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The Supreme Court of India: Protector or Parent?

Written by Shrishti Mishra, fourth-year student at Institute of Law, Nirma University, Ahmedabad, India |

The Indian capital and its surrounding areas have been engulfed in a series of protests since November, 2020. These protests are led by farmers and labourers across the country against three farm reforms passed by the central government led by Prime Minister Narendra Modi. After initially being tear-gassed and hit with batons and water cannons by police forces, the protesters were called to the negotiation table. The rift, however, could not be solved and was ultimately taken up by the Supreme Court of India. While the Supreme Court rightly upheld the right of citizens to a peaceful protest, the bench headed by the Chief Justice of India sought to create a classification between men and women protesters on the basis of their sex.

The Chief Justice questioned the presence of “women and elderly” at the protest during the hearing on January 12, 2020. In fact, the Chief Justice went ahead to make a personal appeal to persuade women from participating in the present protests. He added that the court will pass an order requiring women to leave future protests, observing that women and elderly “need not be there in the protests”. While one may arguably understand the reason to ask older people to leave the protests, there appears to be no reason given by the Court to justify its stance towards women protesters.

The Supreme Court of India has wide ranging powers under Article 142 of the constitution which empowers it to “pass any order as is necessary to do complete justice” but surely the parameters of justice must not differ from man to woman. These remarks seriously jeopardise the equality guaranteed to all persons by the constitution of India under the scheme of Articles 14, 15 and 16 and strike at women’s right to self-determination recognized under international human rights conventions such as the International Covenant on Civil and Political Rights (ICCPR).

The right to equality is recognized as fundamental to India’s democratic existence and prohibits the State to discriminate among citizens on the grounds of sex alone. This is not to say that the State can never make classification wholly on the basis of sex. The State is empowered to make “special provisions” for women pursuant to Article 15(3) of the constitution. However, any such classification must be founded on the principle of rationality.  It is equally necessary that rationality must have a nexus to the prevailing social conditions. It should not be rooted in biological distinctions assessed through oppressive patriarchal norms that impulsively assign vulnerability to women allowing paternalistic values to interfere with their individual rights. Hence, while the State has power to make discriminatory laws, inherent physical differences between men and women cannot become grounds to exercise such power.

This aligns with the Supreme Court ruling in Anuj Garg where it was held that the State cannot employ the doctrine of parens patriae to become the guardian of its citizens without giving due regard to their right to self-determination. In the Court’s words, “State protection must not translate into censorship”. The Court gave these remarks while striking down Section 30 of the Punjab Excise Act, 1930 that restricted the employment of women in any part of premises in which liquor or intoxicating drug was consumed by the public, while allowing employment to men over the age of twenty-five. The Court held this law to be “an invidious discrimination perpetrating sexual differences”.

Therefore, by questioning the presence and “need” of women at protest sites, the Supreme Court has wildly overlooked its own remarks and diminished the contribution made by women to the farming sector. Today, 75% of rural women in India work as full-time farmers yet their work remains largely unacknowledged as the majority lack ownership of farm lands. This reflects the existing economic inequality in India, in which women continue to struggle to own or inherit property. The ongoing movement is an assertion of political agency by these women who otherwise remain invisible from the mainstream, in a similar way that Muslim women demonstrated political resilience in their fight against the CAA-NRC in 2020. Denial of equal rights under the garb of protection, especially when it comes from the highest court in the land, has the potential to alienate women from pursuing their constitutional and human rights. In the face of India’s poor performance to bridge the gender gap, instead of seeking guardianship over Indian women, the Supreme Court should strive to become the guardian of their fundamental rights.