18 Dec 2023 4:40 AM GMT
Recently, the Chief Justice of India, D. Y. Chandrachud, while delivering Justice E S Venkataramiah's Centennial Memorial Lecture, spoke about how hierarchies, prejudices, and stigmas travel beyond the public and private spaces. He said:
“If the hierarchy persists in the private space and the law looks in the other way in the name of the sanctity of the household, or the sanctity of marriage, we would be failing in the promise of equal protection of the law and qualifying it with a caveat based on the location of wrongdoing. This will be a diluted understanding of what privacy entails.”
Additionally, CJI also spoke about how, despite legal victories and societal movements, subtle forms of bias and discrimination exist. In this context, he shed light on the gender pay gap.
“This issue is particularly pronounced for Indian women. Especially those belonging to a marginalized community. Despite their significant contributions to various professional spheres, women continue to face disparity in remunerations compared to their male counterparts. This is a stark reminder that achieving through equity requires more than legal provisions. It demands ongoing advocacy and systemic changes to dismantle entrenched biases and ensure equal opportunities for all.”
The National Law School of India University (NLSIU) organized the lecture. The lecture's theme was 'Constitutional imperativeness of the state, navigating discrimination in public and private spaces.'
To begin with, CJI, also the chancellor of NLSIU, asked whether we have succeeded in creating public and private spaces that are conducive to people across dividing lines. Whether the laws and policies we adopt further the objects of the constitution in both these spaces alike.
Taking his cue from this, CJI, among other things, stated that law presumes that civil and criminal courts, which are vested with wide-ranging inherent powers, will exercise those powers to do complete justice.
“But what is justice? Is my version and understanding of justice the same as one of yours? Is there only one form of justice? If it is a rigid singular concept, then why do we have overturning judgments? We just overturned one (NN Global) just a few days ago...less than six months after the earlier one was delivered. A persons' sense of justice emerges from their conscience.”
Elaborating, he said that a sense of justice evolves when we are ready and willing to open our minds beyond the assumption that society has taught us to hold. It is only when we have an open mind that we are likely to feel the need to deviate from some of these base assumptions to curate our own sense of justice. In this background, CJI went on to state:
“We always see this need to deviate, take the form of legal amendments and overruling of previous decisions that were perfectly valid until a point in time. The law, in that sense, responds to a social change as a fundamental assumption underlying it alters over time….One such assumption is the difference between public and private spaces.”
“For instance, purely on the grounds of gender, women are often perceived as natural caregivers who must tend to the domestic needs of the family. While the men must undertake the remuneration activities and form the financial access of the household. It is so untrue.”
Moving forward with the lecture, CJI talked about how our laws have crystallized this narrative of what is public and what is private. Our laws in policy choose to treat people based on the physical locations of their actions. Substantiating the same, he said:
“Indian penal code provides that when two or more persons by way of a brawl, in a public space, disturb the public peace, they are said to commit an offense of affray. We must note that the brawl between two people will be punishable only if its location is a public space and not otherwise. The thrust of the law, therefore, is not only the inherent merit or demerit of brawls but on where it takes place.”
He further explained that neither of these spaces exists in neat individual spheres like a Venn diagram. They often overlap. The same hierarchy that pervades the private way seeps into the public and vice versa, making both spaces slightly less equitable.
There is, therefore, a need to look beyond this binary of what is public and what is private and search for the grievance that underlie both these spheres, CJI said.
For this, he gave certain thought-provoking examples of how certain roles are ascribed to women both in private as well as public spaces. While highlighting the infringement of rights in both spaces, he said that it would be unjust if the law intervened in only public spaces. CJI further said that the purpose of law will have to be extended to safeguard the interest of conventional and unconventional participants of both these situations.
“For instance, the household which is understood as a private space is a sight of economic activity by a homemaker who is not remunerated for it. Similarly, in public spaces, women are consigned to distinctively feminine, service-oriented, and often sexualised occupations. Thus, both sides involve rights and their infringement. However, if law chooses it will interfere only in latter that is public spaces then the law will be unjust. The framers of our constitution did not envisage such a geographical application of the law…..When a private home is a sight of employment for a house help, does the law protect the economic and personal rights, as much as it does of a corporate office employee?”
To support these observations, CJI cited a 2018 report on women in prison by the Ministry of Women and Child Development. As per its findings, abandonment of women inmates by the members of their families is a frequent phenomenon.
“These women are left on their own to lead a solitary legal battle…. The void created by one institution of the family may eventually be filled in the form of legal assistance. But the women stands on shakier and uncertain grounds until that happens.”
Pursuant to this, CJI spoke about the influence of these institutions and how they not only mediate the person's ability to access the law but also sometimes prevail over the legal rights of individuals. Explaining how our courts have held that the need to preserve the institutions is greater than the need to protect individual rights, he said:
“For instance, it was held in the context of marriage and marriage laws and the scope of the Court's intervention that introducing the tenets of the constitutional law in the privacy of the home or marriage would weaken the institution of marriage itself.”
So, what is the harm in stopping the law at the threshold of a household? CJI asked. Answering the same, he said that the household, as much as it provides private sanctuary to its inhabitants, is not simply, for that reason, not an equitable space as it may become unequal for some. Despite the general sense of security a household offers, there is a fair chance that these spaces may become unequal and unfair to some. Supporting this, CJI spoke about how it is not uncommon to hear that when faced with the financial choice between the education of a male child and a female child, the family chooses in favour of the former, the male child.
To put forward his points, CJI also cited several legal precedents. One was a 2022 decision of Deepika Singh versus Central Administrative Tribunal and Others. A Division Bench rendered this decision, of which CJI was also a part. Therein, the Supreme Court categorically held that a woman cannot be declined maternity leave under the Central Services (Leave Rules) 1972 with respect to her biological child on the ground that her spouse has two children from his earlier marriage.
“This decision reflected the evolving societal norms and the need to reimagine the family concept beyond conventional nuclear models…. Court room battles like in cases like those of Deepika Singh reveal the dynamic nature of the law and its capability of responding to evolving societal norms.”
Lastly, CJI also spoke about disability rights. He spoke about how disability often becomes a barrier denying individual access to public opportunity due to societal biases perceiving disability as a limitation.
He underscored that the Supreme Court has begun providing sign language interpretations for lawyers with hearing impairments in this context. This was demonstrated in the recent case where a hearing-impaired lawyer named Sarah Sunny was allowed to argue virtually with the help of a sign language interpreter, CJI said. He further added:
“Our laws are powerful tools in opening up our public spaces as well as curbing private discrimination. Equally important are the mechanisms that mediate access to the law. A simple requirement that seems to be neutral, such as the cause list that all the courts across the country publish, may exclude certain persons from accessing the law itself.”
After speaking about these important issues, CJI concluded his address by saying:
“The legal landscape must evolve, weaving a tapestry that accommodates differences, eradicates biases, and ensures substantive equality. Let us then, in a tribute to Justice ESV as legal practitioners, pledge to be architects of change, contributing to a tomorrow where the rights of every citizen, regardless of ability or background, are not protected but celebrated.”