We must strip our vocab of misogynistic presumption & from model of restriction: Justice Bhat

MUMBAI: “To achieve gender justice, it is critical that the judiciary avoid stereotypes and social biases to strengthen a judicial system that guarantees women access to fair and gender-sensitive judgments,’’ said Justice S Ravindra Bhat of the Supreme Court on Thursday at a talk on ‘judicial perspectives on gender’.
“The language we use, must neither trivialise the pain of the survivor, nor condone the harm caused by the accused (thereby exposing the survivor to trauma, repeatedly) and for this we must, as lawyers and judges, strip our vocabulary and language of the misogynistic presumptions, prevailing in society,’’ said Justice Bhat at a webinar organized by retired Bombay high court Judge, Justice Roshan Dalvi, Justice Vimala and Vikas Chatrath.
The Judge spoke of ‘enduring sterotypes’ and power language has, to both, perpetuate and put a stop to it.
"While awareness, and reform in society, will have to be through state-driven efforts and people driven movements, what the judiciary can contribute to – is a conscious selection of language, which remains a powerful tool in breaking through stereotypes, and signalling a changed sense of what is ‘acceptable’ and what is not," he said.
On the principle of parens patriae where the State acts as the guardian for the benefit of those who have none to fight for their rights, the HC said it is time to critically examine it, as laws often manifested as a restriction imposed on women --for their benefit, for instance the work timings imposed on women under the Factories Act.
"I urge you to consider that rather than a paternalistic approach that imposes restrictions on women for their protection, we need to rethink our systems and work towards ensuring the conditions and environment they find themselves in are controlled and safe, so as to enable them, instead. To put it simply: from a model of restriction, we need to progress to one of liberation, in the long run.''
“Constitution has been employed in diverse fact scenarios, to offer protection of women, and gender or sexual minorities. The trilogy of Article 14(right to equality), 15 (non discrimination on grounds of any religion, race, caste, gender etc) and 21 (right to life and liberty), offers a powerful tool for anti-discrimination, even in the absence of legislative protection – which is what the courts have more often, than not, recognised,’’ he added.
“We must remember that even if women and men, theoretically have the same opportunities, the informal barriers apply to women – due to historic prejudice, and a general sense of disdain or indifference, towards bettering the situation for a group of persons who are traditionally treated poorly. This includes women being paid lesser, held back on the presumption of inferiority and a lack of ability to commit to the workplace, sensitizing and language’
The Judge spoke on May 19 at an online event “on the momentous occasion of the release of Justice Roshan Dalvi’s wonderful book’—Her Trials and Triumphs. He said that he enjoyed reading it and it was "written in accessible and simple language, this comprehensive book promises to be a great resource not just for those who are interested in gender studies and related legal frameworks, but to those entirely uninitiated to the law as well.''
He said The principles of substantive equality, anti-discrimination, and autonomy, are inherent in the Constitution and can and must be used, to counter action that challenges these rights.’’
Justice Bhat added, “Fortunately, unlike in the US, where there is a vociferous debate and conflict between textualist and constitutionalist approaches, Indian constitutional interpretation has consistently enabled us to treat the constitution as a living document, unfrozen in time. Therefore, even though the constitution framers may have only contemplated gender as a binary, the court was not limited by such a conception while recognising the fundamental rights of queer persons and transgender persons, within the provisions of the Constitution itself. This was possible due to the combination of Articles 14, 15 and 21.’’
The court’s jurisprudence is replete with examples, relating to combatting direct and indirect discrimination, based on the equality doctrine of Articles 14 and 15, he said. Citing examples he said many years ago the SC recognised the unfairness apparent in a service rule that required a woman IFS officer to secure permission before getting married and permitted the government to terminate her services if it felt her domestic life affected her professional performance. He also spoke of the more recent.
Many cases arose in the contest of public service, he said.
A lot of these cases arose in the context of public service, or employment as these interactions and differential power equations are rife with such circumstances. He also spoke of the more recent Sabrimala temple entry case which he said " offers a different illustration - while considering ‘access’ (and more particularly Article 15(2)) the Supreme Court has brought in an interpretation of Article 17 into this framework, making it more enforceable. It was held that the exclusion of menstruating women from religious places and practices on the justification that they are considered impure during that time, amounts to a form of discrimination akin to exclusion of oppressed castes as ‘untouchable’.''