 Good evening to all those participants who are watching us live on the YouTube and those who have connected on the Zoom, on this platform. Today is a special session because we take the session into, I can say, into two parts. One is the judicial perspective on gender, where Honorable Mr. Justice S. Ravindra Bhatt would share his insights and the second part we can say is split into social gender perspectives. By Justice Roshan Dalvi, those who have been connected with Beyond Law CLC, they know that former justice from Bobby High Court has given her insights on different perspectives. And we thought of connected with these two eminent speakers because we know they are quite close and their judgments speak for the volumes on the perspectives of gender. And therefore, when this topic came in our mind, the first thing was that we should connect with them and we requested Justice S. Ravindra Bhatt and Justice Roshan Dalvi. Both have been kind enough to accede to our request. And before we start for the session, we would like to introduce Honorable Justice S. Ravindra Bhatt, though he needs no introduction as such. But as they say that still those who have connected for the first time on the social media, you would like to introduce the words regarding his wisdom automatically from the judgments which he penned or wherever he speaks. And the judgments are always in a simple and elucidated manner, which are simple to understand. And they also gave a different spectrum of thought process, not only which ignites the judicial mind, but also to a common man. Justice S. Ravindra Bhatt studied law and completed his LLB. From Campus Law Center, University of Delhi in 1982, he was enrolled as an advocate with the Delhi Bar Council in 1982 and practice in Supreme Court, where he was enrolled as an advocate on record of that court in 1989. As a lawyer, Justice Bhatt practiced in public law, employment, education and constitutional disputes. He was appointed as an additional judge of Delhi High Court on 16th of July 2004 and as a permanent judge on 20th of February 2006. During his tenure as a High Court judge, he headed juvenile justice committee for four years and also presided first e-court in this country in 2009. While we speak of e-court and during these testing times, who could have thought that the perspective which came in 2009 would actually when the COVID come into being the e-courts not only for the purposes of filing etc. But the technology would be used for the betterment during those testing times. And we are grateful that he gave us that window to understand what could be in the e-system. He was appointed as the Chief Justice of High Court of Rajasthan on 5th of May 2019 and elevated as a judge of the Supreme Court of India on 23rd of September 2019. In his judicial career, Justice Bhatt has delivered many judgments and large number of them are important and they are referred in different courts, not only in the High Courts but also in Supreme Court of India. The most notable ones about the obligation of the Supreme Court and High Court judges to declare the personal assets to the Chief Justice and the coverage under the RTI Act and several diverse branches of civil law. Such as the right to the DNA evidence in paternity suits, public interest in the pharmaceutical patents, liabilities of the internet intermediaries, affirmative action, gender and disability law, criminal law, capital sentencing and international taxation. Justice Bhatt was the first High Court judge in the country to preside over paperless or e-court. He has presented papers on intellectual properties, right laws and attended international conference, including at the word trade organization in June 2015 and most recently at Deakin law conference in Melbourne in May 2017. He was also part of the Justice Bhinn Shri Krishna committee on arbitration reforms in India, set up in the law ministry by Government of India in January 2017. Once we look into it, I am reminded the opening lines of the Adhaar judgment is not important to be number one, but it is important to be unique. And the way Justice Ravinder Bhatt has stated his footprints on the digital, social and other judgments reminds us that I start from that line again. It's not important to be number one, but it is important to be unique because you are the only one. And his showing his indeniable marks in different perspective speaks of that. And when we talk of gender perspective, there are a large number of judgments which take us to this journey. But who can miss Air India versus Nargis Mirza, C.V. Mathuma versus Union of India. Vishakha versus State of Rajasthan, which gave a different perspective in terms of the gender law when we speak of different perspectives. How the Porsche Act was triggered off and how it has evolved and devolved with the flux of time. Sabri Mala, Triple Tlaq, Joseph Shein versus Union of India. There are so many judgments, but today is the day when we have Justice Ravinder Bhatt to share his insights on the judicial perspectives on gender. And Justice Roshan Dalvi as I said, on social gender perspectives. A book, Woman, Heart Trials and Cramps, speaks of that. Amongst these speakers, we also have Justice Vimla, a former judge from Madras, I quote. And also is heading the Law Commission in Madras. The Beyond Law C.L.C. team is enamored by the fact that they all have joined with us and all those participants who are watching us. We will be taking the question and answers at the end of the session. Without taking much time, I will ask Justice Roshan Dalvi to take over and give the introduction of the topic and we will take things forward hereafter. Over to you. Good evening Justice Bhatt, Justice Vimla, Vikas and all my friends. The topic is very topical and that is that gender is all pervasive. It is wrong to feel that gender means only laws relating to marriage and divorce or on the criminal side laws relating only to rape or sexual abuse. There are so many facets of gender in everyday life for everyone because we live in families which have a grandmother, a mother, a sister, a daughter, a wife, all of them relate to gender. So and it's not only for women, it is for all things relating to the sociological aspects of what womanhood and manhood is. So that is what we deal with. And therefore we have said that it will be divided into two parts. Justice Bhatt first, for the judicial perspectives, I will give you the legal and social perspectives a little later. Thank you. So Justice Bhatt for you. Good evening Justice Roshan Dalvi, Justice Dr. Vimla, Mr. Vikas Chhatrat organizes of this event and all participants joining us virtually for this webinar. I thank Beyond Law CLC for inviting me to speak on this topic on the occasion of release of Justice Dalvi's wonderful book. Having received an advance copy of the manuscript of her Trials and Trials, I have to admit that I'm wholly enjoying reading Justice Dalvi's journey in this field. And I'm grateful that she has taken the time to so comprehensively pen her learnings and reflections for the benefit of others. Written in accessible and simple language, this comprehensive work promises to be a great resource, not just for those who are interested in gender studies and related legal frameworks, but those entirely uninitiated to the law as well. I congratulate her for this worthy contribution and hope it will receive wide readership. Since the topic is very broad and the level of nuance a short webinar may not may be insufficient to cover in, I wish to briefly address you on broadly three themes. Firstly, special provisions under article 15, under the article 15 framework of the constitution. Secondly, the history of gender sensitization through legislative action. And thirdly, the limits or lack thereof in contemplating the concept of gender within the constitutional text and language. In doing so, what we will come through is that is the interminable as interminable impact or the role of courts for good or for worse in shaping all these three aspects. In India, the general rule of non-discrimination embodying in articles 15 one and two prohibits discrimination on the basis of race, religion, caste, sex or birth and forms the content of a negative right. Articles 15 three and 15 four on the other hand, permit special provisions in the form of affirmative affirmative action or a or reservation, allowing the state to use these attributes as indicators of backwardness or historical wrong, which in turn forms the content of a positive right. Protective discrimination or affirmative action can be characterized as overt action by the state to facilitate equal opportunity, participation and diversity that transcends historically and socially marginalized identities. To put it simply, articles 15 and 16 prohibit discriminatory treatment, but not preferential or special treatment of women, which is also in line with article 10 three, the declaration of elimination of discrimination against women 1967. Often there is a dangerous misconception that special measures are themselves discriminative in nature. Increasingly there is a need for greater sensitization against this notion. In fact, the Supreme Court in Champakandurai Rajan in 1951 had struck down a quota notification allotting a certain percentage on the basis of caste for admission to professional courses. This was rendered null and overridden by the First Amendment, the First Amendment to the Constitution. When the Prime Minister in Parliament while tabling the bill explained that in trying to attain equality, we have come up against certain principles of equality, laid down in the Constitution, that is a very peculiar position. We cannot have equality because we cannot have non-discrimination, for if you are thinking of raising those who are down, you're somehow affecting the status quo undoubtedly. You're thus said to be discriminating because you're affecting the status quo. While this was in the context of caste, it is equally true even in relation to gender and sex. We must therefore bring to the large mass of people the idea and understanding that substantive equality demands that we make special provisions to further that equality. Courts have routinely recognized that special provisions contemplated in Article 153 and 4 are in fact a facet of Article 14 and vital to bring about equality among unequals. The judicial perspective or approach therefore would be to understand the importance of striking a just balance between the aspirational rights and the corresponding duties of the state to introduce affirmative measures, combating equality, inequality on the one hand, and the principle of equality as well as its command against practicing inequality in proscribed areas, sex, caste, religion, etc., being examples. In the context of caste and class, affirmative action policies manifested as the quota or reservation model for public education and employment and remain largely limited to it. Special provisions on the basis of gender however have been interpreted to include any special provisions that the state considers necessary in the interest of women. Thus this has developed more robustly and holistically through several legislations, some of which I will briefly address and discuss shortly. In interpreting Articles 153, Courts have recognized that it does not operate in a vacuum and often refer to Articles 39, 42 and other directive principles while examining such policies. In a judgment rendered in 1995 by Justice Sujata Manohar, that is, Government of Andhra Pradesh versus Vijay Kumar, the Supreme Court upheld job quotas for women in public employment on the reasoning that Article 153 is in fact wider than Article 164, which enables reservation in public employment for schedule cast and schedule drives and other backward classes. And said that such preferential quotas would fall within the ambit of special provisions. It was noted that insertion of clause 3 of Article 15 in relation to women is a recognition of the fact that for centuries women of the country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activity of the nation on affording of equality. It is in order to eliminate this socio-economic backwardness and hence in a manner that would bring about effective equality between men and women, that Article 155 is placed in Article 15. 153 is placed in Article 15. Legislative, however, reservation for women are limited. The main reason being that gender is not an identity attribute around which political mobilization happens as it does around the lines of religion, caste and region. The 73rd and 74th amendment, which mandate quotas for women and panchayats and municipalities respectively, demonstrate how reservations can help in redistributing power through participation and representation, which have been upheld by the courts on past occasions. The women's reservation bill, which had been framed in 2008, similarly mandated a certain quota of one-third that is 33% reservation for women in Lok Sabha and state legislative assemblies. But that bill has lapsed. Many states have, however, made some quotas, 30%, 25%, etc., in certain segments of public employment. The court's jurisprudence is replete with examples relating to combating direct and indirect discrimination based on the equality doctrine of Articles 14 and 15. Many years ago, in Mutammah, which Mr. Chhatrat adverted to, the Supreme Court recognized the unfairness and discrimination apparent in a service rule, which required a woman official of the Indian Foreign Service to secure permission for getting married and armed the government with the power to terminate her services if it was satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service. The Supreme Court outlawed that rule. More recently in Secretary of Ministry of Defense versus Babita Punea, this court noted that the discriminatory nature within the army of limiting the status of women officers and offering differential or no retrial or other benefits to them. The central government's policy to offer permanent commission only to women officers who had served less than 14 years, citing physical limitations of older women officers, was also held to be unacceptable for violating their fundamental rights. In another case, an older one, I think it's 2009, Anuj Garg versus Hotel Association of India, the state enactment and regulations prohibited employment of women in any part of the premises in which liquor or intoxicating drugs were consumed. The court opined that such a restriction was violative of Article 15, as it resulted in a restriction to employment based on sex of the individual. Despite it being a case of direct discrimination, an impact based approach was also employed and discussed extensively. Recently in another case, Hotel Priya, which also relates to regulation of dance bars, the court examined a seemingly neutral policy or regulation which had a disproportionate impact on female performers and required the court to look through the intersectional limits of class and gender. The rule limited the number of male and female performers in, I think this was music bars, which do equal in number, inordinately and arbitrarily restricted women's employment, as it is predominantly them that work in these establishments. As you can see a lot of these cases arose in the context of public service or employment, as these intersections and differential power equations are rife with such circumstances. The Sabri Malar Temple entry case offers a different illustration. While considering access, more particularly Article 15-2, the Supreme Court brought an interpretation of Article 17 into this framework, making it more enforceable. It was held at exclusion of menstruating women from religious places and practices on the justification that they are considered impure. That time amounts to a form of discrimination akin to exclusion of oppressed caste as untouchable. Empowered by Article 15-3, the state has time and again, and sometimes directly as a result of the court's prodding, made positive interventions in the form of policies and legislations for protection of women. The infamous Mathura rape case and the consequent amendments to the law. More recently the Nirbhaya case and the resulting criminal law amendments in 2013 have led to rapid development in the punishment of crimes against women. From the famed Rupandeval Bajaj case, where the Supreme Court in the absence of a provision read protection of women against sexual harassment into Article 354 and Section 309 of the Indian Penal Code, we have come a long way. The IPC now includes new offenses which have been outlawed and made punishable, acid attacks, voyeurism, stalking, sexual harassment, etc. And amended definitions of existing offenses like rape. The Protection of Women from Domestic Violence Act 2005 is another example of the state taking requisite steps to provide a framework which prioritizes protection of women. The provisions of this act have been interpreted liberally over the last decade by the courts to expand the scope of protection to numerous domestic relationships. Recently, a judgment of the Supreme Court has also tried to iron the creases between the overlap of this act, the Domestic Violence Prevention Protection of Women from Domestic Violence Act and its conflict with the Senior Protection to Senior Citizens Act. In Vishaka, noting the lacunae in domestic law in 1997, the Supreme Court relying on Articles 51A and 42 prescribed guidelines and norms based upon the seed of framework for the protection of women in workplaces and other institutions. This was in recognition of their fundamental rights under Articles 14 and 15 and their right to life under Article 21, which includes the right to live with dignity. And lastly, under Article 19, the right to practice any profession or carry on any occupation, trade or business, which includes a right to safe environment free from sexual harassment. And pursuant to this judgment, almost 16 years later, Parliament enacted the sexual harassment of women at workplaces, prevention prohibition and redressal Act 2013 to provide protection against sexual harassment of women at the workplace. This enactment, I think, would be a game changer just as the Domestic Violence Act has been. The term workplace under Section 2O of this act includes all private sector organizations, that is, any organized or unorganized sectors, which courts have routinely interpreted widely so as to widen the protective scope of the act, as is the case with the interpretation of the Domestic Violence Act. Empowerment of women or gendered minorities relies heavily on their material and economic independence as one of its preeminent prerequisite. The bulk of the barriers faced with women while pursuing this economic independence is inequality in wages and discrimination resulting from their biological role of childbearing and the lack of safety and lower social position. The offer of suffer in our deeply and historically patriarchal society. Parliament and other state legislatures have found it fit to enact beneficial legislations that address these concerns. Like the Metternative Benefit Act of 1961, the Equal Remuneration Act 1976 and the Sexual Harassment Act of Women Prevention, etc. at Workplace Act 2013. The Equal Remuneration Act was preceded by the 1975 ordinance, promulgated in the year known as the International Women's Year, to give effect to the mandate of Article 39 of the Constitution. While applying the provisions of these acts, courts have often relied upon provisions of Article 14 and 15, in addition to the directive principles as the source of power and reasoning. For instance, in Mackinon Mackenzie versus Audrey DeCosta, the Supreme Court held that paying a lesser wage to female stenographers, termed as confidential ladies stenographers, was violative of the act and resulted in gender discrimination. Equal wages and remuneration for the same work or similar work of a similar nature and prevention of discrimination of employment on the basis of gender is now a guaranteed right located squarely within the provisions of the Constitution. The Metternative Benefit Act II traces its source to Article 42, which mandated the state to legislate on this subject. Now, with a relatively progressive policy of leave on the occasion of pregnancy or miscarriage, this act guarantees that women receive wages and remuneration during the period that penalizes dismissal on the ground of pregnancy. Given that women face acute bias, both direct and indirect, based on their reproductive ability, which sharply affects their career trajectories and consideration for progression. These safeguards help mitigate some of these concerns. The Factories Act contains other protections such as creating and maintaining precious provisions for separate washrooms, restriction of working hours, etc. Implicit in these protections is that the state acts as parents' patriot, which is bona fide in the benefit of women. But I urge you to critically examine and question this as well. Undoubtedly in the past, given our temporal context in society, there was a need for the state to soup in and protect its citizens. Here women, in the absence of their ability to do so. However, this has often manifested as a restriction imposed on women rather than an improvement of the conditions that surround them. Consider, for instance, the restriction to working hours only between 6 a.m. to 7 p.m. window, prescribed under section 66 of the Factories Act. State governments may vary this but cannot include 10 p.m. to 5 a.m. or the time period between 6 a.m. and 7 p.m. as per the BDN Cigar Conditions of Employment Act, which predominantly applies to women. Note that this is not a labor exploitation concern or fixed number of working hours, but instead of a fixation of timings itself for the benefit of women. This is quite obviously premised upon protection for security and safety concerns, particularly to women. But it is achieved by restricting opportunities for women who, for example, may ideally prefer night shifts to balance their domestic rules without placing the owners on the threat of violence and instead controlling it. So in that sense, the state and the employer is actually absolved of the responsibility of providing security or additional facilities. Similarly, section 22 of the Factories Act prohibits women or young persons from working on or near machinery in motion or the prohibition of women working in mines under section 46 of the Mines Act. Both of these presuppose the physical capabilities of women and remove them from the ambit of employment altogether. Such provisions remain in the statute book and their relevance can strongly be debated, given that society still remains largely unsafe for women. But I urge you to consider that rather than a paternalistic approach that imposes restriction on women for their protection, we need to rethink our systems and work towards ensuring that the conditions they find themselves in are controlled and safe. So as to enable them instead to put it simply from a model of restriction, we need to progress to a model of liberation in the long run. This was recognized in the Anuj Gur case as well, where the court noted that the protection offered to women was in fact victimizing them. And instead of putting curbs on women's freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the state, as well as law modeling done in this behalf. The recognition of the possibility of men also being victims of gendered violence is still conspicuously absent in Indian law and requires nuance, that is perhaps best left for another occasion. The Poxo Act which criminalizes sexual acts against children is the closest we have to a gender-neutral understanding of such violence. I would therefore also be remiss if I fail to acknowledge that my speech till this point has treated gender as a binary, which certainly it is not. Unfortunately, however, with the history of development of gender in law, both by the legislature and the court was limited to this restrictive conception until more recently. The identification of target groups for affirmative action has developed in the last two decades tremendously. Historical inequities play a significant role in the identification of target groups, but their role must be viewed contextually as well as contemporaneously. In one judgment, Ram Singh, the Supreme Court held that an affirmative action policy based solely on historical injustice would result in under-protection of the most deserving class of citizens and suggested consideration of such policies for transgender community acts, for example. The court recognized that there exists new and constantly evolving group of citizens who may be legitimate focus of an affirmative action policy, and the state is obligated to identify that those groups instead of only concentrating on establishing and enabling groups of citizens to recover lost ground in claiming preference and benefits on the basis of historical prejudice. This builds on the NALSA judgment, which firstly first legally recognized transgender persons as the third gender and provided a framework for the protection, access to resources and enforcement of their fundamental rights. The framework contemplated in this judgment is therefore wider in some senses than the legislation that followed. The state of Karnataka recently took heed of this and as a result of court proceedings, challenging a notification calling only men and women to apply for special reserve constable force, force amended the Karnataka civil services general recruitment rules to provide one person horizontal reservation to transgender persons in government jobs. Locating the right to dignity and the right to privacy within the right to life in Puttaswamy and Navte-Johar has further entrenched the decisional autonomy of not just women, but also sexual minorities and vulnerable communities. The understanding that gender is in fact characterized by social conditioning and is distinct from biological sex, which is, which too is not binary, has been woefully slow, but not absent. Not only does it require sensitization and training, but also tremendous unlearning of our own conditioning and preconceptions. I will admit, I don't claim to have a complete understanding of the nuances and language of these identities, and it remains a continuing education, much like for most others. In this context, an interesting illustration and recognition of this comes from a recent judgment, the Madrasai Court, where the court passed an expansive set of guidelines, building on the spirit of the Supreme Court's decision in Navte-Johar and Nalsa. The judgment barred the practice of conversion therapy that claims to change the sexual orientation of queer people or gender identity of transgender people to cisgender, and issued directions for the protection of LGBTQIA community against discrimination in the absence of legislation. In arriving at these conclusions, the judge also expressly put on record his own preconception and the lack of understanding, which he remedied by seeking out psychologists and members of the community trying to educate himself. He quite correctly mentions that ignorance is no justification for normalizing any form of discrimination, and his judgment focuses on acknowledging the unlearning prejudices and stereotypes that we have to create space for acceptance of the LGBTQIA community. The court went on to explain that it is the legislature which has to make efforts towards mainstreaming the community by taking forward the steps already initiated by the courts in Nalsa and Navte-Johar. The last topic which I want to discuss is in relation to perpetuation of stereotypes and the power of language which has to put a stop to it. We must remember that even if women and men theoretically have the same opportunities, a lot of informal barriers apply to women. Due to historic prejudice and a general sense of disdain or indifference towards bettering the situation for a group of persons who are traditionally treated poorly. This includes women being paid lower wages held back on the presumption of inferiority and a lack of ability to commit to the workplace. A stereotypical view is women are preoccupied with their domestic and familial roles. Stereotypical and prejudicial understanding of women and their worth or capability has an insidious past which is not unique to India, though it may have its own special manifestations. As recently as in 1975, a judge in the UK was prepared to find a solicitor negligent for taking advice from a wife when the husband was available on the basis that a sensible wife would expect her husband to make a major decision. While awareness and reform in society will have to be through straight driven efforts and people driven movements, what the judiciary can contribute to is a conscious selection of language which remains a powerful tool in breaking through stereotypes and signaling a changed sense of what is acceptable and what is not. To achieve gender justice, it is critical that the judiciary avoid stereotypes and social biases to strengthen a judicial system that guarantees women access to fair and gender sensitive judgments. In Aparna Bhatt, through reference to the Bangkok general guidance for judges, the court was able to lay down guidelines, detailed guidelines to combat stereotypes used in judicial pronouncements and directed gender sensitive training to be undertaken for the bar, the bench and in legal education at the undergraduate level. The language that we use must neither trivialize the pain of the survivor to a crime nor condone the harm caused by the accused, thereby exposing the survivor to trauma again and again. And for this we must, as lawyers and judges, strip our vocabulary and language of the misogynistic conceptions prevailing in society. On an overall view of the aspects I've discussed today, on an overarching theme I want to draw your attention to is that the constitution has been employed in diverse facts scenarios to offer protection to women and gender or sexual minorities. The trilogy or triumvirate of articles 15, 14, 15 and 21 offers a powerful tool for anti-discrimination, even in the absence of legislative protection, which is what the courts have more often than not recognized. That is why often case law is what has paved the way or led to drafting some of these laws. The principles of substantive equality, anti-discrimination and autonomy are inherent in the constitution and can and must be used to counter action that challenges these rights. I'm confident that in the absence of, for instance, equal remuneration act, the court would still have been able to protect women against differential pay based on gender, because we have an anti-discrimination culture which is ingrained in our laws. Fortunately, unlike the US, where there is a vociferous debate and constant conflict between textualist and constitutionalist approaches, Indian constitutional interpretation has consistently enabled us very robustly to treat the constitution as a living document, unfrozen in time. Therefore, even though the constitution framers may have only contemplated gender as a binary, the Supreme Court and other courts have not been limited by this conception while recognizing the fundamental rights of queer persons and transgender persons within the provision of the constitution. Undoubtedly, the courts have not always been right. For instance, parts of the Nargesh Mirza judgment or Kaushal, which was overruled in Chohar, etc. There are some examples. History may not judge these decisions of the court well. In fact, it will probably judge them poorly, while others that have spoken off may be celebrated. But overall, the evolving developments reflect loosely, if not accurately, the evolving perspectives on gender in society in which the courts have been intrinsically involved. I would conclude with this quote from Ruth Bader Ginsburg. And this is of course in the context of gender. As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things and we'll all be better off for it. Thank you. Thank you, sir, for your insightful insights being given by you. In a short span, I would say that you have covered the entire bird eye view and as you said, there are too many celebrated judgments and there are too many perspectives, how it has evolved under article 15, article 21, article 19. You all speak off as to how the air hostess case within the cutoff, the superannuation age sector was challenged. There have been involvement and how the phase 2 and all have evolved. These all have given us why it is called as a living constitution.