Road To Constitutional Feminism: Tracing Out Misogyny In Indian Judiciary

By- Rajesh Ranjan

On 15th July a Civil court in Bihar sent jail to the’ gang rape survivor’ charging her for contempt, followed by a decision of Karnatka High court infamous order of granting bail to rape accused while making observation” unbecoming of Indian women” reveals deep rooted structural patriarchy within top institution of Indian Judiciary. However the layered structure of misogynistic attitude in our judicial authority is not new. The inception of the evil traces its origin in the opinion of Justice A.B. Rohtagi in the case of the Harvinder Kaur vs Harmender Singh Choudhary where justice Rohtagi observed in para 33 that – “ Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. The unnecessary, expectation of masses from judges to be of higher moral standard is illusionary as their thoughts are also being shaped by the society itself.  While making a remark on the judiciary and judges, particularly in context of the conduct of chief justice, in the constituent Assembly B.R. Ambedkar said that –“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have.  Thus judges are not immune from the social system in which generally society operates.


The theory of realism contemplates at least three elements as basic to the judicial process. All are imperatives. The first “must” is imposed by the pragmatism of decision-making the case must be decided. The second “must” arises from demands of economic or social logic or fairness. Judges simply cannot, or will not, support forever a rule whose consequences offend concepts of equity or rationality. The third imperative is that the law reflect, in some measure, rules sufficiently acceptable for society to support. The Indian supreme court’s approach particularly in the context of dealing the cases of women’s right does not hold ground on these parametres.  The unfolding of judicial precedent reveals that judges lacks the idea of social logic ,and  do offends the equality or rationality, sometimes  while delivering the judgement., which malign the women’s right jurisprudence.  In the case of Narendra vs K Meena supreme court took a conservative road to say that “In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage.Thus the court itself ruling out the possibility of choice of a separate household of the respondent in this case which is a constitutional right under both Art. 19 and 21.  Recently in the case of Rakesh B vs State of Karnatka High Court, infamously remarked that “it was “unbecoming” of an alleged rape victim to have fallen asleep after being “ravished”.  Indian judiciary should introspect that this is not unbecoming of an Indian women, this is unbecoming of judicial precedent and a progressive court.


The idea of Constitutional feminism as a panacea for institutionally robust rights oriented and prejudiced free judiciary reminded us the Robert frost’s poem “The road not taken” It entails the idea of feminist engagement with the constitution to ensure the gender justice, unfortunately it does not seen the light of the day. In this context there is no such uniform judicial approach on the one hand We have judgment like Sabrimala and Babita punia where Court shattered the preconceived psychological notions and paved the way for enforcement of the fundamental rights. On the contrary to the judgments which compromises the fundamental freedom of justice. It has been observed that where there is a female judge in the bench, the judgements delivered is women centric and progressive, like in the case of D velaswamy the inclusion of Justice Gyan Sudha Mishra impacted the judgment of the Court. The challenge of token representation of women in the Indian judiciary also reveals the male dominant judicial structure. Since the inception of India, as the Independent nation 246 Supreme Court judges have been appointed out of which only 7, were female. The extent of poor institutional representation also extends to the High Court out of 25 High Court there is only one female justice. The more representation of women in judiciary would be paradigm shift in justice delivery system. The enabling provision of article 15(3) authorises the state to make special representation for women. In the Indian constituent Assembly ,framer of the constitution discussed ranges of choices including the ban on patriarchy . In the Assembly  Rev. Jerome D’Souzaa proposed for the recognition of the institution of family and its sanctity by state to be incorporated in the constitution, which would paved the way for feminist engagement with the constitution if got passed. The Judges and judicial officers are the repository of constitutional and public trust,their action must hold a higher ground.  Apex Court in the case of C V Ravichandran vs A.M. Bhattacharjee held that “The unbecoming character of the judges has a long lasting impact on the public image of the judiciary. It also degrade the public faith in judiciary and effect the rule of law and constitutionalism. In the case of Krishnaswamy vs Union of India  Court’s affirm that the morals of the standard is high for the judges of the Apex courts., even in the absence of the well drafted code of conduct there is a clear traditions of conduct and moral standard. The road for eradication of misogynistic institution passes through the street of constitutional feminism, .The long walk of Indian women to equality and fundamental freedom must recognise its place in the imageries of “Bharat Mata” Nationalism.

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