The Supreme Court of India on several occasions has pronounced certain judgements which have either empowered women or helped them to attend equal status in society. And Justice DY Chandrachud before getting elevated as the 50th CJI of India has been a part of those benches, that have delivered such remarkable verdicts. On several occasions, he has openly raised his voice for maximum women’s participation. He also opined that feminist views must be imbibed in the law.
The following cases vouch for his adherence and commitment towards women’s empowerment.
The right to legal abortion to unmarried and single women
The Supreme Court of India has extended the right to safe and legal abortion to unmarried and single women as well. After this verdict,
all the women in the country regardless of their marital status can undergo an abortion for up to 24 weeks. The verdict was given by a 3-judge bench headed by Justice DY Chandrachud. Justice Chandrachud mentioned that the law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex. This would create invidious classifications. The
three-judge bench comprised of justice D.Y Chandrachud, Justice A.S Bopanna and Justice J.B Pardiwala.
Recognition of Marital Rapes
Supreme Court has recognized marital rape as an important part of the definition of rape. While hearing a case regarding legal abortion, Justice Chandrachud recognized marital rape as an important part of the definition of rape in the Constitution concerning the Medical Termination of Pregnancy Act and Rules”. The institution of marriage does not influence the answer to the question of whether a woman has
consented to sexual relations,” said Justice Chandrachud, recently during the Supreme Court’s judicial recognition of marital rape in September 2022.
Permanent commission to women in the Army
Earlier Supreme Court cleared the way for women to get permanent commissions in the Army and the Navy. The verdict was given by a
two-judge bench which included Justice DY Chandrachud as well. While pronouncing the same, the apex court made a scathing observation
against the gender discrimination prevailing in the army. Later when there was a delay in the same, the supreme court issued a contempt warning as well. In the due course, Justice DY Chandrachud said “The Army may be supreme in its authority, but this constitutional court is also supreme in its jurisdiction. We gave you a very long rope,” After this hard-hitting remark, the army as well as the central government had to surrender.
Justice DY Chandrachud overturned the previous judgement of the Supreme Court which was affiliated with adultery. It was decriminalized by the supreme court, and it further struck down section 497 of the Indian Penal Code. The supreme court found this article gender biased. In a 5-page written order, Supreme Court recorded that men and women are equal. The time has come that society has to realize this. Though people called this judgement against women or anti-women. Justice DY Chandrachud said, “Very often, adultery happens when the
marriage has already broken down and the couple is living separately. If either of them indulges in sex with another person, should it be
punished under Section 497?” “The law in adultery is a codified rule of patriarchy,” he wrote in his judgment and concluded by saying, “Respect for sexual autonomy must be emphasized. Marriage does not preserve the ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage.”
In 2018, this Sabrimala verdict was pronounced by a constitutional bench that comprised 5 judges including Justice Chandrachud. While hearing the Indian Young Lawyers Association vs State of Kerala case he was of the view that the exclusion of women between the ages of
10-50 years by the Sabarimala Temple was contrary to constitutional morality and that it subverted the ideals of autonomy, liberty, and dignity. He held that the morality conceptualized under Articles 25 and 26 of the Constitution cannot have the effect of eroding the fundamental rights guaranteed under these Articles. Justice Chandrachud goes on to say that physiological characteristics of women like menstruation have no significance or bearing on the entitlements guaranteed to them under the Constitution. The menstrual status of a woman cannot be a valid constitutional basis to deny her dignity, and the stigma had no place in a Constitutional order. Though this judgement was not positively received by the followers of Lord Ayyappa and numerous protests took place in the country.
In this case of ‘Love Jihad,’ the apex court bench consisting of Justice Chandrachud stressed the right of the adult woman to exercise autonomy and the right to make decisions concerning her marriage and choice of adopting a religion.
An insight into the judiciary:
Though his judgements have been reflecting women’s empowerment and he has been talking about feminism, the gender disparity in the Indian judiciary is alarmingly very high. Ever since the Supreme Court has come into existence in 1956 it has seen only 11 female judges so far. The first female who was appointed as a Supreme Court judge was Fathima Beevi in 1989. Other female judges appointed to the apex court were Justices Sujata V Manohar, Ruma Pal, Gyan Sudha Misra, Ranjana P Desai, R Banumathi, and Indu Malhotra.
In many states of India, there is a 30% horizontal reservation for women in the lower Judiciary like States such as Assam, Andhra Pradesh, Telangana, Odisha and Rajasthan have benefited from such reservation as they now have 40-50% women judicial officers but that’s not the case with the higher judiciary.
In high courts, the percentage of women judges is a mere 11.5% while in the Supreme Court there are now only three sitting women judges out of a total of 33 judges. Even the situation of women lawyers in the country is not any better. Out of 1.7 million registered advocates only 15% of women. Just 83 of the 680 judges in the high courts are women. Only 30 per cent of subordinate judges are female. Recently, the Supreme Court Collegium recommended 192 candidates for the High Courts, out of these, 37, that is 19%, were women. But unfortunately, so far only 17 of the 37 women recommended were appointed.
As he agrees with the fact that women are highly underrepresented in the Indian judiciary, it is going to be a challenge for him, and it would be quite interesting to see how he will be addressing the same.