A Supreme Court judge, BV Nagarathna, known for her fierce judicial independence spoke on “75 Years of the Indian Constitution—Supreme Court and Social Justice: A 75-Year History.” Columbia Law School organised the event in Association with CEDE, the American Constitution Society, the Center for Constitutional Governance, and the Institute for Comparative Literature and Society.
At the start of her address, Justice Nagarathna stated that our transformative constitution’s bold aspirations are manifest in its grant of rights and remedies against oppressive social wrongs such as prejudice, stigma, and exploitation.
What is this constitutional vision of social justice?
In answer to this question, Justice Nagarathna said that social justice is an ideal that is achieved through the progressive elimination of injustice and inequity in society. It calls for transformative efforts to undo the impact of pervasive social hierarchies and past injustice. It also demands the creations of conditions of justice.
Elaborating on these conditions of Justice, she said that these would emerge from an active process of remedy of preventing an act, decision, or situation that would arouse the sense of injustice in the people. The special constitutional provisions and safeguards for weaker sections of the society manifest the intent to create such conditions of justice.
“For instance, by granting political reservation to schedule caste and schedule tribes the Constitution ensures that the members of socially marginalised groups are not excluded from political executive and governance. In that sense constitution sets a benchmark for inclusive governance and social justice.,” she added.
Supreme Court’s Contribution to quest for social justice
Justice Nagarathna shared her insights on Public Interest Litigation, where the doctrine of locus standi was substantially diluted to enable the concerned citizens to seek the indulgence of the constitutional courts to remedy an instance of social injustice.
To strengthen this, she cited the landmark case of Hussainara Khatoon vs. State of Bihar, in which a PIL was filed by two Supreme Court advocates underscoring the plight of thousands of under-trial prisoners languishing in various jails. This, in turn, resulted in the release of over 40,000 under-trial prisoners.
“PIL is the incarnation of the judicial activism in its people oriented litigative dimension. The Court demonstrated a willingness to act as a bridge between life and law, to blend the structure of adjudication to the needs of the vulnerable members of the society. As a result, undertrial as well as convicted prisoners, women in protected custody, children in juvenile institutions, bonded and migrant labourers, unorganised labourers, Sc and ST, landless agricultural labourers who fall prey to the faulty mechanisation, slum dwellers and pavement dwellers, these and many more groups now come to the Supreme Court seeking justice.”
Notably, she also highlighted that at a certain point, the Supreme Court had a specially created Bench designated as a Social Justice Bench, which assembled every working Friday at 2 pm to hear public interest litigation and other writ petitions.
Justice For Women
Speaking under this head, she shared several landmark judgments that have led to the progress of justice for women and sexual minorities. In this respect, she also referred to publication of “Handbook on combating Gender Stereotypes” saying that this would deepen public trust by correcting anti-women prejudices. It may be recalled that it was only last year that this handbook was published to identify and remove the use of words that are loaded with gender stereotypes in judgments and court language.
The judgments discussed during the address included CB Muthamma v. Union of India and others., in which Muthamma an officer in the Indian Forest Service challenged IFS rule which prohibited married women from being appointed as a matter of right and required a woman member to obtain permission before her marriage. Though the government withdrew this rule, former Justice Krishna Iyer held:
“Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.”
Underscoring women’s financial impendence, she cited the case of Govt. of A. P v. PB. Vijayakumar. In it, the former Justice Manohar Sujata, the second woman judge of the Supreme Court, upheld policies that provided special reservations for women as a measure to achieve effective equality.
“The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women.,” the judgment stated.
In Anuj Garg v. HotelAssociation of India, the Supreme Court struck down Section 30 of the Punjab Excise Act, which prohibited the employment of any man under the age of 25 and any woman in any part of an establishment in which liquor or another intoxicating drug was being consumed. The Court termed such an Act pre-constitutional legislation.
In furtherance of this, she apprised her audience of the progressive journey in the field of personal law. For this, she referred to the landmark judgments, including Shayara Banovs Union Of India. In this, a constitutional bench of the Top Court of India struck down the practice of Triple Talaq as illegal and violative of fundamental rights guaranteed under Article 14 of the constitution.
It is noteworthy to mention that, following this, the government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, prohibiting triple talaq as void and illegal. It provides imprisonment for up to 3 years and a fine to the husband who practiced instant Triple Talaq.
Further, in Vineeta Sharma v. Rakesh Sharma, the SC recognized the rights of a Hindu daughter to be a co-parcener alongwith her brother in respect of the division of coparcenary property.
Women in the legal profession
Justice Nagarathna said that women in the legal profession have come to stay and have made a real mark in the legal profession both as lawyers, advocates, and the bench.
“I must say one thing that in order that women are not ignored in the legal profession or on bench they must put in more effort, I suppose. This is the feeling I have that if I should not be ignored by being a women in the legal profession or on the bench, I must make a mark. For that I must put in more effort. I do not know whether men in the legal profession or my male colleagues would have to put that much effort. The effort is not in order to get a bouquet or a pat on the back but simply to say that look I am here too and I am not an adjunct I am part of the entire system and I have a right to contribute to the justice of this country in the same way as any male judge would and therefore I think psychologically if we think that we need to put more effort the effort is worth it then secondly with regard to gender” she added
Workplace Harassment
Justice Nagarathna also touched on the aspect of sexual harassment against women at workplaces. For this, she cited the decision of Vishakha v State of Rajasthan where the Top Court addressed deep rooted gender inequality at workplace and passed detailed guidelines, by invoking its inherent jurisdiction to deal with workplace sexual harassment against women.
Following this, in 2023, Aureliano Fernandes Versus State of Goa And Others, the Supreme Court of India has issued a slew of directions for the proper implementation of the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 all over the country.
Justice for sexual minorities
Speaking about the progress in the justice for sexual minorities, Justice Nagarathna mainly cited the two landmark judgments in this field, starting from NALSA v. UOI, where the Court said that the right to self-determination for transgender persons is an instance where it has led the complex social process of inclusion. While crafting the range of remedies for transgender persons, it held that they were a socially and educationally backward class of citizens who ought to be eligible for affirmative action in education and employment besides welfare and other policies. It was held that the State was bound to take affirmative action for their advancement so that the injustice done to them for centuries could be remedied. This, in turn, led to the enactment of the Transgender Persons (Protection of Rights) Act, 2019.
Pursuant to this, in Navtej Singh Johar & Ors. v. Union of India, the Top Court decriminalized all consensual sex among adults and led to the inclusion of the LGBTQ community in mainstream society.
By the end of her address, she also shed some light on how, in 2020, during covid 19 (Gujarat Mazdoor Sabha v State ofGujarat), the Supreme Court quashed the notification issued by the Gujarat Labour and Employment Department granting exemptions to all factories in Gujarat from provisions of the Factories Act, 1948 relating to daily working hours, weekly working hours, intervals for rest and spread overs of adult workers as well as from payment of overtime wages at double rates.
A bench of Justices DY Chandrachud, KM Joseph & Indu Malhotra held that the pandemic cannot be a reason to do away with statutory provisions that provide dignity and rights for workers by the Gujarat Government. In this context, the bench has stated that the pandemic is not a “public emergency” within the meaning of Section 5 of the Factories Act threatening the security of the country.
After discussing these and several other judgments including in the field of disability rights, Justice Nagarathna said: “The above discussion of the SC’s role in advancing the role of social justice is a testament to the fact that it is an institution that is responsive to aspirations of a rapidly changing social milieu. I am assured that in the decades to come, the SC as a composite institution would serve we, the people of India in a more effective manner and steer the chariot of a social justice towards a constitutional destiny. For that we must believe in our constitution, we must believe in the preamble, the chapter on the fundamental rights and the directive principles, the goals that it has envisioned and the fact that it is eternal and all enduring.”
Q & A with Justice Nagarathna
At the end of the session, Justice Nagarathna also answered two questions asked by the audience. One of the questions surrounded the recent development where, last year, she, in a split verdict, allowed the medical termination of a 26-week pregnancy of a married woman. In view of this, the matter was referred to a 3-judge bench led by the Chief Justice of India, and ultimately, the Court rejected the abortion plea.
The question posed was: How do you see the Indian Legal system responding to such a scenario in the coming days? Whether it is going to be pro life of fetus or pro abortion in light of new emerging technologies facilitating such reproductive rights of women.
Replying to this, she said that, ultimately, the facts of the case give rise to a judgment one way or the other. Every case that comes up regarding termination of pregnancy must be viewed in the context of the facts and the surrounding circumstances in which the lady is placed and she is asking for the termination of her pregnancy.
She also added that it is only when the termination of pregnancy is outside the scope of the Medical Termination Of Pregnancy Act of 1971 that this debate begins.
“But if we view the plea made by a woman in the context of how she is placed, what the facts and circumstances are then this debate would actually fade into insignificance. Of course the health condition of a fetus has been given importance now but let me say that if it is a case of a minor child seeking unwanted pregnancy which has arisen on account of a sexual assault whether the question of pro life would be considered or the circumstances in which the minor assault victim is placed to get rid of unwanted pregnancy is to be considered.,” she added.