Decision In 'Nargesh Meerza' Requires Relook, Opines Justice Nagarathna; Recalls When She Stood Up For A Pregnant Judicial Officer

Speaking on the Role of the Judiciary in empowering women in India, Justice BV Nagarathna expressed her views on how from time to time Judicial pronouncements have contributed to upholding the rule of law and the spirit of constitutionalism in the country.

She was delivering a lecture on the 'Role of the Judiciary in Empowerment of Indian Women' organised by Justice Sunanda Bhandare Foundation.

Discussing the various decisions of the Apex Court in bridging the gender gap on issues of equal remuneration and conducive work environments for women, Justice Nagarathna lauded the Court's endeavours in Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa, (1987) 2 SCC 469 wherein the practice of lower pay to female stenographers as compared to male counterparts was held to be discriminatory.

However, she expressed the need for reconsideration of the decisions in Air India v. Nargesh Meerza 1981 AIR 1829 and Air India Cabin Crew Association v. Yashaswinee Merchant (2003) 6 SCC 277.

“But unfortunately in the late 70s and early 80s in Nargesh Meerza and Air India Cabin Crew Association v. Yashaswinee Merchant tried to say that a woman air hostess must not get children within the first 3-4 yrs of marriage and there were many other kinds of restrictions which were actually upheld by the Supreme Court, in my humble view those judgements would call for a course correction.”

Standing Up for the Seniority of a Woman Judicial Officer :

Recalling an incident from her experience in the Karnataka High Court, Justice Nagarathna brought into light the issues of gender bias and the balancing act women have to do between building their careers and embracing motherhood.

She described that a pregnant judicial officer was unable to come to take her oath because of her nearing date of delivery, “Then my male colleague said she should lose her seniority because she did not take oath on that day and her merit must yield to her seniority which she should lose. Justice Subrakamal Mukherjee was the Chief Justice, I insisted in the full court that it cannot be because the statutory principles have to yield to Article 15(3) and Article 21 more importantly and I raised my voice. Justice Mukherjee was shattered and said alright sister if you want I can go to the nursing home and give the oath."

"I said if you're going I will accompany you but the lady saved the chief justice from going to the nursing to give the oath because, on the fifth day of the delivery, she came and took her oath in the chief justice's chamber and more importantly she did not lose her seniority. These are the small ways in which judges can help women.”

Relevant Judgements Authored for the Cause of Gender Justice :

In discussing the role of the judiciary in striving for the cause of gender justice and the rule of law, Justice Nagarathna talked about her endeavours as a Supreme Court judge to impart equality through the power of judicial pronouncements.

She referred to the case of Association of Old Settlers of Sikkim vs Union of India, wherein here judgment  held that “A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity.”

The case dealt with tax exemptions given to Sikkimese men under the provision to S.10(26AAA) of the Income Tax Act, 1961 which however were not extended to Sikkimese women who married non-Sikkimese.

The Court ruled that there is no justification shown to exclude “a Sikkimese woman, who marries a non-Sikkimese after 01.04.2008” and there is no rational nexus to the object sought to be achieved by excluding “a Sikkimese woman, who marries a nonSikkimese after 01.04.2008” and to include “a Sikkimese woman, who has married a non-Sikkimese before 01.04.2008”.

Elaborating further on the challenges a woman faces in marriage and how the Indian culture and traditions should co-exist harmoniously with the aspirations of the modern women of today, Justice Nagarathna talked about her observations in the judgment in Prabha Tyagi vs Kamlesh Devi 2022 LiveLaw (SC) 474.

In the said case, The appeal originated from a woman's application under Section 12 of the Domestic Violence Act following her husband's death. She sought relief against her in-laws, including a residence order in her late husband's property and the return of Stree Dhan. While the Magistrate granted some relief, the Uttarakhand High Court ruled that to establish the respondents' commission of violence under the D.V. Act, it was necessary for the aggrieved person to have shared a household with them and for there to be a domestic relationship between the parties.

The Courted noted that Section 17 provides for every woman in a domestic relationship the right to reside in the shared household, regardless of her legal rights or interests in that place. The court emphasized the need for a broad interpretation of this provision. While the definition of 'shared household' refers to where the aggrieved person currently or previously lived with the respondent, in the context of Section 17(1), this definition shouldn't limit the understanding to only those households where the aggrieved person resided during the domestic relationship.

While discussing the case as part of her lecture, she remarked, “a woman cannot only be expected to save from the family budget for her own expenses. In Prabha Tyagi I said that the right to reside must not be conditional upon the existence of domestic violence given the social reality of dependence of women, especially young brides in their matrimonial family on shelter and finance if they have no independent source of income.”

In her concluding remarks, the Judge pushed for the need to have more women judges on the bench essentially for three reasons- as a matter of credibility and legitimacy of court; language and vocabulary of judgement and third, administration of the courts and need for different experiences to ensure the courts become more gender-neutral spaces.

The video of the lecture can be watched here.