From Empowerment to Protectionism: Positioning Judiciary in the Intersections of Gender and Religion

Abstract

The gender justice jurisprudence in India is posited at two extremities—protectionism and empowerment. The Supreme Court (SC) has delivered many landmark decisions celebrating the empowerment perspective. But when the issue lies at the intersection of gender and religion, the tone of the SC becomes protectionist in nature. The protectionist approach works at three levels. First, the court treats all women equally, whitewashing their inherent non-homogeneity and imposing equality in deeply unequal circumstances. Second, the degree of protectionism differs based on which religion is under scrutiny. Third, women’s rights are seen as against male privilege, excluding the possibility that women may not want to be equal to men. ‘Being equal to man’ recognises that ‘being man’ is the highest achievable status. The perspective piece argues that there is no need to create an all-men world by making women equal to men. Rather, the self-worth of a woman needs to be recognised free of a ‘male yardstick’, which might usher in true empowerment.