‘Most Of The Women-Centric Decisions Were Authored By Male Judges’:Justice Hima Kohli Says Stereotypes Should Be Avoided

Speaking at the International Women's Day celebration organized by the Adhivakta Parishad, Supreme Court Unit, yesterday, Supreme Court judge Hima Kohli appreciated the male Judges in evolving and expanding the jurisprudence by reading into the Constitution rights that had not been spelt out specifically, particularly in the context of upholding and safeguarding women's rights. 

Justice Kohli was speaking on the theme 'Embracing Equity in Justice Delivery System' at the event. 

She noted a plethora of women-centric decisions in which the judiciary had recognized the principle of equity, and observed that most of the decisions she had highlighted had been authored by Benches that were all male. 

"This shows that stereotypes should be avoided. “She does include “he” and “her does include “he”. Men have been so forward thinking in evolving and expanding the jurisprudence by reading into the Constitution rights that haven’t been spelt out specifically," Justice Kohli praised. 

Emphasizing that Equity was not just a buzzword nor slogan, but the "very foundation on which the edifice of true equality is built", the Judge said that without equity, equality would only remain a 'pipe dream'.

"To achieve true justice and fairness in our society, each individual must have equal access to opportunities and everyone must be treated with the dignity and respect that they deserve," the Justice Kohli said.  

Noting that the Indian justice delivery system has long stood as a bastion of equity, equality, and access to justice for all, the judge observed that the system seeks to ensure fairness, impartiality and justice in the distribution of benefits and burdens, at its very core. 

At the very outset, Justice Kohli observed that although the term 'equity' does not find a place in the Constitution, it permeates the very essence of a fair justice delivery system. It refers to 'fairness' or 'justice' in the distribution of resources, opportunities and benefits, and in the context of the justice delivery system, it refers to each person being treated fairly, and having an equal access to justice. 

Describing Equity as the 'Golden Rule that is imbued in the very soul of the Indian justice delivery system', Justice Kohli emphasized that true equality equality cannot be achieved without equity.

"This is because equity requires more than just equal treatment; it calls upon us to recognize and address the systemic barriers and discrimination that prevent the oppressed, exploited and marginalized communities from accessing the same opportunities and benefits as others. It recognizes that different individuals and communities have different needs and experiences and that equal treatment may not necessarily result in equal outcomes," she added. 

In this regard, she quoted the words of Dr. Naheed Dosani, a Palliative Care Physician, who famously said that, "Equality is giving everyone a shoe. Equity is giving everyone a shoe that fits". 

The Role of the Indian Judiciary in Promoting Equity

Emphasizing that the Indian judiciary has played a pivotal role in promoting equity in the justice delivery system, Justice Kohli noted that one of the key elements of equity is that of 'Access to Justice', which refers to every individual having access to legal remedies, regardless of their social or economic standing.

"Achieving equity in 'Access to Justice' in India, is, to my mind, a social call. We as a society must address the challenges that stand in the way of ensuring that every individual has access to legal remedies," the Apex Court Judge observed. 

In this regard, she went on to note the barriers in society to achieving this concept of 'Access of Justice' and noted them as follows:

1. Lack of awareness of the legal aid programs run by the National Legal Services Authority and the State Legal Service Authorities: Explaining that legal aid is crucial for ensuring that individuals who are unable to afford lawyers can still seek legal recourse, Justice Kohli said that this involves providing free legal aid to those who cannot afford it and improving the infrastructure of the existing legal aid, so as to make it accessible to all individuals, particularly those living in remote and inaccessible areas or rural areas; 

2. Delays in the Justice Delivery System: Justice Kohli said that addressing this particular challenge would require an increased focus on on streamlining the justice delivery system and reducing the backlog of cases. She observed the reasons for such delay and backlog as including a skewed judge-population ratio, a large number of vacancies, a high inflow of cases, increased citizen awareness of their rights, lack of infrastructure to set up Courts and the enactment of new legislation. Justice Kohli in this vein, also appreciated the role played by technology through the use of Artificial Intelligence (AI), such as online dispute resolution mechanisms and virtual courts, in streamlining the justice delivery system and making it more accessible to individuals situated in remote or rural areas. "Expanding the digital footprint in this area is imperative," she added. 

Women-Centric Decisions By The Judiciary Demonstrating The Application Of Equity Principle

The Apex Court judge noted a plethora of decisions rendered by the Indian judiciary that had been instrumental in demonstrating the application of the principle of equity in order to ensure a "fair and impartial outcome for the society and more particularly, achieve the equality goal for women". 

Some of these include:

1. Vishaka & Ors. v. State of Rajasthan & Ors. which had been instrumental in laying down guidelines to prevent and deter sexual harassment in the workplace, including requiring employers to establish and Internal Complaints Committee (ICC), and obligating them to provide a safe and secure work environment for women. The case went on to have a profound impact on subsequent legislation, leading to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

2. Githa Hariharan (Ms) & Anr. v. Reserve Bank of India & Anr. in which the Supreme Court had held that both the father and the mother are natural guardians of a minor Hindu child, and the mother cannot be said to be a natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is the legislative intent of the 1956 Act. 

3. Akella Lalitha v. Konda Hanumantha Rao & Anr. in which the Apex Court had recognized the the authority of the mother, who was the sole natural guardian of her child, to determine the latter's surname. 

4. Indian Hotel and Restaurant Association (AHAR) v. State of Maharashtra & Ors or the 'Dance Bar Case' wherein the Supreme Court was declared that an absolute ban on dance performances in bars throughout the state was illegal and infringed upon the fundamental rights protected under Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution. Although the Court in this case upheld the ban on obscene dances and showering currency notes on the dancers on the one hand, it struck down the ban on serving alcohol in dance bars, the enforced separation between discotheques and dance bars and conditions relating to the character of the person applying for a licence, on the other hand. 

5. The case of Secretary, Ministry of Defence v. Babita Puniya & Ors. wherein the Apex Court decided to provide a Permanent Commission to women who were earlier offered only Short Service Commissions in the Indian Armed Forces was significant in realizing the importance of fairness and equality in all spheres of the Armed Forces, including the process of commissioning and promotion. "Offering Permanent Commission to women is not just about fair play and equity which are priceless virtues in their own right, it is also about recognizing the unique skills and abilities that women bring to the Armed Forces, which is a different perspective, a different set of experiences and a different set of skills to the table," Justice Kohli added. 

The Apex Court judge also noted two more recent decisions of the Apex Court in Arunachala Gounder (dead) by Legal Representatives v. Ponnuswamy & Ors. and X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi & Anr. which also reaffirmed the principle of equity, and upholding the rights of women. 

It is in this context that the Judge noted that with the exception of Vishakha case which included one woman judge in the 5 Judge Bench that had been constituted, the other decisions had been rendered by all male Benches, and appreciated the male members of the Judiciary in safeguarding the principles of equity. 

While concluding her speech, Justice Kohli reminded that the International Women's Day this year would be an occasion for us to reflect on the role played by equity in achieving true justice and equality in our society.

"Equity is the cornerstone of a just and fair society, where every individual gets the same opportunities, resources and benefits, regardless of gender, race, ethnicity, or socio-economic status. It is the cardinal principle that ensures that everyone is treated fairly and impartially and that no one is left behind in the growth of society. It is a recognition of the fact that women, who constitute almost 50% of the total population in India and are going to dominate the workforce in the next few decades, are given their place under the Sun; that they enjoy equal rights and privileges at par with men; that they are not oppressed, mentally, physically or emotionally; that they are empowered to fight for the goals they choose to set for themselves; that their dreams can take wings and that they can freely march to the beat of their own drum," the Judge added.