Chief Justice of India DY Chandrachud has batted for equal participation of women in governance, policy and leadership roles, linking it to better development outcomes.
Delivering a keynote address on ‘Equality, Justice, Empowerment’ during ‘She Shakti,’ an event organised by a leading news channel, the CJI said failing to address barriers in the path of women jeopardised the quest for a better society.
The CJI said the foremost inquiry a just institution should make was whether the systems and structures were conducive to inclusivity, adding that indifference was no longer an option.
Mentioning that the Constitution guaranteed the choice to opt for both conventional and unconventional, he asked whether women got support in making unconventional choices that may not be socially sanctioned.
Before regarding any choice as unconventional, it was important to wait for the moment to pass. Tomorrow a new future would unfold in re-imagining what it was like to be a woman, he added.
The CJI said the irony of having a man as a keynote speaker for an event focussing on difficulties faced by the women of the country was hardly lost upon anyone.
The issues of safety, equality of opportunity, dignity, and empowerment were not subsets that ought to be discussed in silos. These were broader issues that would determine the kind of society envisioned for the future. Everyone in the country has to be a part of this conversation, he added.
He noted that conversations such as these were not only about women, but about the ability of the systems and social structures to design a more equal and humane society.
He said no amount of learned wisdom about the world could replace the insights of women who have shattered many a glass ceiling, adding that some of the life’s most valuable lessons that he absorbed were from women colleagues and co-workers, he noted, adding that he did not attempt to fill those shoes.
The CJI mentioned Hansa Mehta, the drafter of the Indian Women’s Charter of Rights (All India’s Women’s Conference, 1946), stating that she was an activist, diplomat, and a member of the Constituent Assembly – the body tasked with framing the Constitution. Mehta was a feminist, who famously argued that references to ‘men’ could not be used as a synonym for humanity.
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 her, Article 1 of the UDHR now reads: “All human beings are born free and equal,” said the CJI.
He pointed out that 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.
He recalled an incident, stating that his mother took him to a Marathi stage performance titled – “Aaee Retire hote,” while he was a kid.
The CJI said the Charter drafted by Hansa Mehta influenced the contents of India’s fundamental rights and directive principles of state policy. Some of the Charter’s 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.
He said 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’.
The CJI further 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.
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 added.
The CJI pointed out that one Kapila Khandwalla, a member of the Committee, dissented from its findings because she believed that they were inadequate. She hoped that in the future planned society, what would count and count alone would be the individual personality of each woman. What it meant simply was: ‘accept every woman for what she is’.
The CJI lamneted that India was yet to meet the pre-independence hopes about women’s economic participation, noting that the labour force participation of women was 37 percent and their contribution to the GDP was 18 percent.
The CJI said one of the reasons for this was the continued gendered allocation of domestic labour. Even as women entered the workforce, they were never divorced from the domestic realm. They had to simultaneously juggle between the domestic, caregiving chores and their professional duties. They were doubly burdened, which looked almost like a penalty for transgressing the domestic threshold.
Besides domestic work being unaccounted for in economic terms, it obstructed a woman’s ability to hold on to paid work or take on greater professional responsibility, he added.
Acknowledging that gender equality was a function not only of statistics but of the lived realities of women, the CJI said it applied to assimilating traditionally excluded groups such as persons with disabilities6 transgender and queer persons.
Expectations from these groups were heavily based on the stereotypical understanding of their supposedly innate tendencies. People fail to appreciate them as individuals.
The CJI further spoke about the conflicting situation females found themselves in at the workplace. He said as women broke the glass ceilings and entered professional workspaces traditionally dominated by men, they were expected to act like men. Ironically enough, they were also tacitly expected to act like women, act their part, lest they upset the code of womanly conduct.
Women may run the double risk of being labelled demure or shrill, depending on the assessor’s stereotypical understanding of how women ought to behave, he noted, adding that rewards and prejudices were entirely de-linked from the calibre of the professional and coloured by her gender identity alone.
He said women were often victims of what WEF flagged as male leadership blueprint, which meant a set of masculine attributes associated with effective leadership, an idea that may well be contrary to reality.
As per the CJI, for a large part of their lives, institutions have operated in an information deficit about the objective abilities of women. Traditionally, females were not a priority in institutional design. Even as they broke into elusive and exclusionary places, women were met with institutional apathy at best, and hostility at worst. This resulted in high attrition rates and professional stagnation at both the entry level and mid-level for women.
The CJI referred to Karthik Muralidharan’s book titled ‘Accelerating India’s Development,’ exploring the possibility of a digital human resource management information system (HRMIS).
He said the HRMIS, which was simply a digital record of employee information, created a more transparent and equitable system for promotions.
Muralidharan noted in the book how mentorship and networking opportunities eluded women and disadvantaged groups, due to their inability to participate in social spaces outside of the office. The proposal made by the author hoped to build a diverse pipeline of leaders within public systems, providing a level playing field where social networks were largely made redundant, noted the CJI.
Taking a cue from this, the CJI stated that the experience with the District Judiciary resonated with similar objectives and network-agnostic mechanisms.
He said the District Judiciary in India was recruited through a three-step exam process resembling the format for entry into the civil services.
The CJI pointed out the increasing intake of female Civil Judges who entered the judiciary through these exams. He said women constituted 58 percent of the total candidates in Rajasthan in 2023, 66 percent of appointments in Delhi in 2023, 54 percent of appointments in Uttar Pradesh in 2022, and 72 percent of the total number of judicial officers appointed in Kerala.
Even a measurable show of skill did not guard against the erasure of women’s achievements in areas beyond the normative framework, he added.
The CJI said that in 2013, British Tennis player Andy Murray was congratulated for ending the 77-year-long wait to clinch a Wimbledon title. Virginia Wade, a female British player, had won Wimbledon as far back in 1977. He was similarly congratulated for being the first to win two Olympic Tennis gold medals. What people forgot here was that both Venus and Serena Williams had won four Olympic gold medals each.
Calling it ‘male default’ a term coined by Caroline Perez, the CJI said the phenomenon treated the public domain as a male preserve, disparaging, discarding & erasing women’s experiences to the contrary.
The male default underlined gender data gaps in government planning that led to the formulation of normative and male-centric policies, which affected women negatively.
Perez justified the exclusion of women by glorifying ‘simplicity’- from architecture to policy to medical research. The idea of simpler policies being better polices per se, as claimed by Perez, was distortive. It made sense only when women were seen as an ‘added extra’ and not essential. The book suggested involving women in the decision-making to close the representation gap, he pointed out.
The CJI cited another philosopher Isaiah Berlin, who in 1969 defined two forms of liberty – negative and positive. While negative liberty entailed an absence of limitations, barriers and constraints, positive liberty envisaged positive control over one’s life and an ability to realise one’s fundamental aspirations.
He said in the 19th century, all of this came in a set of debates that hoped to settle questions about citizenship, property, access to the public sphere, and political virtue related to women. The debates collectively came 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 society. These debates formed the basis of socio-political rights such as suffrage and rights in public and private realms, added the CJI.
He said every institution must put itself to test against some basic questions, such as whether the male default was being privileged in the formulation of seemingly neutral policy choices. Were the institutes or organisations accounting for diversity in the C-suite beyond tokensim? Were there accommodations for women’s health, well-being and professional growth? Was the society viewing women as professionals in their own right? Was enough being done to preserve both negative and positive liberties for women?
Noting that it was high time to foster institutional and individual ability to look beyond the ‘male default,’ the CJI said women still had to justify their choices, unlike their male counterparts. Their access to basic resources such as education, employment and advanced resources such as mentorship and social capital were still chequered.
The CJI said the Preamble of the Constitution envisaged social justice and equality of status & opportunity.
An aspirational document scripting the future of the country, the Constitution proscribed 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.
The CJI said there was no dearth of substantive and procedural legal provisions targeted towards protecting the interests of women in private and public situations. However, good laws alone did not make for a just society. Above all, there was a need to change mindsets.
The mindsets must move from making concessions for women to recognising their entitlement to lead lives based on freedom and equality. It was important to zealously guard against apparently protective laws infringing women’s liberties and choices, for instance, laws prohibiting women’s employment in establishments serving liquor, he added.
He said in Anuj Garg vs 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.
While legal goalposts did afford substance to the Constitutional guarantees, they did not exonerate the institutions.
The CJI referred to Martha Nussbaum’s book titled ‘Sex and Social Justice’, which argued that all human beings, regardless of gender, had a dignity that deserved respect from laws and social institutions.
Injustices persisted despite and beyond laws. The laws themselves were not empowering. They were a step in the direction of social change, a change that existed in a more deliberate, long-drawn and persistent process led by the people who constituted these institutions.
He also mentioned Dakshayani Velayudhan, who was one of the 11 founding mothers who signed the final draft of the Constitution.
The CJI quoted the 31-year-old as saying that the working of the Constitution would depend on how people would conduct themselves in future, rather than the law alone.
He said 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 counterparts, added the CJI.
The CJI concluded by stating that as per the World Economic Forum, gender disparity in employment was on the decline and women’s salaried employment was set to increase.1