DAUGHTERS OF INDIA: THE JUDICIAL DICHOTOMY
By- Prachi Choudhary, GSOL GITAM, Visakhapatnam, Andhra Pradesh.
The Indian Judiciary has always placed women on a pedestal of high moral and ethical values and has always acted as the guardian of women’s rights. The Judiciary, in its real sense, has been the custodian of the sanctity of womanhood worshipped in India in its pursuit of equality for men and women. Time and again, the Judiciary has paved the way for an inclusive and honorable society in India for women to be. Right from the judgment of Mohammed Ahmed Khan v. Shah Bano Begum in providing women the right to maintenance. The point is that married women have a right to claim from a husband to meet the basic needs of a human.
The recent judgment of the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma deciding that daughter is equal coparceners granting them equal rights to inherit ancestral property has bolstered the Supreme Courts views on a woman’s standing in the society. The Judiciary has always had an unmistakable message as to the way women ought to be treated in India. The judgment has upheld the right provided to a daughter under Sec. 6 of the Hindu Succession Act, 1956, to inherit the property clearing that the 2005 amendment to the Act would not make any difference to the rights of the daughter.
Women have the right to be on equal foot holding as men in society. The Supreme Court judgment in February, in the case of The Secretary, Ministry of Defence v. Babita Puniya & Others, has paved the way for greater participation by women in the field of defence. The decision came after a 10-year stall on an appeal against Delhi High Court's decision to have a permanent commission for women in the army. While deciding the case, Justice Chandrachud criticized the government’s move stating that it reflected poorly on women considering them to be of weak resolute and fickle-minded. The judgment laid out that the idea of not granting women permanent commission into the army on the basis of old patriarchal notions firmly adhered to sex stereotypes and disabled women of getting the opportunity of serving the nation in their capacity. The judgment had various far-reaching implications regarding the permanent commission of women into various cadres of the Indian army.
In all, he spheres of a woman’s life, the Judiciary, especially the Apex judiciary has upheld the dignity and entitlement of the women.
The effect of all these judgments has had a very positive influence on the way society treats women. The society has come about to accept the changes in its perspective to welcome the judgments. Surprisingly, the same stance has not been taken up by the Judiciary when it comes to deciding upon the cases of violence and sexual violence in particular against women. Somewhere, the Judiciary seems to have lost the perspective of a woman in deciding cases of sexual violence which permeate deep biases against woman’s sovereignty in deciding for themselves. In one of the judgments of the Karnataka High Court in June this year, the judge, while granting bail to the rape accused, made certain remarks regarding the possibility of commission of the offence itself. The remarks caused a huge public outcry from lawyers and social activists demanding the deletion of the sentence from the judgment. Be it cruelty, sexual harassment, or rape, the Judiciary has developed well-balanced moral restitution that ultimately corrupts the modern aesthetics of a woman.
The traditional moral compass is brought about to measure a woman’s righteousness and chastity on a moral compass. The Madhya Pradesh High Court on 2 August 2020, just a day before the festival of Rakshabandhan, the auspicious festival celebrating the sanctity of brother-sister relationship passed a judgment in which a conditional bail was given to the accused, accused of sexual harassment on the condition that the complainant agrees to tie a rakhi to the accused. It is the very face of gender bias institutionalization, and the stamp of adjudicatory pronouncements that foster such biases against a victim of sexual violence and harassment face extreme abandonment. Because it not just their conduct but the whole chastity of their character, which is questioned by the Judiciary while looking into the inquiry against a crime perpetrated against them.
The bias against the victim and survivors of sexual crimes is so strong, permeated, and strengthened by the judicial analysis that the victim would instead not report the crime. The stigma and prejudice against women in the cases of sexual crimes and being promoted in the garb of social justice need to be eradicated.
There is a visible difference in the approach of the judicial institutions, from the High Court to the Supreme Court, which can be easily made out by the variation in pronouncements. Maybe it is the difference in the hierarchy of courts or the overall perspective that they carry as an institution, of what they represent, the Supreme Court being the flag bearer, the representation of the country’s conscience, country’s stand, so the judgments come out to be so reformative. But this difference in approach amongst women’s issues defeats the very purpose of all the progressive judgments.
This oscillating judicial approach, coupled with the internalized misogyny against women, is what denigrates the auspiciousness of being one. The demand and scale of measuring the ethical behavior of a chaste woman confuse the conscience of a woman in this era. There always exists a gap between the procedural and substantive parts of a law, which might give rise to a few discrepancies while deciding on a given matter. It is the Judiciary, the very backbone of a democracy that binds them and fulfills the holistic goal of a legislative piece. There ought to be a single approach that needs to be taken for Judiciary to be uniform in its decisions.
 1985 (2) SCC 556  [Special Leave Petition (C) Nos. 17661767 of 2020]  Civil Appeal Nos. 9367-9369 of 2011  Sri Rakesh B vs. State Of Karnataka, CRIMINAL PETITION NO.2427 OF 2020, Karnataka High Court
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)