Amartya Sen in his “Idea of Justice” propounded that a society becomes just when the social institutions are able to unleash the full potential of individuals so that no one is disadvantaged only because they were born a particular way, at a particular place, in a particular family, into a particular caste or with a particular sex assigned at birth. Corroborating this idea with the preambular goal of securing economic, political and social justice to all and with the constitutional goal of ensuring substantive equality to all, it becomes amply clear that all the social, political and economic institutions should be built in a way that they do not disadvantage a woman just for being a woman.

However, institutions in Indian society are patriarchal and they predominantly run on the principle of male practical reasoning which is different from feminist practical reasoning. The former looks at the challenges women face in reality because of the gender-blind institutions and laws, the latter protests at stereotypes and discrimination against women under the garb of practicality.

This February, a manifestation of “patriarchal practicality” was seen in the State’s arguments against granting permanent commissions to women in the Indian Army in Secretary, Ministry of Defence vs Babita Puniyaa & others.  The note submitted by the government said that women had to worry about their families, children’s education and spouse’s career and separation from families would affect their performance on the battlefield. Besides this, prolonged absence due to pregnancies and motherhood and inherent physiological differences between men and women were cited as other reasons. The State also argued that units were dominated by rural men who were not schooled to take orders from women and were rather used to giving orders to them. So, they would have a hard time adjusting with woman leaders.

Despite the victory of women army officers in the case, the State’s stance on women continues to be patriarchal, as in the case of Union of India vs Lt Cdr Annie Nagaraja and others, where the same division bench of the Supreme Court had to decide on granting permanent commission to women navy officers. The State again pointed out the physiological differences between men and women and how these differences could limit their contribution to the naval forces. It also highlighted that women officers could not be granted permanent commissions because the navy’s Russian vessels lacked lavatories for them!

Labelling the infrastructure incompetence of the State or its lack of commitment to gender justice as the inability of women to serve in the military is unjust. Sadly, these stereotypes are not confined to courtroom discussions but are clearly visible in empirical data. Nearly 20% of positions of doctors and dentists with permanent commissions are occupied by woman whereas only 3.8% of positions in the army are held by them. Note that the right to hold permanent commissions in the army and navy was won after a long judicial battle that stretched for more than a decade. And women still cannot serve in combat units. All these reinforce gender roles, assigning compassion, care and complacency to women and aggression, vigour and strength to men.

There is thus a huge gap between what the State has constitutionally and internationally committed itself to and what it has implemented and is willing to. The constitutional goal of social justice cannot be achieved without eliminating stereotypes against women. Not allowing for equal opportunity in jobs for women despite the existence of Articles 14, 15 and 16 which aim at establishing substantive equality and, instead, countering these strong constitutional commitments with some fact-free stereotypes, as was done in the above two cases, amounts to failing the Constitution.

Furthermore, Article 5 of the 1973 conventionto eliminate all forms of discrimination against women (CEDOW), which India ratified in 1980, provides that the State-parties should configure social and cultural patterns via policies to eliminate prejudices based on the inferiority and superiority of genders. Despite this, the gender policies of the government are blatantly inconsistent with the convention.

The decision of the division bench in the cases above is a welcome step but a court ruling alone cannot change mindsets. However, maybe exercising pre-legislative caution and employing feminist practical reasoning while making policies and laws in the first place would facilitate the schooling of all the unschooled army men to take orders from women or treat women on par. Maybe it will enable the jawans to carry similar attitudes back home and allow the women in their homes to be more independent and economically self-reliant. Maybe the empowerment of women belonging to the families of these jawans will also lead to empowerment of the women in their neighbourhood, in their villages and in their cities. Maybe this will speed up the social revolution that our Constitution envisages in its Preamble, parts 3 and 4.

However, this can only happen when not only the judiciary but also the executive and the legislature act more responsibly and make policies and their implementation more gender inclusive, instead of thrusting the whole burden upon women and their physiology.

With the huge disparity in the labour force participation of men and women wherein three out of four women above the age of 15 years are neither working nor seeking a job, the opportunity cost of patriarchy is high. India is said to lose GDP nearly equivalent to the size of the whole French economy due to the exclusion of millions of women from the labour force. The need of the hour is to frame policies and implement them with a sense of what women want. This needs to happen through sensitising male policymakers and administrators. It is high time that the legislature stopped waiting for the judiciary to solely champion gender justice and, instead, took the baton of drafting and crafting gender-inclusive laws in its hands.

Source: Deccan Herald