Supreme Court Judgments On Women Empowerment & Gender Equality In 2021

" No country can ever truly flourish if it stifles the potential of its women and deprives itself of the contributions of half its citizens" : Michelle Obama

It is a known fact that women have been struggling for decades trying to fight the patriarchal mindset and stereotypes which come along with it. When discrimination against women is prevalent in various forms and in different spheres, the Judiciary has an important role to play in reflecting women's strength, redefining patriarchal laws and paving a way ahead for women when patriarchal mindset, stereotypical notions and deep-rooted misogyny in the society poses a hurdle.

As far as women and protection of their rights are concerned, the year 2021 saw some significant interventions and observations from the Supreme Court - from calling out the misogynistic attitudes entrenched in the Judiciary to addressing the discrimination against women in the defence forces.

Following are some of the significant developments that took place in the Supreme Court this year:

Historic moment as three Women Take Oath As Supreme Court Judges:

The Supreme Court of India witnessed a historic moment this year when three women took oath as judges of the Supreme Court, making the total count of women judges four out of a total of 33 judges, the highest ever. Justice Hima Kohli, Justice BV Nagarathna and Justice Bela M Trivedi have been elevated to the Supreme Court.

When the Indian Judiciary has often been criticized for lack of gender representation, three women taking oath as judges of the top court was a crucial moment and even though 4 out 33 judges is still not an adequate representation it will hopefully be a good start to a more gender-equal future in the judiciary.

As Judge of the US Supreme Court, late Ruth Bader Ginsburg once said "Real change, enduring change, happens one step at a time."

In fact, if appointments go as per the seniority turn, the long wait for the first woman Chief Justice of India might find an end with Justice BV Nagarathna becoming the first woman Chief Justice of India in September 2027.

Chief Justice of India NV Ramana said at a public event that women have the right to seek 50% representation in the judiciary.

More Than 50% Women Representation In Judiciary Demanded In View Of Backlog; Will Take Up This With Collegium: CJI Ramana[Video]

Here are some of the significant women-centric judgments of the Supreme Court in 2021 :

Conception That House Makers Do Not "Work" Or That They Do Not Add Economic Value To The Household Is A Problematic Idea: SC In Motor Vehicle Compensation Case

In an appeal arising out of a motor accident compensation claim, the Supreme Court on 5th January 2021 observed that the conception that house makers do not "work" or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome.

A Bench comprising CJI NV Ramana, Justices S. Abdul Nazeer and Surya Kant noted that in India, according to the 2011 Census, nearly 159.85 million women stated that "household work" was their main occupation, as compared to only 5.79 million men.

"The sheer amount of time and effort that is dedicated to household work by individuals, who are more likely to be women than men, is not surprising when one considers the plethora of activities a house maker undertakes. A house maker often prepares food for the entire family, manages the procurement of groceries and other household shopping needs, cleans and manages the house and its surroundings, undertakes decoration, repairs and maintenance work, looks after the needs of the children and any aged member of the household, manages budgets and so much more. In rural households, they often also assist in the sowing, harvesting and transplanting activities in the field, apart from tending cattle." the Bench observed 

Case: Kirti vs. Oriental Insurance Company Ltd

Rape Victim Also Suffers Discrimination From Society: Supreme Court Issues Directives To Jharkhand Administration In A Rape Victim's Plea

A Supreme Court Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah had on 20th January 2021 observed that a rape victim suffers not only a mental trauma but also discrimination from the society

In a case where the rape victim alleged that no one is ready to give her accommodation even on rent after her identity was disclosed by the media, the bench issued directions to the State government including free education to her children, providing accommodation to the victim and review the Police security, etc.

Case: X vs. State of Jharkhand 

Pre­natal Sex ­Determination Is A Grave Offence Which Has Potential To Damage The Very Fabric Of Gender Equality & Dignity: Supreme Court

The Supreme Court on January 21st observed that prenatal sex determination is a grave offence with serious consequences for the society as a whole and a strict approach has to be adopted if the scourge of female foeticide and iniquity towards girl children has to be eliminated from our society,

While upholding the Madhya Pradesh High Court order dismissing the anticipatory bail application filed by an accused, a Bench comprising Justices Mohan M. Shantanagoudar, Vineet Saran and Ajay Rastogi said that the Pre Conception and Pre Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, was compelled by a cultural history of preference for the male child in India, rooted in a patriarchal web of religious, economic and social factors.

"The unrelenting continuation of this immoral practice, the globally shared understanding that it constitutes a form of violence against women, and its potential to damage the very fabric of gender equality and dignity that forms the bedrock of our Constitution are all factors that categorically establish pre¬natal sex-¬determination as a grave offence with serious consequences for the society as a whole", the Bench observed

Case: Rekha Sengar vs State of Madhya Pradesh

'Not Enough To Proudly Say Women Are Allowed To Serve Army When Their Service Conditions Tell A Different Story' : Supreme Court Holds Army's Evaluation Criteria To Grant Permanent Commission For Women Officers Discriminatory

The Supreme Court on March 25th expressed anguish at the Indian Army's failure to implement the judgment allowing Permanent Commission for women officers, and criticised the evaluation criteria adopted by the Indian Army to consider the applications of Women Short Service Commission Officers seeking PC.

The Court noted that the Annual Confidential Reports(ACRs) of the applicants for the purposes of PC were prepared belatedly, as they were not entitled to PC at the relevant time. However, the performances and achievements of women officers beyond 5th year of service, and in some cases the 10th year of service, were not considered in the ACR. The Court further observed that the attempt to apply the benchmark of the lowest selected male officer is "a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs".

The administrative requirements adopted by the Army in this regard were therefore declared as "arbitrary and irrational".

"A career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace, this is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women"." the Bench observed

Structures of our society have been created by males and for males: Supreme Court

The Court discussed the concept of indirect discrimination and said that the Army's policies were discriminatory in their effect on the women officers.

"We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the "norm" and may appear to be harmless, are a reflection of the insidious patriarchal system." the Bench said

Facially Equal Application of Laws To Unequal Parties Is a Farce When Law is Structured To Cater to Male Standpoint, Superficial sense of equality is not in the true spirit of the Constitution: Supreme Court

The Bench observed that at the time of Independence, the Constitution sought to achieve a transformation in the society by envisaging equal opportunity in public employment and gender equality. Since then, there have been continuous endeavours to achieve the guarantee of equality enshrined in our Constitution. However, a facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint.

"Presently, adjustments, both in thought and letter, are necessary to rebuild the structures of an equal society. These adjustments and amendments, however, are not concessions being granted to a set of persons, but instead are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women" the Bench observed

Case Title : Lt Col Nitisha and othes v Union of India and other

Supreme Court Seeks Centre's Response On Plea For Constitution Of District Wise Medical Boards To Assist Rape Victims

The Supreme Court in March sought Centre's response to a plea seeking constitution of district wise Medical Board all over India to protect and deal with rape victims:

A division Bench of CJI SA Bobde and Justice Bopanna had issued notice to the Centre while hearing the plea filed by a 14 year old girl seeking termination of her 26 weeks old pregnancy.

The Supreme Court on 30th July set aside the "rakhi-for-bail" order of the Madhya Pradesh High Court whereby the High Court had released a person, apprehended for outraging the modesty of a woman, on bail provided that he visits the house of the complainant and requests her to tie the Rakhi band to him "with the promise to protect her to the best of his ability for all times to come."

The Bench observed that act perpetrated on the survivor constitutes an offence in law, and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case maybe. The law criminalizes outraging the modesty of a woman.

Using Rakhi as a bail condition Dilutes & Erodes Offence of Sexual Harassment

The Supreme Court had observed that using rakhi tying as a condition for bail, transforms a molester into a brother by a judicial mandate. This is wholly unacceptable, and has the effect of diluting and eroding the offence of sexual harassment.

Challenges Indian Women Face Are Formidable Including A Misogynistic Society: Supreme Court

The Supreme Court acknowledged that challenges faced by Indian women are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male- centric, most often legal enforcement structures that either cannot cope with, or are unwilling to take strict and timely measures.

The Court opined that the reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness.

Rape Myths Undermine Credibility Of Women Seen To Deviate From Stereotyped Notions: Supreme Court

The Court observed that Rape myths undermine the credibility of those women who are seen to deviate too far from stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately, etc. The stereotype of the ideal sexual assault victim disqualifies several accounts of lived experiences of sexual assault

Apart from making some very important observations as to how the matters are to be decide, the Court also issued a set of guidelines to be followed by Courts while dealing with sexual crimes

Supreme Court issues a set of guidelines to be followed by Courts while dealing with sexual crimes: While setting aside the Madhya Pradesh High Court's 'rakhi for bail' order, the top court issued a set of guidelines to be followed by Courts. 

Amongst others, the guidelines included that the courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction. Further, Judges should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Gender Stereotypes Should Be avoided By Courts: Supreme Court

The Supreme Court observed that the courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that:

(i)women are physically weak and need protection;

(ii) women are incapable of or cannot take decisions on their own;

(iii) men are the "head" of the household and should take all the decisions relating to family;

(iv) women should be submissive and obedient according to our culture;

(v) "good" women are sexually chaste;

(vi)motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;

(vii) women should be the ones in charge of their children,their upbringing and care;

(viii) being alone at night or wearing certain clothes make women responsible for being attacked;

(ix) a woman consuming alcohol, smoking,etc. may justify unwelcome advances by men or "has asked for it";

(x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;

(xi) testimonial evidence provided by women who are sexually active may be suspected when assessing "consent" in sexual offence cases;and

(xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

Judges be trained on gender sensitization To Eliminate entrenched social bias, especially misogyny: Supreme Court

The court mandated that a module on gender sensitization be included, as part of the foundational training of every judge, which must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social

Gender Sensitisation To Be Part of Law Syllabus: Supreme Court

The Bench directed that the Bar Council of India (BCI) should also consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.Bprogram. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.

Title : Aparna Bhat and others v State of Madhya Pradesh and others

Supreme Court Allows Women To Take Exam For Admission To National Defence Academy & Rashtriya Indian Military College

Supreme Court on August 18th passed an interim order to allow women to take the admission exam to National Defence Academy(NDA). Following this, the Bench was informed that the armed services themselves have taken a decision for induction of females into the NDA and other linked issues have been examined or are being examined.Further, a study group has been constituted by the defense services consisting of experts to expeditiously formulate the comprehensive curriculum for the women candidates in the NDA.

The Court had observed that it would like the Defence Forces to take a proactive approach in gender equality issues rather than leave it unattended and calling for the Courts to interfere.

Similarly, the Supreme Court also directed the Centre to make arrangements for the induction of girls into the Rashtriya Indian Military College (RIMC) by allowing them to appear for the examination on December 18, 2021 for the term beginning from June 2022.

Case Title : Kush Kalra v. Union of India, Kailas Udhavrao More v. Union of India

Supreme Court expresses concern towards condition of women in Mental Health Institutions

Supreme Court on1st September noted that it was a 'serious concern' that women who are institutionalized in various mental health institutions across the country face several indignities and violation of human rights.

A Bench comprising Justices DY Chandrachud, Vikram Nath and Hima Kohli while adjudicating upon a plea highlighting the deplorable condition of women inmates in such mental hospitals, directed the Union Ministry of Social Justice and Empowerment to discuss the grievances raised with the concerned States during the course of its monthly monitoring meetings and accordingly ensure compliance.

Case Title: Gaurav Kumar Bansal v. Mr.Dinesh Kumar and others

Vaccination For Pregnant & Lactating Women : Supreme Court Seeks Centre's Response on Policy & Guidelines Framed

Supreme Court on 20th September issued notice on a writ petition filed by the Delhi Commission for Protection of Child Rights raising the issue of COVID vaccination for pregnant and lactating women, and sought the assistance of the Solicitor General of India regarding the operational guidelines

While issuing notice a bench comprising Justices DY Chandrachud and BV Nagarathna observed that the petitioner has some concerns which can be appropriately taken care of by the government.

Case Title: Delhi Commission for Protection of Child Rights v Union of India

Domestic Violence Act : Supreme Court Sought Centre's Response To PIL Seeking Enforcement Of Provisions To Assist Victim Women

Supreme Court Bench comprising Justices UU Lalit and S Ravindra Bhat in November issued notice to the Central Government in a writ petition seeking proper implementation of the mandatory provisions of Chapter Ill, of the Protection of Women from Domestic Violence Act, 2005.

The provisions relate to the appointment and functioning of Protection Officers and Service Providers and effective establishment of Shelter Homes for the protection of victims of domestic violence under the Protection of Women from Domestic Violence Act, 2005.

Case Title : We The Women Of India versus Union of India

"It Is Impermissible For Co-operative Societies To Deny Membership To Single Women, Members of Particular Community,": Supreme Court

The Supreme Court of India on 11 November orally remarked that it is "impermissible" that co-operative societies, in pursuance of the fundamental right to form associations under Article 19(1)(c), are denying membership to "single women.

"The right is to form associations. Do you know what societies are doing in exercise of this fundamental right? They are not letting single women occupy flats! They are not allowing members of a particular community! They are denying people who eat some particular food! This is the reality! This is impermissible! We cannot tolerate this attitude from societies!" the Bench observed in response to argument that there is a fundamental right to form associations or unions of cooperative societies" the Bench remarked

While disposing off the SLP by Punam Co-operative Housing Society, the bench observed, "The impugned order of the Single Judge directing the Cooperative Society to admit the respondents as members of the Cooperative Society is unexceptionable having regard to the provisions contained in Section 23 of the Act."

Case Title: Punam Co-Operative Housing Society Ltd. v. Alok Agarwal & Ors.

Female Candidate Who Took 308 Days' Maternity Leave During DNB Residency Training Allowed To Take Theory Examination By Supreme Court

Supreme Court on 25th November  allowed a female candidate who took 308 days' maternity leave during the residency training for DNB in Obstetrics and Gynaecology to take the theory examination scheduled in December.

The bench of Justices D. Y. Chandrachud and A. S. Bopanna noted that National Board of Examinations' circular clearly stipulated that the extension of training on account of Covid-19 duties by a period of three months was under special circumstances and would not interfere with the eligibility of the candidates to appear in their respective exit examinations as the cut-off dates for the purpose of eligibility would also stand modified accordingly.

Case Title: Divya Venugopalan vs National Board of Examinations 

Right Against Sexual Harassment Part Of Right To Life & Dignity Under Article 21 : Supreme Court

While setting aside the High Court's order quashing disciplinary proceedings against a head constable of the Border Security Force accused of sexual misconduct , the Supreme Court on 3rd December observed that the right against sexual harassment is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. The Court stressed that it is important that that the spirit of this right is upheld instead of rejecting sexual harassment complaints on "hyper-technical" grounds.

The Court highlighted that the Sexual Harassment of Women at Workplace(Prevention, Prohibition, and Redressal) Act, 2013 which is a transformative legislation will fail to come to the aid of aggrieved persons if proceedings inquiring into sexual misconduct are invalidated on 'hyper-technical' interpretations of the applicable service rules.

The Bench observed that it is also important to be mindful of the power dynamics that are mired in sexual harassment at the workplace. There are several considerations and deterrents that a subordinate aggrieved of sexual harassment has to face when they consider reporting sexual misconduct of their superior

Case Title: Union of India and Ors v. Mudrika Singh.

Supreme Court Sets Aside Bombay HC's Controversial POCSO 'Skin to Skin judgement':

Supreme Court in December set aside Bombay High Court's controversial judgement whereby it had acquitted an accused observing that groping of the breasts of a minor girl over her clothes will not amount to the offence of 'sexual assault' under Section 8 of POCSO, and offence of sexual assault under POCSO will not be attracted if there is no direct 'skin to skin' contact between the accused and the child.

Restricting the interpretation of the words "touch" or "physical contact" to "skin to skin contact" would not only be a narrow and pedantic interpretation of the provision contained in Section 7 of the POCSO Act, but it would lead to an absurd interpretation of the said provision.

Sec 7 POCSO - Main Ingredient Of Offence Of 'Sexual Assault' Is 'Sexual Intent' And Not 'Skin To Skin" Contact : Supreme Court

Case Title : Attorney General for India versus Satish and another

Supreme Court Grants Relief To Woman Officer Who Lost Permanent Commission Due To Pregnancy- Related Condition

Supreme Court on 15th December directed the grant of Permanent Commission to a Women Short Service Commission Officer who underwent a temporary aberration in SHAPE I status, the required medical criteria, due to pregnancy-related hypothyroidism.

"In our (March 25) judgment, we were concerned that these are Women officers who have served the nation. They were not considered for PC in the 5th and 10th years of service. We said 'please consider their status as on that day'. You cannot expect a woman or a man at 50 to meet the same criteria as they would have met on that day," remarked Justice Chandrachud.