Equality has to be regarded as the summum bonum of the constitutional principle
In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescension. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law.
Equality has to be regarded as the summum bonum (the highest and ultimate good) of the constitutional principle in this context.
Lord Keith in R v. R[1] declared: –
“Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.”
Lord Denning[2] states: –
“A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.”
In Shamima Farooqui v. Shahid Khan[3], the Court ruled: –
“Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority.”
And again: –
“Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality”.
In Voluntary Health Association of Punjab v. Union of India[4], Dipak Misra, J., in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership.
The issue was related to female foeticide and it was stated thus: –
“When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it.”
In Ajit Savant Majagavi v. State of Karnataka[5] Court said that,
“Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked I am glad that I am not a man; for then I should have to marry a woman, there was wit in it.
When Shakespeare wrote, Age cannot wither her; nor custom stale, her infinite variety, there again was wit. Notwithstanding that these writers have cried hoarse for respect for woman, notwithstanding that Schiller said Honour women!
They entwine and weave heavenly roses in our earthly life and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against woman continues to rise and has, today undoubtedly, risen to alarming proportions.
It is unfortunate that in an age where people are described as civilised, crime against female is committed even when the child is in the womb as the female foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.”
In Madhu Kishwar v. State of Bihar[6] this Court had stated that Indian women have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility: Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death.
In Joseph Shine v. Union Of India, (2018), the court quoted ancient shaloka and western thoughts while discussing the supreme dignity of women-
“Long back, Charles Fourier had stated: The extension of womens rights is the basic principle of all social progress.
Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:
Yatra tastu na pujyante sarvastatraphalah kriyah
A free translation of the aforesaid is reproduced below:
All the actions become unproductive in a place, where they are not treated with proper respect and dignity.
Another wise man of the past had his own way of putting it:
Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih
A free translation of the aforesaid is as follows:
The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.
Yet again, the sagacity got reflected in following lines:
Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisa
A free translation of the aforesaid is reproduced below:
The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman.”
And again-
“From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society: A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom to develop her personality to the full as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in life of the community, hers is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.”
In Charu Khurana and others v. Union of India and others[7], speaking about the dignity of women, the Court held:-
“Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity.
It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”
In Shakti Vahini v. Union of India and others[8], the lis was in a different context. The Court reproduced a passage from Joseph J. Ellis. It reads: –
“We don’t live in a world in which there exists a single definition of honour anymore, and it’s a fool that hangs onto the traditional standards and hopes that the world will come around him.”
In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed: –
“The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour.”
Conclusion
Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble.
The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual).
Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).
The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence.
It is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. And declared void such sections in statutes and customs which created a dent in the individual dignity of women.
[1] [1991] 4 All ER 481 at p. 484
[2] The Due Process of Law (London, Butterworths, 1980, at page 212)
[3] (2015) 5 SCC 705
[4] 2013) 4 SCC 1
[5] (1997) 7 SCC 110
[6] (1996) 5 SCC 125
[7] (2015) 1 SCC 192
[8] (2018) 7 SCC 192