Jayna Kothari participated in the Interdisciplinary  Workshop  held  on  11 – 13  October  2018 at Humboldt University of Berlin. She was one of the panelists in ‘Systems  of  Inequality’ and presented her paper titled ‘Is the Supreme Court Cherry Picking its Gender Battles?’.

The introduction to her paper is:

This paper seeks to understand how the Indian Supreme Court has made / unmade laws relating to gender equality in the current decade.  The Supreme Court’s history on gender equality over the last few years, particularly since 2010 has been interesting and as I would argue, selectively progressive.  In cases relating to gender identity and transgender rights, the Supreme Court has been extremely forward looking. In 2014 the Court recognized the right to self-identify one’s gender identity as an integral part of the right to life, dignity and autonomy.[1] This was followed by the Puttuswamy judgment in 2017 where again the Court reaffirmed that the right to privacy would include one’s right to gender identity.[2]  In 2017, the Supreme Court in Independent Thought v. Union of India, read down the exception to the criminal law on rape which excluded marital rape unless the wife was 15 years or younger, to hold that sex with or without consent even in case of married women would be rape where the wife was under 18 years.[3]  On the other hand, the Supreme Court intentionally did not pronounce on the equal rights of Muslim women within marriage while holding instantaneous Triple Talaq as being unconstitutional and chose to decide the question on religious grounds alone.

I would argue that there are several reasons for the Court to take such different approaches to gender. First, these different approaches are partially due to the constitution of the benches. Sitting patterns and constitution of Benches often decide the outcome of judgments and we need to be alive to bench selection particularly in the context of gender.

Secondly I argue, that the Supreme Court is selective in its articulation of rights on the grounds of gender. It is more likely to make pronouncements on sex and gender equality in what I term ‘easy cases’ where there is no threat to the status quo in a significant manner. In ‘hard cases’ where the question of women’s equality is pitted against the right to religion or when it has the impact of affecting the status quo in marriage or family, decisions are not made in favour of women’s equality.

I conclude my paper by suggesting that the Supreme Court cannot tiptoe around gender equality. It has failed to internalize the constitutional guarantee of equality and non-discrimination in the context of sex, gender and gender identity. A true test of such internalization would be if the Court were to apply it in hard cases, which relate to gender based violence, domestic violence, marital rape, in personal law matters and not just a few cherry picked cases.

[1] National Legal Service Authority v. Union of India (2014) 5 SCC 438

[2] (2017)10 SCC 1

[3] (2017) 10 SCC 800