Our Constitution Treats Conventional & Unconventional Choices Alike: CJI DY Chandrachud On Women Empowerment

CJI gave a keynote address on 'Equality, Justice, Empowerment' in an event 'She Shakti' organised by News18.

Before beginning his address on the subject, he acknowledged the irony of being a male keynote speaker at an event focused on women-related issues. He said: “The irony of having a man as a keynote speaker for an event focussing on issues facing the women of the country is hardly lost upon anyone; least of all to me. However, issues that concern women today are broader issues facing our society. They will determine the kind of society we envision for the future. Issues of safety, equality of opportunity, dignity and empowerment are not subsets that ought to be discussed in silos. Every one of us in the country has to be a part of this conversation.”

Issuing concerning women are broader issues facing our society

CJI told the audience that conversations such as these are not only about women but about the ability of our systems and social structures to design a more equal and humane society. He said: “Equal participation of women in governance, policy and leadership roles is positively linked to better development outcomes. When we either create or fail to address barriers in the path of women, we are jeopardizing our quest for a better society. Indifference is no longer an option.”

Sharing his personal experiences, CJI stated that the perspective that women bring to the table is 'irreplaceable'.

“No amount of learned wisdom about the world can replace the insights of women who have shattered many a glass ceiling. Some of life's most valuable lessons that I have absorbed have been from women colleagues and co-workers. I do not attempt to fill those shoes,” CJI added.

Prominent women and their prominent roles in developing our society

Referring to the drafter of the Indian Women's Charter of Rights (All India's Women's Conference, 1946), Hansa Mehta, CJI said: “She was an activist, diplomat and a member of the Constituent Assembly - the body tasked with framing the Constitution. Hansa Mehta was a feminist, who famously argued that references to 'men' could not be used as a synonym for humanity.”

Notably, Mehta was a part of the committee that drafted the 1948 Universal Declaration of Human Rights. She famously suggested that the 'men' referred to in Article 1 of the UDHR should be replaced with 'human beings'.

All thanks to Mehta Article 1 of the UDHR now reads: “All human beings are born free and equal.”

Earlier this year, on the International Day for Women in Diplomacy, UNGA President, Dennis Francis wondered whether the UDHR would be truly universal but for Mehta's insistence on this replacement.

Accolading Mehta's contribution, CJI pointed out: “Mehta's 1946 Charter was a prescient document. It envisaged women's rights to limit the size of the family, recognition of women's work as homemakers, and demands for creches for working women. Several decades ago my mother took me to a Marathi Stage performance titled – “Aaee Retire hote”.”

He added: “Hansa Mehta's Charter influenced the contents of our fundamental rights and directive principles of state policy. Some of its articles were truly ahead of their time and would become a part of the women's movement worldwide, much after Mehta articulated them. More importantly, the Charter imagined Indian women not as recipients of welfare and assistance but as contributors to the reconstruction of the country.”

Women who imagined public life for Indian women away from the traditional position

“The not-so-quiet sub-text of Mehta's vision was a reimagined public life for Indian women, away from the traditional position in the public-private space divide, a break from the 'male default',” CJI averred.

He stated that even before the Women's Charter, a National Planning Committee chaired by Laxmibai Rajwade and Mridula Sarabhai submitted a report espousing independent economic participation of women.

CJI said: “The Committee recommended women's control over earnings, treatment of women as independent economic units, separate from the family and consideration of domestic work as economically valuable.”

He pointed out that one Kapila Khandwalla, a member of the Committee, dissented from its findings because she believed that they were inadequate. Explaining Khandwalla's position, CJI said: “She hoped that “in the future planned society, what would count and count alone will be the individual personality of each woman”. What that means is simply this : accept every woman for what she is.”

Pre-independence hopes for women's economic participation are yet to be met

Pointing out the sad state of affairs, CJI stated that we have not met the pre-independence hopes about women's economic participation. He pointed out that the labour force participation of women is 37% and the contribution of women to the GDP is 18%.

Giving the reason for the lack of economic participation of women, CJI remarked: “A part of the reason is the continued gendered allocation of domestic labour. Even as women are entering the workforce, they are never divorced from the domestic realm. They must simultaneously juggle domestic and care-giving chores. They are doubly burdened - almost as a penalty for transgressing the domestic threshold.”

He added: “Besides domestic work being unaccounted for in economic terms, it obstructs women's ability to hold on to paid work or take on greater professional responsibility.”

Giving a glimmer of hope, the CJI stated that as per the World Economic Forum, gender disparity in employment is on the decline and women's salaried employment is set to increase.

Lived experience of women accounts towards gender equality

CJI acknowledged that gender equality is a function not only of statistics but a function of the lived realities of women. He said: “This also applies to assimilating traditionally excluded groups such as persons with disabilities, transgender and queer persons. Our expectations from these groups are heavily based on the stereotypical understanding of their supposedly innate tendencies. We fail to appreciate them as individuals.”

Highlighting the irony of how women break the glass ceiling and are expected to act like men but at the same time as women, he said: “As women break rank and enter professional workspaces traditionally dominated by men, they are expected to act like men.”

He added: “Ironically enough, they are also tacitly expected to act like women, act-their-part, lest they upset the code of womanly conduct. Paradoxically, women may run the double risk of being labelled demure or shrill, depending the assessor's stereotypical understanding of “how women ought to behave”. Rewards and prejudices are entirely de-linked from the calibre of the professional and coloured by her gender identity alone.”

Institutions run on information deficit about the objective abilities of women

CJI stated that women are often victim of what WEF flags as “male leadership blueprint” which refers to a set of masculine attributes that are associated with effective leadership and how this idea may well be contrary to reality.

Explaining this, CJI stated that for a large part of their lives, institutions have operated in an information deficit about the objective abilities of women. “Women traditionally were not a priority in institutional design. Even as they break into elusive and exclusionary places, women are met with institutional apathy at best, and hostility at worst. The result is high attrition rates and professional stagnation in entry level and mid-level roles for women,” he remarked.

Can we provide a level playing field for women?

CJI referred to Karthik Muralidharan's book titled Accelerating India's Development, which explores the possibility of a digital human resource management information system (HRMIS). The HRMIS, which is simply a digital record of employee information, creates a more transparent and equitable system for promotions.

Referring to the book, he said: “Muralidharan notes how mentorship and networking opportunities elude women and disadvantaged groups, due to their inability to participate in social spaces outside of the office. His proposal hopes to build a diverse pipeline of leaders within public systems, providing a level playing field where social networks are largely made redundant”.

Taking an experience from this, CJI stated that the experience with the District Judiciary resonates with similar objectives and network-agnostic mechanisms.

He said: “Our District Judiciary is recruited through a three-step exam process which resembles the format for entry into the civil services. We have seen an increasing intake of women Civil Judges through these exams - 58% of the total candidates in Rajasthan in 2023; 66% of the appointments in Delhi in 2023, 54% of the appointments in Uttar Pradesh in 2022 and 72% of the total number of judicial officers appointed in Kerala are women.”

The phenomenon of 'male default'

CJI remarked that even a measurable show of skill does not guard against the erasure of women's achievements in areas beyond the normative framework.

He said: “In 2013, Andy Murray - the British Tennis player was congratulated for ending the “77-year-long wait” to clinch a Wimbledon title. Well, Virginia Wade - a female British player had won Wimbledon as far back as in 1977. He was similarly congratulated for being the first to win two Olympic Tennis gold medals. What we lost was that both Venus and Serena Williams had won four Olympic gold medals each.”

CJI addressed that this phenomenon is known as 'male default' as termed by Caroline Perez. This phenomenon treats the public domain as a male preserve and disparages, discards and erases women's experiences to the contrary.

CJI remarked that the male default underlies gender data gaps in government planning, which in turn results in normative, male-centric policies that harm women. He said: “Perez argues that exclusion of women is justified by glorifying 'simplicity'- from architecture to policy to medical research. The idea that simpler policies are better polices per se, Perez claims is distortive. They make sense only if women are seen as an 'added extra' and not essential. The book suggests involving women in the decision-making to close the representation gap.”

Referring to another set of scholarship, CJI cited philosopher Isaiah Berlin, who in 1969 defined two forms of liberty – negative and positive. While negative liberty entails an absence of limitations, barriers and constraints; positive liberty envisages positive control over one's life and an ability to realise one's fundamental aspirations.

CJI added that in the 19th century, all of this came in a set of debates which hoped to settle questions about citizenship, property, access fo the public sphere and political virtue related to women. The debates collectively come to be known as “women question”.

“Though not connoting a particular set of questions, the discourse gave rise to narratives and counternarratives about women in the society. These debates formed the basis of socio-political rights such as suffrage and rights in public and private realms,” he stated.

Collectively pointing out all these debates, the CJI exclaimed: “Every institution must put itself to test against some of these questions. In making seemingly neutral policy choices, are we privileging the male default? Are we accounting for diversity in the C-suite beyond tokensim? Are we making accommodations for women's health, well-being and professional growth? Are we viewing women as professionals in their own right? Are we doing enough to preserve both negative and positive liberties for women?”

Looking beyond male default

CJI informed the audience that it's high time we must foster institutional and individual ability to look beyond the 'male default'.

He said: “Women are still having to justify choices in ways their male counterparts are not. Their access to resources – basic resources such as education, employment and advanced resources such as mentorship and social capital are chequered.”

Referring to the Preamble of the Constitution, he said that it envisages social justice and equality of status and opportunity.

CJI pointed out: “An aspirational document scripting the future of the country, the Constitution proscribes in more concrete terms, discrimination on the grounds of sex, while preserving the State's power to make special provisions for women and children. Non-discrimination on the basis of sex, equality before the law and equal opportunity in matters of public employment broadly form the foundational principles of the guarantee of equal opportunity and equal status.”

He added: “There is no dearth of substantive and procedural legal provisions targeted towards protecting the interests of women in private and public situations. But good laws alone do not make for a just society. Above all we need to change our mindsets. The mindsets must move from making concessions for women to recognizing their entitlement to lead lives based on freedom and equality."

We must zealously guard against apparently protective laws infringing women's liberties and choices. For instance, laws which prohibit women's employment in establishments where liquor is served. In Anuj Garg v. Hotel Association, the Supreme Court struck down such a law, as it gave expression to oppressive cultural norms which were contrary to the autonomy of women.”

Law alone cannot do much

Concluding his speech, he stated that while legal goalposts do afford substance to the Constitutional guarantees, they do not exonerate our institutions. He said: “Martha Nussbaum in her book 'Sex and Social Justice', argued that all human beings, regardless of gender “have a dignity that deserves respect from laws and social institutions”. Injustices persist despite and beyond laws. Laws themselves are not empowering. They are a step in the direction of social change. The change lies in a more deliberate, long-drawn, and persistent process led by the people who constitute these institutions.”

“As Dakshayani Velayudhan presciently remarked - “The working of the Constitution will depend upon how the people will conduct themselves in the future” rather than the law alone."

Dakshayani Velayudhan was one of the eleven founding mothers who signed the final draft of the Constitution. All of 31 years of age, Velayudhan was also the only Dalit woman in the assembly. Standing at the intersection of caste and gender, Velayudhan was a force to beckon with and held her own views independent of, sometimes even contrary to those of her more senior counterpart.