Our Constitution Is Transformative Document That Sought To Remedy Structural Inequalities Rooted In Patriarchy | Justice D Y Chandrachud

Adding further the Supreme Court Judge also said,

There is no one identity for women as a group or a class. There are multiple identities within the large class of women for whom the law has entitled the conferment of rights. It is important for us to understand that there must be an intersectional approach to discrimination and violence which women face. 

Speaking about discrimination against scheduled caste women, the top court judge continued to elaborate how in a recent judgement that he has delivered, he has observed that when the identity of a woman intersects with her caste, her class, religion, disability and sexual orientation, she may face violence and discrimination due to 2 or more grounds. He elucidated,

Transwomen, for instance, may face violence because of their heterodox gender identity.

Justice Chandrachud also remarked on ‘inequalities rooted in patriarchy’. He said,

Our Constitution is a transformative document that sought to remedy the structural inequalities rooted in patriarchy. It has become a powerful tool to secure material entitlements and provide public affirmations of dignity and equality of women. Legislations like domestic violence act, prevention of sexual harassment at workplace act have been enacted to achieve the goal of fulfilling the constitutional rights of women. However, every day in our lives as judges of the Supreme Court, we come across injustice against women. There are real-life situations which show that there is great divergence between ideals of the law and the real state of the society today.

Adding further he quoted,

You come across a case of a daughter-in-law being thrown out from the house in a matrimonial dispute and then, when she complains under the domestic violence act, she is informed that the husband has no right, title or interest in a joint family home or that the home that belongs to the father! When the award of maintenance is sought to be enforced, the woman is told that the business belongs to the joint family and the husband is only a salaried partner in the business.

There is a matter where a woman was denied maternity leave for the first born child on the ground that her husband, from a prior marriage, had two living children! So a woman who was in a relationship, a marriage, with her husband for the first time was denied maternity leave because her husband had children from a previous marriage! Just two days ago, there was an advertisement which a company was required to pull down- the advertisement was Karva Chauth by a same-sex couple. It had to be withdrawn on the ground of public intolerance!

Justice Chandrachud also expressed that there are laws creating rights for women, which the Constitution recognises, and which extend to matters of property and succession, extend to the workplace, extend to entering the workplace and protect women once they are in the workplace. But it is important to spread legal awareness for women about how they can get into the workplace in the first place. He urged,

He showed that the Food Security Act, for instance, recognises the woman as the head of the household. He said,

A woman can be the head of the household in order to facilitate the right to food security. When I was the Chief Justice of the Allahabad High Court, we held that that right must extend to a woman who is a transgender who must also be recognised as the head of the household for the purpose of the Food security act.

He also questioned,

How do we facilitate the entry of women into the workplace in order to facilitate an inclusive workplace, an inclusive society, where women will be able to join the workplace at an equal footing with men?

Justice Chandrachud reflected that the entitlements which the law has created for women should not become a ruse or an excuse for perpetuating the domination of men. He said,

So when women have been given political representation in legislatures across the country, it should not become a ruse for a man who is standing behind a woman and really is asserting a patriarchal domination over the right of the woman to be a representative of the people at large!

The supreme court judge who could be the next CJI in the upcoming years asserted that legal awareness of the rights of women is not merely a matter for women, He said,

Awareness is not only a woman’s issue. Awareness about the rights of women can be truly meaningful if that awareness is created amongst the younger generation of men in our society. Because I believe that the deprivation of rights of women, if we have to find an answer to them, the origin must be in the changing of mindset, both of men and women. The more we realise that the category of women encompasses various social, economic and political disadvantages, the more we will be able to cater to their individualised and actual needs. True freedom for women, in other words, is truly intersectional

Sexual Division of Labour

The judge acknowledged that our society is marked by a sexual division of labour between men and women, and this sexual division of labour forms the basis of the patriarchal order in our society. He said,

This division of labour is considered natural- Women owe unpaid domestic labour to their families out of love! A very distinguished scholar Nivedita Menon has said that the sexual division of labour is not just a technique to divide work but it conceals the fact that men’s work is considered human while women’s work is perceived as determined by their nature.

Position of men and women in the hierarchical family set-up

Justice Chandrachud said that position of men and women in the hierarchical family set up has larger implications for our society. He quoted,

First, it allows confinement of women to the domestic realm where they are assigned the toil of domestic labour. Second, women are more likely to be relegated to feminine work roles and deprived of leadership positions, leading to discrimination in the workplace. Third, it makes women vulnerable to violence, sexual or otherwise, because of the power structure that exists in the society. Fourth, the rigid gender roles which arise from the sexual division of labour privileges the heterosexual family unit.

Adding further he said,

The deviations from heteronormativity are characterised as deviants- Whether it be gender, non-conformance expressed through trans or non-binary identity or through sexual orientations that displace heterosexuality as a default, since they erode the very basis of the gender binary and result in gender roles.

Personally Impacted by Three Women

He narrated that his own personal life has been greatly impacted by three women where he quoted,

Firstly, my mother Prabha Chandrachud ji. My mother was born in 1924. Although I may not describe her as a feminist in today’s context, I recall that during my childhood, we had gone to watch a Marathi play titled ‘Aai retire hotey’, which depicted that if the mother retires, what circumstances befall the family. My mother had told me then that a mother retires, and the truth which is there in it, I must never forget…

The second woman who has greatly influenced my life was one who served in our household for over 40 years. She came from a very small family. She was probably illiterate. But her thinking process, her thoughts, her opinions were no less than that of an educated one. Back in 1960, 1965, she used to ask that ‘even though we work at home, should there not be a provident fund for us? Should there not be employees’ insurance for us?’…

The third lady is my wife Kalpana Das ji, who is a feminist in the true sense of the term and who contributes significantly to my work as a judge of the Supreme Court of India. I have conversations with her several times over several subjects; her line of thinking, her views have influenced my personal life on several occasions.

MDO Take:

• If the premise of our judiciary is to make more favourable laws for women, can Men expect balanced judgements and justice in any way?
• If any supreme court judge looks at cases with a bias favouring women, will he/she be able to pronounce orders which could be against ‘erring’ women?
• Courts of Justice should look at facts of the case and refrain from making Gender Biased statements which could paint all Men with the brush of patriarchy and wife beater – As per statements mentioned above, husbands are always the perpetrators and women are always at the receiving end of matrimonial cruelty
• In 2021, our lawmakers and judiciary seem to be completely disconnected with the ground realities faced by several homes – be it in urban, Tier I, Tier II as well as Tier III 
• Most couples today live in a nuclear family, however, our matrimonial laws permit daughter-in-laws to randomly file criminal cases against husband’s parents and married sisters who have never co-habited with the complainant woman. In most cases women voluntarily choose not to work after marriage, however, when they approach court, the blame is entirely shifted to in-laws in the name of patriarchy
• Justice Chandrachud speaks about maintenance being denied to women – however, he does not discuss how in India, women who could be married for a single day are entitled to life long maintenance from husbands, without consenting to divorce. He does not discuss how women are awarded maintenance on merely filing a case, even before the merits of the same are discussed or concluded in the court
• Our supreme court judge does not discuss, how women have turned perjury laws into a cruel joke – where they forge documents, hide income, conceal facts only to walk away with maximum monthly maintenance without any fault of the husband
• The top court judge does not mention how ‘interim’ maintenance in India is being forced upon husbands not just for years, but decades, while women continue dragging actual divorce petitions endlessly. Do we call such women helpless or the one’s deprived without their rights?
• Child Custody matters are almost decided even before the matter reaches any court; Why does the supreme court judge not see the worst form of injustice on children who are solely handed over to mothers, thereby alienating them from the other parent – the father; which form of patriarchy is this?
• The top court judge does not make a single mention of how women in India get away without any consequences whatsoever, after filing false rape cases – false rape if boyfriend refuses marriage, false sexual harassment is senior/boss fails to give promotion, false rape case to settle score for property matters within the family, false rape case against separated husbands (accusing them of molesting own child under POCSO) to ensure they don’t get shared custody
• At the end of the day, women centric statements may win Likes and Shares from social media, however, they are far from depicting the real situation in India today -Where women are laughing away using gender biased laws as tools to settle score with Men; and Men on the other hand end up ending their lives