The Judiciary and Women's Rights: The Record

In one line

Sort the cases by the function the court performed, not by the year they were decided, and the evaluation writes itself.

The subject of this chapter is THE JUDICIARY AND THE RIGHTS OF WOMEN, and the material is the whole run of judicial decisions on women gathered from the twenty-two chapters before it. Nothing new is worked here; what is new is the ORDER.

In the wording a student can write in an exam: the Indian judiciary has performed six distinct functions in this field. It has filled a legislative vacuum, most famously in Vishaka v. State of Rajasthan. It has struck down provisions resting on a stereotype, in Anuj Garg, Babita Puniya, Annie Nagaraja and Joseph Shine. It has read a right into article 21, in Puttaswamy, Suchita Srivastava and X v. Principal Secretary. It has construed a statute so as to save it or to widen it, in Githa Hariharan, Mary Roy, Danial Latifi, MCD Female Workers and Vineeta Sharma. It has monitored the implementation of a statute, in CEHAT, Vishal Jeet, Medha Kotwal Lele and Budhadev Karmaskar. And it has enforced an existing statute against resistance, in Mackinnon Mackenzie and A.K. Chopra. Against that it has, on occasion, upheld what it later struck down, in the adultery line, and reasoned in ways it has since abandoned, as in Air India v. Nergesh Meerza.

Function one: filling a legislative vacuum

Vishaka v. State of Rajasthan, 1997. No domestic law on sexual harassment at the workplace existed. The Court held that such harassment violates articles 14, 15, 19(1)(g) and 21, that in the absence of domestic law an international convention consistent with the fundamental rights may be read into them, and that the guidelines it framed would be BINDING and enforceable under article 32 until legislation was made. Worked in [The Judiciary as an Engine of Social Change].

What it shows. That the Court can create machinery, define an obligation and make it enforceable.

And what Medha Kotwal Lele shows fifteen years later. That it cannot staff, fund or compel the building of that machinery: several States and Union Territories had formed no Complaints Committee at all. The Act of 2013 followed within months. The pair is the best evidence in this module for the limits of judicial legislation, and it belongs in every "evaluate the role" answer.

Function two: striking down a stereotype

C.B. Muthamma, 1979. A rule requiring a woman member of the Indian Foreign Service to obtain permission to marry, and permitting the Government to require a married woman to resign, held discriminatory.

Anuj Garg, 2007. Section 30 of the Punjab Excise Act's exclusion of women from premises where liquor is consumed, struck down under strict scrutiny; protection distinguished from exclusion; autonomy includes the choice of occupation.