Gender Equality Watch- November 2017

 

Gender Equality Watch

This monthly series by Safecity will track the latest decisions of Indian courts on women’s rights and equal access for all genders. The aim is to make the functioning of our judicial system more accessible to readers, to create a well informed body of public opinion, and to ensure that we know our rights.

Written by Sanaya Patel*

Edited by Vandita Morarka

November 2017

  1.   Supreme Court Order: The case for decisional autonomy of an adult woman.

Case: Shafin Jahan v Asokan K.M. & Ors

Date: 27 November 2017

Coram: Dipak Misra, Chief Justice of India, A.M. Khanwilkar and D.Y. Chandrachud, JJ.

Facts:

Hadiya is a 24-year-old woman from Kerala. She was pursuing medicine from a college in Salem, Tamil Nadu. Hadiya (earlier named Akhila) converted to Islam of her own free will and married Shafin Jahan in December 2016. Her father filed a habeas corpus petition in the Kerala High Court, alleging that she had been forced to convert to Islam, and was likely to be transported out of the country. A habeas corpus petition is used to free a person from unlawful detention, literally translating to “bring the body”. Hadiya, on oath and in an affidavit before the Court, stated that she converted to Islam and married her husband of her own will.

In May 2017, the Kerala High Court annulled the marriage, labelling it a “sham” and a case of “love jihad”. The Court declared that the adult woman was incapable of making her own choices and directed her to live in her Hindu parents’ custody in Kottayam, Kerala. Hadiya’s husband filed an appeal against this decision, to the Supreme Court.

The Supreme Court roped in the National Investigation Agency, the central agency established to combat terror in India, to probe the circumstances of the marriage. On 27 November 2017, Hadiya was called to the Court and asked what she wanted. She said she wanted to be free of her parents’ custody and wanted to live with her parents. She also wanted to complete her medical course at Salem.

Decision:

The Court freed Hadiya from her parents’ custody and allowed her to return to Salem and finish her studies. The order stated that she was to stay in a hostel. The questions about her marriage will be heard in January.

 

Does an adult have the right to make her own choices?

Hadiya has clearly stated that she wanted to convert to Islam and that she wants to live with her husband. In the recent judgment on privacy, the Supreme Court recognised the autonomy of every individual and regarded the freedom to choose as fundamental to personhood. In this case, the Court ignored this adult woman’s wishes, and instead ordered a probe into the circumstances of her marriage by an agency whose primary function is to investigate terror in the country.

Hadiya’s own testimony, that she converted to Islam because she wanted to, and that she married Shafin Jafan because she wanted to, was ignored by both, the Kerala High Court, and the Supreme Court. For the Court to decide who should be the guardian of an adult woman in India demonstrates its blatant disregard for the bodily autonomy and freedom of women.

Hadiya is not free. The principal of her college said that her parents are her guardians, and she will not be permitted to meet anyone but her parents, when she returns to study.

The real question for the Court is not whether Hadiya was forced to convert. It is whether as an adult, she has the right to choose where to live and whom to marry (answer: yes). The choice is not yours, not mine, and is certainly not her parents’ nor the Court’s. It is hers, and that is the definition of autonomy.

 

  1. Supreme Court: Jury system under Parsi Marriage and Divorce Act, challenged.

Date: 24 November 2017

Coram: Kurien Joseph and R. Banumathi, JJ.

Facts:

Naomi Sami Irani filed a Public Interest Litigation (PIL), challenging the provisions under the Parsi Marriage and Divorce Act, 1936,  which calls for the constitution of a jury in cases of divorce. The Petitioner claims that the provisions violate Article 14 and 21 of the Constitution, which call for equality and the right to personal liberty. Jury trials were abolished in 1960 to make way for an unbiased adjudication system in India. Incidentally, the case that led to the abolition was that of the murder of his wife’s lover, by a Parsi naval officer, K.M. Nanavati.

The present petitioner has challenged the retention of the jury, arguing that it cannot be retained for one community alone, when it has been abolished in the country, decades ago. The Act, itself, predates the independence of India. The petitioner prayed for cases under the Act to be heard by Family Courts, instead.  

Supreme Court to examine validity of jury trials:

The Division Bench of the Supreme Court has agreed to examine the validity of jury trials for Parsi matrimonial disputes, through this PIL.

The system has come under fire before, in 2014 and 2016, for causing undue delay in proceedings. The Bombay High Court has observed, “Belonging to any particular community is not a mantra for clinging to a system that ill serves its purpose or the interests of the community itself. A procedural reform is not a matter of faith or religion … Achieving a fair and just result by and within law is no apostasy. No faith could possibly demand that its adherents be made to wait endlessly for their cases to be decided.”

 

  1. Supreme Court Notice: Transgender person denied job in cabin crew at Air India

Date: 6 November 2017

Coram: Dipak Misra, Chief Justice of India, A.M. Khanwilkar and D.Y. Chandrachud, JJ.

Facts:

Air India denied petitioner, Shanavi Ponnusamy, a job in cabin crew, allegedly stating that there was “no category” for Ponnusamy. Ponnusamy further approached the Supreme Court when informed that cabin crew jobs were only available for women.

Notice issued by the apex court:

The Supreme Court issued notice to Air India after the petitioner accused the airline of gender discrimination.

Gender inclusive employment policies required:

This step taken by the Court is a confirmation that workplaces in India must revise their policies on recruitment to make them more gender inclusive. The fundamental rights of transgender persons were recognised in the 2014 apex court judgment of National Legal Services Authority v. Union of India, and yet, India has failed to create policies that protect these rights. The Constitution demands that all people, irrespective of gender, must be treated equally. Transgender rights affirmed, India must implement gender-inclusive policies in the workplace, in educational institutions and for other public health and welfare services.

Progressive policies in Bihar, Delhi, Calcutta:

On the brighter side, in February 2017, Bihar became the first state to introduce a third gender option in the Bihar School Examination Board tests. In September 2016, the Delhi High Court directed the UPSC to include the “third gender” as an option in their application forms. A PIL filed in the Calcutta High Court on 13 November seeks to introduce the option in the State Public Service Commission examinations.

 

  1. Delhi High Court Decision: Mere physical contact without sexual overtones does not amount to sexual harassment.

Case: Shanta Kumar v Council of Scientific and Industrial Research & Ors

Date: 31 October 2017

Coram: Vibha Bakhru, J.

Facts:

An employee of the Council of Scientific and Industrial Research (CSIR) alleged that her co-worker had sexually harassed her in a laboratory. The petitioner claims that her co-worker entered the lab, snatched samples from her, and threw the materials. After that, he pushed her out of the lab and locked the lab. The Complaints Committee and Disciplinary Authority decided that this was not a case of sexual harassment. The petitioner filed an appeal to the Delhi High Court.

Decision:

The Court noted the facts of the case and stated that mere physical contact, even though unwelcome, would not amount to sexual harassment if it was without sexual undertones and regard to the petitioner’s gender. The Court also noted that the petitioner had not complained of sexual harassment in her initial complaints to the Committee in 2005.

What kind of physical contact amounts to sexual harassment?

This case is important because it clarifies what can and cannot amount to sexual harassment at a workplace. The Court cited the definition of sexual harassment as per Vishaka & Ors v State of Rajasthan. Only if an act is in the nature of an “unwelcome sexually determined behaviour”, would it amount to sexual harassment.

Although this definition finds its place in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that the court affirms it in a case (as it should) is an important reminder of the gravity of such acts, and must be seen as a control against the misuse of legal provisions.

 

*Sanaya Patel is a Research Assistant under the Policy and Legal Team at Safecity (Red Dot Foundation).

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