I
In 1999, five-year-old Deepika lost both her parents in a car accident in Chennai and was placed in the care of her paternal grandparents. The Motor Accidents Claims Tribunal ordered that the National Insurance Company pay her Rs.11,10,576 as compensation for the loss of her father, and Rs.6,52,000 as compensation for losing her mother.
The insurance company appealed to the Madras High Court on the grounds that the compensation, based on the assumed income of the father, was ‘arbitrarily’ arrived at. They also challenged the amount separately awarded by the Tribunal to compensate the child for the death of her mother, on the grounds that since both parents had died in the same accident, it would suffice to compensate only the father’s death.
The High Court passed judgment on National Insurance Co v. Deepika and Ors in 2009. The two-judge bench hearing the appeal consisted of Justices Prabha Sridevan and T.S. Sivagnanam, and their judgment confirmed both the compensation awarded for the loss of the father and the method of calculating it. In the matter of compensation for the mother’s death, Justice Sridevan was caustic in her dismissal of the Insurance Company’s objection:
‘As regards the claim made for compensation for the death of the mother Uma Gajalakshmi, we are unable to apprehend the submission made on behalf of the Insurance Company that because the father died in the same accident, the child should be deprived of the compensation that she is justly and reasonably entitled to [for] the death of her mother . . . Each claim has to be dealt with independently and on its own merits.’
Justice Sridevan could have stopped there, satisfied that justice had been done to the orphaned child. But she wanted to take advantage of the opportunity afforded to her by the insurer’s objection to reflect on a woman’s worth, elaborating on the monetary value of the work performed by the ‘housewife,’ in this instance, Deepika’s deceased mother. The monetary quantification of the work done by the women at home is something that has not been really assessed,’ she muses, and consequently decides that ‘the time has come to scientifically assess the value of the unpaid homemaker both in accident claims and in division of matrimonial property.’
In these dicta, Justice Sridevan justifies her ‘digression’, as she disarmingly termed it, into the monetary value of women’s unpaid work in the home by taking support from the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW is an international treaty that the United Nations General Assembly adopted in 1979. Often described as ‘an international bill of rights for women’, its purpose is to identify all forms of discrimination against women and to set up an agenda for national action to end such discrimination. As a signatory to the Convention, the government of India bears the responsibility for implementing its protocols.
Justice Sridevan paraphrases General Recommendation No.17 in the treaty at length in her judgment:
‘It affirmed that the measurement and quantification of the unremunerated domestic activities of women which contribute to development in each country will help to reveal the de facto economic role of women and it recommended that States-Parties should inter alia encourage and support research to evaluate the unremunerated domestic activities of women and to quantify and to include this in the Gross National Product. It is recognised that most of the unpaid work around the world is performed by women.’
Justice Sridevan concedes that, ‘given the social concept of the role of a mother,’ women themselves are unlikely to give their care work an ‘economic value’. But in a legal case of compensation, such quantification is inescapable. She elaborates on various methodologies used for quantifying abstract value of this kind, drawing upon diverse sources such as ‘the Internet’, the Australian Family Property Law, rulings of CEDAW in complaints made to it and the proposals of the US National Organisation for Women for implementing the economic rights of homemakers.
The insurance company had made the absence of documentation establishing a business partnership between the husband and wife grounds for contesting her role as an income earner. The judges chose to condone the absence of documentary evidence, expressing themselves satisfied with the oral testimony of Deepika’s grandfather that his daughter-in-law assisted her husband at work. This concession enabled them to take into account her contribution to the family business and arrive at a figure slightly higher than the compensation set by the Tribunal.
In the few years since this judgment several cases have based their judgments on similar reasoning. The very next year, the Supreme Court judgment in Arun Kumar Agarwal v. National Insurance Co. (2010) cited the reasoning in the Deepika case with approval. Judge Sridevan’s ‘digression’ was brought into the mainstream by the Supreme Court’s citation (every opinion of the Supreme Court has the force of law), and is now a ruling that is uniformly applied.
Justice Sridevan spoke to me about the success of her landmark judgment: ‘It was the right time for this leap historically I think. The moment for acceptance of a woman’s worth had obviously come. Had I known that Justice Ganguly would give his SC [Supreme Court] blessing so soon [in Arun Kumar Agarwal], I would have explained more fully. But anyway a start has been made.’
II
No one denies that women’s rights are, on paper, amply protected in the Indian Constitution and by the many reforms enacted as laws since the framing of the Constitution in 1950. In addition, India is a signatory to the UN-sponsored CEDAW and Human Rights convention, which means that the courts may apply these international conventions if the domestic law should be silent on a given matter, and provided they are not contrary to domestic law. But despite progressive laws – and an active (if small) women’s movement – women fare badly in actual practice.
The majority of judgments in cases relating to women reveal ingrained sexist beliefs about women’s capacities, their social roles and their sexuality, making a female litigant’s success in courts in cases of marital disputes, inheritance, workplace discrimination, domestic violence, maintenance, rape and other gendered issues a highly chancy matter. Judges (predominantly male) are likely to think within the frameworks that characterize the worldviews of the class, gender and community that they identify with. In order to encourage male judges to transcend their socialization, ‘sensitization’ training programmes (in bureaucratic jargon) are conducted by the government.
Not that decisions favourable to women are lacking. But judgments that adopt the wrong reasoning in their support for women, as many do, end up reinforcing patriarchal assumptions. Rape is routinely punished by courts for being ‘a violation of a woman’s honour.’ The widespread perception that it is the duty of a woman’s father, brother, husband or son to protect her (or her ‘chastity’), turns rape in the legal understanding into an attack on the men whose property she is. It is a view that also explains the outrage expressed in the widespread popular demand for punishing rape with the death penalty. When the lawyer for one of the accused in the Delhi rape case compares ‘our’ women to a ‘gem’ or ‘diamond’ (precious objects that might be carried away by a ‘dog’ if carelessly left at the roadside), he is speaking of a thing of value – their chastity, as a reified, extrinsic attribute. (This stands in contrast to women’s intrinsic worth, which is based upon the work they do.)
This masculinist attitude towards female chastity explains the general judicial lack of sympathy for the raped woman if she is shown to be of ‘loose morals,’ such as a prostitute; it explains also the refusal to include marital rape as a crime in law. Feminists in India have long agitated to remove rape from this limiting frame of reference, and have sought to view it instead in terms of a violation of the autonomy of the female body; and they have demanded that the definition of rape not be limited exclusively to forcible vaginal penetration by the penis. As a result of these demands, the recent Criminal Law (Amendment) Act of 2013 includes all forms of sexual assault within its definition of ‘rape’.
Similar notions of womanhood and femininity inform judgments in civil law cases as well. When women win in cases of property, maintenance or inheritance, it is invariably because they are represented as old, helpless, widowed or dutiful and deserving; and when they lose it is because they are deemed to have already received their fair share of family property by way of dowry, or because they have become outsiders in the natal family by virtue of getting married. The judgment in Deepika itself comes close to valorizing a ‘homemaker’ when the home is described in the dicta as ‘the basic unit on which our civilized society rests’ and housewifely duties are listed in essentially middle-class and gendered terms as ‘managing budgets, co-ordinating activities, balancing accounts, helping children with education, managing help at home, nursing care etc.’ In part, at least, such a description is obligatory – and in this instance strategic since it refrains from challenging the traditional sexual division of labour.
A pro-woman judgment is therefore not necessarily a feminist judgment. A feminist judgment is built upon feminist principles: in essence, it insists upon women’s constitutional right to equality. A feminist judgment displays at the same time knowledge of the difference that gender makes in social functioning, and the consequent specificity of women’s lives and experience. It is informed, as well, by an overriding commitment to establishing gender justice. The judgment in National Insurance v. Deepika is feminist because it translates women’s gender-assigned household work into legally mandated monetary terms of value.
The scarcity of women in the legal professions, particularly as judges, is a fact in almost all countries. There is at present only one woman judge in the Supreme Court of India out of a total of twenty-eight. Fewer than ten per cent of the judges in the state High Courts are women. A former Chief Justice of the Supreme Court deplored this fact and urged that more women be appointed to judgeships. At the lower district and sessions level a network of Mahila Courts (women’s courts) has recently been instituted where the judges and other staff are predominantly women.
The questions that follow from this are whether it is only female judges who can be feminist, and its corollary, whether all female judges are by definition feminist. The answer to both is ‘not necessarily.’ But there is a well-founded expectation that women litigants would feel less intimidated in the presence of female judges, and that women judges in turn would exhibit greater sensitivity to their grievances. A larger number of women in the judiciary would promote gender equality if only because their proportionate presence in the profession would itself reflect it.
Justice Sridevan was only the fifth woman to be appointed to the High Court in Tamil Nadu, one of a handful of women who have made it to the top of the legal profession in the country. Despite starting her legal career late in life – after being a homemaker, mother and wife for thirteen years, and then attending law school with much younger students – her rise in the profession was rapid. She was made a Judge of the Madras High Court in 2000. Following her retirement, she was appointed Chairman of the Intellectual Property Appellate Board in 2011. Since stepping down from that position she continues to serve as a leading authority on intellectual property issues. She is often asked if and how being a woman influences her judgments. In a recent speech she explained: ‘We [women judges] are valuable for the perspective we bring, not because we apply the law differently but because we have a different take, a different life experience, that we bring to the space where we work.’
As it stands, many of the judgments we would describe as ‘feminist’ have been made by male judges. Justice K. Chandru of the Madras High Court is well known for several such judgments in recent years. A strikingly maverick figure in judicial circles, Chandru began his political life as a university student leader in the SFI (Students Federation of India) and a trade unionist and member of the CPI (M) (Communist Party of India, Marxist), before joining a law firm that took up workers’ causes and then opening his own practice. Known for his transparent honesty in office, his austere lifestyle and his dislike of the empty pomp and ritual attendant on a judge’s office (such as mace bearers and security personnel, and being addressed as ‘my lord’), as well as his speedy disposal of cases – he cleared an incredible 96,000 cases during his four-year tenure – he is widely admired for being a ‘people’s judge’. His judgments were not limited to women’s rights: he has pronounced on caste discrimination, workers’ rights, human rights issues and freedom of expression in radically anti-establishment ways. I heard him speak, post-retirement, at the Hindu Literary Festival in Chennai earlier this year, taking a vigorous stand against the communal attacks on the Tamil writer Perumal Murugan and proposing a coalition of concerned activists to fight similar cases of censorship in the future.
One of Justice Chandru’s landmark judgments is in Pinniyakkal v. District Collector and ors (2008), in which he ruled that a female claimant for the position of priest in a small Durgai Amman temple in Madurai district could not be prevented from performing the temple rituals. The 45-year-old Pinniyakkal had inherited the position from her father. She had assisted him for years and considered herself fully qualified to continue as priest after his death. However, there was widespread local opposition to a woman performing priestly functions, and rival male claimants were put up. The district collector attempted conflict resolution by calling a peace meeting. Pinniyakal however walked out, and appealed to the High Court for reinstatement. Justice Chandru invoked the Constitutional mandate under Articles 15 (prohibiting discrimination against a citizen on the grounds of sex) and 51A (stressing the fundamental duty of every citizen to renounce practices derogatory to the dignity of women), to rule in favour of Pinniyakkal. His judgment expressed the resonant belief that ‘The altar of God must be free from gender bias.’
III
The status of women has long served as a civilizational index. In our times, organizations like the United Nations Development Programme (UNDP) measure it according to specific indices such as reproductive health (measured by maternal mortality ratio and adolescent birth rates), empowerment (measured by proportion of parliamentary seats occupied by females and proportion of adult females and males with at least some secondary education), and economic status (measured by the labour force participation rate of adult female and male populations). India ranks a dismal 135th (out of a total of 187 countries ranked) on the Gender Inequality Index devised by the UNDP.
We might justifiably doubt that the remedy lies in taking recourse to the very government whose laws and systems of enforcement have failed so spectacularly in their functioning so far. In the past, the considerable energies of the Indian women’s movement went into promoting legislation on issues relating to violence against women – dowry and rape, and most recently, in 2005, domestic violence – with particular success in the 1980s, when it was at its most active. Now, however, the women’s movement is extremely critical of such activism. The failure of a slew of laws passed over two decades to effect any substantial improvement in the condition of women has led to the conclusion that legal rights in themselves have limited impact if unaccompanied by other forms of critique and struggle. The laxness of the state in enforcing the laws it has passed, the limitations of policing, a slow and cumbersome legal system and the continued existence of a heterogeneous personal law structure all point to a large-scale failure of will.
It is true that so-called ‘social evils’ cannot be removed by the mandate of the state alone. Illiteracy, religious superstition, communal prejudices, rural ‘backwardness’, resistance to ‘Western’ modernity, anomie: the cultural and socio-economic explanations for the dismal condition of Indian women are many and varied, and for the most part valid. These are problems that obviously have to be attacked on many fronts: by demanding accountability of the state via law reform, stringent policing and judicial intervention, as well as by invigorating civil society measures via schools, media, religious institutions and social movements.
The role of the judiciary in this task may well be unique. While it is a division of the state’s machinery, the judiciary is strategically positioned at the interface of state and society. The courts may pronounce from on high, but they also deal directly with the people/public in responsive ways.
At the same time, the many limitations and limits of a judiciary-led social reform and pedagogy have to be acknowledged. The primary obstacle is that few women are aware of their rights, nor are they always able or willing to assert them. Justice Sridevan has deplored in various forums women’s ignorance of the law – ‘many educated women don’t even know how much their husbands earn’, she points out. In matters of property and inheritance in particular, women have to balance the potential alienation of the affection of family members against the right they possess in law to an equal share of a father’s (earned, but not inherited) property, especially if such matters have to be fought in a court of law. Apart from the incongruity of rights-talk in the realm of the family, there is of course the notoriously slow and inefficient functioning of the Indian legal system itself that acts as deterrent to the pursuit of justice by women. In 2013 it was estimated that 65,000 cases were pending in the Supreme Court and four million in the High Courts, with overall backlog figures of over thirty million cases in courts across the country. A 2009 Delhi High Court report computed that it would take 466 years for it to get through all its pending cases. Cases can wend their way for twenty years or more in the courts. It takes a great deal of patience and determination on the part of anyone, and not only female litigants, to seek out the courts for restitution in civil cases.
It must also be recognised that judgments are limited by the law. Judges only interpret the laws – they don’t make them. In National Insurance v. Deepika for instance, the Motor Vehicles Tribunal fixed the income of the unemployed housewife at Rs. 3500 per month based on the Supreme Court ruling in an earlier case (Lata Wadhwa and Others v. State of Bihar and Others , 2001), and the Madras High Court is not able to enhance this amount substantially, even though the judges opt for a different route to arrive at the same figure. It is occasionally possible for a savvy judge to enlarge the scope of a conservative law or creatively interpret it for feminist ends. In Deepika the matter of compensation for the death of a housewife in an accident was cleverly extended to apply in a completely different and highly contentious context, the division of matrimonial property.
A single, self-evident or ‘correct’ feminist position is rarely to be found. There are always bound to be a variety of putative feminist positions on any given issue, and these might well be in conflict with each other. The intersection of gender with class, religion, caste, sexuality, age or other significant aspects of a person’s identity means that a judgment is almost always called upon to negotiate the dilemma of competing rights. In Pinniyakkal, Justice Chandru is well aware of the underlying religious and caste issues at stake in the small community where Pinniyakkal is looking to exercise the priestly rights handed down to her from her father, and despite taking primary recourse to women’s constitutional rights by finding in favour of Pinniyakal, he inserts the following clarification relating to both Vedic and non-Vedic Hinduism in his judgment: ‘Fortunately the present temple is not trapped under any Agama Sastras. The subcultural deities established in the southern parts of India are freed from the norms of Manu Smriti and hence women being subordinated to homemaking alone was not warranted.’ The competing claims of the right to gender equality and the personal (religious) law system have confronted the courts repeatedly. These conflicts place female litigants in the unenviable position of having to choose between exercising their legal rights and affirming their loyalty to the religious community. In a widely publicised development of the famous case that she fought through the courts over fourteen years, the elderly divorced Muslim woman Shahbano, having finally won her case for maintenance from her ex-husband at the Supreme Court (Mohd Ahmed Khan v. Shahbano Begam, 1985), renounced it in favour of remaining a ‘pious Muslim woman,’ as she described herself.
What also gives pause to many judges is the possibility that an explicitly feminist agenda might be criticized as biased or ideological. So although there is ample warrant to assert women’s rights, judges will resort to less adversarial and more elaborate explanatory reasoning to avoid being seen as perpetuating a feminist agenda. Prabha Sridevan explained to me that she had to balance precisely such considerations while framing her judgment in Deepika, bearing in mind that it might be appealed in the Supreme Court. Responding to my observation that her judgment valorized the woman-as-homemaker in stereotypical ways, she conceded: ‘When I was writing the judgment I was only thinking of her worth as homemaker and how it is ignored. I did not deal with her right to equality, her right to dignity. I had written within the straitjacket.’ She offered the following remarks as an explanation (‘not an alibi’, she said):
The woman’s worth was neither pleaded nor argued by the counsel. It was I who brought it up and argued it. If the counsel had argued the matter, I could have asked questions and developed the whole. Those are problems in this common-law adversarial model. I was sure that on appeal the Supreme Court would say that the High Court has applied ground which was not raised [by counsel]. I told Justice Sivagnanam [her colleague on the bench] about my fear that SC would overturn, but I have got to do it. So I did not refer to Article 14, equality, or right to dignity. ‘Let us not lay it on too thick.’ I thought that the less I pontificated about her rights and the more I focussed on her work, the easier it would be for the Supreme Court to accept it! So: better to gain this victory.
IV
Despite the constraints, the impact of judicial pronouncements and judicial activism more generally can extend well beyond the immediate cases they pronounce upon, since they set a precedent for other judgments. The assertions of a higher court are authoritative and enforceable. Vishakha and others v. State of Rajasthan (1997) is one of the most influential judgments of the Supreme Court on a gender issue in recent years. Intended to provide safeguards against sexual harassment for women in the workplace, the Supreme Court bench outlined a definition of sexual harassment and issued the guidelines by which such cases would be handled in the workplace. Numerous cases have followed in the wake of the Vishaka judgment that have applied its strictures in cases of sexual harassment. Notable among them is the case of Ms.G v. Isg Novasoft Technologies Ltd in the Madras High Court (2014). In his judgment Justice V. Ramasubramanian held that the failure of the company to constitute a committee to enquire into the female petitioner’s allegations of sexual harassment was sufficient to entitle her to receive substantial damages. When disseminated, the judgments of a higher court influence even deep-set social beliefs – a survey of women in Tamil Nadu showed, for instance, that the affirmation of women’s worth in Deepika boosted their morale greatly. Nor should the agency of the women who appeal for justice be overlooked – it requires considerable initiative and courage to persist in a legal fight, as Pinniyakkal did in her confrontation with powerful social antagonists. I have confined myself to a handful of examples of feminist judgments from recent times and drawn my examples primarily from the Madras High Court, but a long list of similar judgments can be compiled from other state high courts and the Supreme Court.
Judicial activism was at its height in the period between the mid-1970s and through the 1980s. The Indian Supreme Court has been viewed as the most powerful in the world because it not only initiated change via its encouragement of public interest litigation (or social action litigation, as it was also called), it also often oversaw the implementation of its recommendations, boldly moving into the executive territory of government. For obvious reasons, public interest litigation has been a controversial instrument of social engineering and modernisation, and it may well be that in the current regime of liberalisation its socialist and populist impulse has spent itself.
The most significant interventions in Indian jurisprudence in the new millennium have arguably been made in matters relating to gender justice, and by way of what I have termed feminist judgments. The Supreme Court judgment in Anuj Garg & Ors v. Hotel Association Of India & Ors (2007), to cite a recent instance, comes to the categorical conclusion that ‘the rights of women as individuals rest beyond doubts in this age’ in a case relating to women’s employment in the hotel industry. The insistence on both temporality – the modern age – and globality – we must keep in step with the rest of the world – is much in evidence in the tenor of the arguments offered in judgements of this kind.
In every instance, it is the work women perform that is at stake. By insisting on their right to work, improving the conditions of their workplace, and asserting the monetary value of housework, each of these judgments establishes women’s worth unequivocally. Deepika, 21 years old this year, is the inheritor of her mother’s legacy.
