy v. UOI, the Supreme Court recognised an individual’s right to privacy and observed with respect to sexual minorities that “Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination,”18 The Supreme Court took a step further to recognise a right to sexual autonomy while striking down section 377 of Indian penal code that penalised same-sex union19 and held that a person has a right to choose his sexual identity which has to be free from state interference.
This research paper aims to explore gender justice through the lens of transformative constitutionalism in India, with a specific focus on the role of the Indian Constitution. The paper will analyze the constitutional provisions related to gender justice, the landmark judgments of the Supreme Court and other jurisdictions related to gender justice, and the potential of transformative constitutionalism in promoting gender justice in India.
12 Indian Young Lawyers’ Association v State of Kerala (2019) 11 SCC 1
13 Air India v Nargesh Meerza 1982 SCR (1) 438
14 The Secretary, Ministry of Defence V. Babita Puniya & Ors. (2020) 7 SCC 469
15 Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
16 Deepika Singh vs Central Administrative Tribunal 2022 SCC OnLine SC 1088
17 National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
18 Retd. Justice K S Puttaswamy v Union of India (2017) 10 SCC 1.
19 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
The research paper will draw upon existing literature on gender justice, constitutional law, and transformative constitutionalism in India. Relevant sources include the Indian Constitution, relevant case laws, and scholarly articles on gender justice and constitutionalism. The research paper aims to provide insights into how the Indian Constitution can play a crucial role in promoting gender justice through transformative constitutionalism areas where the requirementof judicial interpretation is felt. Overall, gender jurisprudence in India has evolved through the interpretation of constitutional provisions by the Indian judiciary. The judiciary has played a crucial role in promoting gender justice by recognizing the right to gender equality, reproductive autonomy, access to justice, sexual autonomy, right to self-determination and others.
EVOLUTION AND DEVELOPMENT OF TRANSFORMATIVE CONSTITUTIONALISM IN ENSURING GENDER JUSTICE IN INDIA CONSTITUTIONAL FRAMEWORK The Indian Constitution guarantees fundamental rights to all citizens, including the right to equality (Article 14), the right to life and liberty (Article 21), and the right to nondiscrimination based on gender (Article 15). However, the implementation of these rights has often been challenged by systemic discrimination and violence against women. In response to these challenges, the Indian Supreme Court has developed a body of jurisprudence on gender justice, drawing on the principles of Transformative Constitutionalism. JUDICIAL PRONOUNCEMENTS One of the earliest cases in which the Indian Supreme Court used Transformative Constitutionalism to ensure gender justice is State of Maharashtra v. Madhukar Narayan Mardikar (1991).
20 In this case, the Court struck down a law that denied women the right to be appointed as public prosecutors, holding that it violated the constitutional right to equality. The Court's decision in Mardikar helped to establish the principles of substantive equality and non-discrimination in Indian constitutional law and paved the way for further legal recognition of women's rights in India.
20 State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207.
Another important case in the evolution of Transformative Constitutionalism in gender justice is Vishaka v. State of Rajasthan (1997). 21 The case concerned sexual harassment of women in the workplace, which was not recognized as a legal issue in India at the time. The Court held that sexual harassment in the workplace violated the constitutional rights to equality, life, and liberty, and developed guidelines for preventing and redressing sexual harassment in the workplace. The Court's decision in Vishaka was a landmark in the development of gender jurisprudence in India, and has had a significant impact on the legal and social recognition of sexual harassment as a form of gender-based violence. In Anuj Garg v. Hotel Association of India (2008),22 the Indian Supreme Court extended the principles of gender equality and non-discrimination to the hospitality industry.
The case concerned the denial of employment opportunities to women in the hospitality sector, which the Court held was discriminatory and unconstitutional. The Court's decision in Anuj Garg helped to establish the principles of substantive equality and non-discrimination in employment law, and has had a significant impact on the legal recognition of women's rights in India. One of the very important developments that left ripples in the field of gender justice is by the pronouncement of the judgement in the case of National Legal Services Authority v. Union of India23 In this case, the Supreme Court recognized the rights of transgender individuals under the Constitution, including the right to equality and the right to live with dignity.
The Court used Transformative Constitutionalism to promote gender justice and to recognize the importance of addressing the systemic inequalities and discrimination faced by transgender individuals in India. More recently, the Indian Supreme Court has continued to develop Transformative Constitutionalism in the field of gender justice. In Navtej Singh Johar v. Union of India (2018),24 the Court struck down a colonial-era law that criminalized homosexuality, holding that it violated the constitutional rights to equality, dignity, and freedom of expression. The Court's decision in Johar was a significant step forward in the recognition of LGBTQ+ rights in India, thereby demonstrating the potential of Transformative Constitutionalism to promote
21 Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
22 Anuj Garg v. Hotel Association of India, (2008) 3 SCC
23 National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
24 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
gender and social justice and human dignity. In conclusion, the evolution of Transformative Constitutionalism through cases in the field of gender justice in India has had a significant impact on the legal and social recognition of women's and LGBTQ+ rights in India. The Indian Supreme Court's decisions in Mardikar, Vishaka, Anuj Garg, and Johar25 have helped to establish the principles of substantive equality and non-discrimination in Indian constitutional law, and have demonstrated the potential of Transformative Constitutionalism to promote social justice and human dignity.
ANALYSIS
OF THE COURT’S APPROACH TOWARDS SOME SPECIFIC RIGHTS REPRODUCTIVE AUTONOMY AND ABORTION RIGHTS The Supreme Courts of India, South Africa, and Brazil have all issued judgments related to reproductive autonomy and abortion rights. While the specific legal contexts and outcomes of these cases differ between the countries, there are some commonalities in their approaches to promoting reproductive autonomy and abortion rights. In India, the Supreme Court has recognized the right to reproductive autonomy as a fundamental right, and has issued several judgments related to abortion rights. In the case of Suchita Srivastava v. Chandigarh Administration (2009),26 the Court held that women have the right to make decisions about their own bodies, including the right to terminate a pregnancy.
The Court recognized the importance of protecting women's health and autonomy in relation to reproductive decisions, and struck down a law that required a husband's consent for a woman to undergo an abortion. In the case of K. S. Puttaswamy v. Union of India,27 the Court recognized the right to privacy as a fundamental right, which includes the right to make decisions about one's own body. EQUAL RIGHT TO INCOME AND PROPERTY Supreme Court held that Muslim women have the right to equal inheritance under Muslim personal law, recognizing the importance of promoting equal rights to property for women. In the case of Kalyani v. Narayanan (2008),29 the Court held that a wife has an equal right to her husband's property, recognizing the importance of promoting equal rights to property within marriage.
PROTECTION AGAINST DOMESTIC VIOLENCE In India, the Constitution recognizes the right to life and personal liberty as fundamental rights, and guarantees the right to equality before the law. The Protection of Women from Domestic Violence Act, 2005 provides a legal framework for the prevention and redressal of domestic violence. The Act recognizes various forms of domestic violence, including physical, sexual, and emotional abuse, and provides for the establishment of protection officers, service providers, and shelters for victims. The Indian Supreme Court has also issued several judgments recognizing the importance of protecting women from domestic violence. In the case of Vishaka v. State of Rajasthan (1997),30 the Court recognized the need for measures to prevent and redress sexual harassment in the workplace. In the case of Indra Sarma v. V. K. V.
Sarma (2013),31 the Court recognized the need for broader legal protections against domestic violence, and held that the right to life and personal liberty includes the right to live with dignity and without fear of violence. RIGHT TO SEXUAL AUTONOMY AND IDENTITY consensual same-sex sexual activity, recognizing the importance of promoting sexual autonomy and equality. PROTECTION AGAINST MARITAL RAPE Marital rape is a highly sensitive and controversial topic around the world, and the laws surrounding it vary greatly from country to country. In India, for example, marital rape is not considered a crime unless the wife is under the age of 18,34 whereas in Brazil, it is illegal for a husband to force his wife to engage in sexual activity against her will.
South Africa has some of the most progressive laws on marital rape, where it is considered a criminal offense regardless of the age of the victim or the relationship between the perpetrator and the victim. According to a study by the International Centre for Research on Women, in India, "only forced intercourse with a wife who is under 18 years of age is considered rape". This means that if a husband forces his wife to engage in sexual activity against her will and she is over the age of 18, it is not considered a crime. This is a major issue in India and has been a topic of debate for many years. CHALLENGES, LIMITATIONS AND SUGGESTIONS Gender justice has been a key focus of transformative constitutionalism, as societies seek to address historical and ongoing gender-based discrimination and violence.
However, there are several challenges and limitations to achieving transformative constitutionalism in gender justice. One of the main challenges is the lack of political will and commitment to implementing gender justice. Despite constitutional guarantees of equality, many governments fail to allocate sufficient resources or prioritize gender justice in policy and decision-making. This can lead to a gap between constitutional principles and their practical implementation, hindering progress towards gender justice. 35 Another challenge is the persistence of patriarchal attitudes and beliefs, which can undermine 34 See exception 2 to section 375 of IPC that absolves a man committing rape on his own wife above the age of
18 years.
35 Kabeer, N. (2015). Gender equality and women’s empowerment
A critical analysis of the third millennium development goal. Gender & Development, 23(2), 167-181. efforts to achieve gender justice. These attitudes are often deeply ingrained in cultural and social norms, and can be perpetuated through institutions such as the family, religion, and the media. Transformative constitutionalism requires not only legal and institutional change, but also a shift in societal attitudes towards gender equality and justice.36 A further limitation is the lack of access to justice for marginalized groups, particularly women from low-income and rural communities. Legal systems can be complex and inaccessible, and women may face additional barriers such as illiteracy, poverty, and discrimination. Transformative constitutionalism must be accompanied by efforts to improve access to justice and ensure that all women can benefit from constitutional protections.37
CONCLUSION
It can be seen through the various judgements of the Apex Court that the protection of a woman's right has been greatly impacted by the transformative interpretation brought by the Apex Court. The equality code of the Constitutions has been instrumental in granting equal status to women in distinct fields such as protection against domestic violence and sexual offences, within or without workplace, equal pay parity and equal opportunity of employment, right to practice religion, right to reproductive autonomy and others. It gives the Courts a leeway to uphold the constitutional morality as opposed to the older notions of patriarchal social morality that largely marginalised women in the area of both public and private life. Having well recognised and establishing the right to a dignified life, legal position has come a long way in entitling women to equal status as that of men.
To go a step further Courts have come to conclude a right to sexual autonomy and identity, that has gone beyond traditional gender roles to recognise right to a dignified life of sexual minorities. The Court has traversed different journeys in different spheres, in as much as sometimes the change comes from the popular will which translates to a legislation and finally interpreted 36 Crenshaw, K. W. (2017). Mapping the margins: Intersectionality, identity politics, and violence against women of color. In The Feminist Reader: Essays in Gender and the Politics of Literary Criticism (pp. 479-500). Palgrave Macmillan, New York 37 Chinkin, C. (2017). Gender, justice, and the international rule of law: Progress and prospects.
American Journal of International Law, 111(2), 295-318 by the Courts as in the case of offences of voyeurism or stalking in IPC38 or at other times the change comes directly from a transformative interpretation of the court which translates into a legislation, subsequently accepted by the society as in Vishakha case and NALSA judgement. 39 In conclusion, while transformative constitutionalism offers a powerful framework for achieving gender justice, there are other actors determining its success such as political will, societal attitudes, and access to justice are among the key areas that require attention to ensure that constitutional guarantees are translated into meaningful change for women and marginalized communities. SUGGESTIONS As noted, there are avenues such as protection from marital rape that still calls for a change, be it legislative or through the Court.
Other developing jurisdictions have on the other hand recognised and hardened the law in black letters in the same sphere. The South African Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 criminalizes marital rape and provides for harsh penalties for offenders. In Brazil, on the other hand, marital rape is illegal and punishable by law. In fact, the Brazilian Penal Code explicitly states that "rape is any non-consensual sexual act, regardless of the relationship between the perpetrator and the victim".
40 Hardening the law into black letters: It is crucial to note even though once a right is recognised Access to Justice to the most marginalised: Once access to justice is equally ensured not only in black letters but in actual circumstances a transformation through constitutional interpretation will gain momentum, as it is the societal change that lies at the core of transformative constitutionalism.