@JUDGMENTTAG-ORDER
1. The two revision petitioners are women who claim that they have been discriminated against because they are women.
2. They responded to an invitation to all female descendants of the founders'' families of a Trust and they found that the post for which they had applied were filled up by the Scheme Court by appointing men. The background of the case is this:
Anbanathapuram Vahaira Charities (AVC) was founded by five families hailing from the following villages. Anbanathapuram, Enathimangatam, Pallavarayapet, Karkudy and Kanganamputhur. The trust was found with the object of performing certain charities. A Scheme decree was passed by the learned Subordinate Judge, Mayiladuthurai in O.S.No.68 of 1948. It was intended that the Subordinate Judge, Mayiladuthurai shall be the Scheme Judge as far as the AVC was concerned. Subsequently, the Scheme was amended by the Scheme decree dated 6.4.1960 in O.S.No.17 of 1960. As per the provision in the Scheme, a college was established under the name of AVC college. The entire properties of the chanties is administered by the Board of Trustees. An Education Committee is appointed to function alongside the Board of Trustees. The Board of Trustees consists of Chairman and five trustees and the Educational Committee consists of ten members. Two vacancies arose in the Education Committee. Therefore, applications were called for from the female descendants of the founders'' five families. Several persons applied for the posts. Out of 27, 20 applicants alone came for the interview. Of these 20, 15 applicants were women and 5 applicants were men. The learned Subordinate Judge, Mayiladuthurai appointed two men on the ground that though the women applicants had all the qualifications, as far as administration of AVC was concerned, it would be better if persons with experience are appointed. According to him, none of the women had experience. Therefore, holding that "female descendants" include men, he rejected the case of the 15 women applicants and appointed two men. Those two men are the respondents 1 and 2 herein. Aggrieved by this, two of the female applicants have filed these two revisions.
3. Mr.N.L. Rajah, learned counsel for the petitioners in both the revisions submitted that this appointment is in flagrant violation of the Constitutional guarantees of equality and safeguards for women against discrimination on the ground of sex. He referred to the rules of the Management of the AVC Educational Committee. He also referred to the notice calling for applications and submitted that normal understanding of the words "female descendants" would only be, descendants who are female and cannot be construed as descendants through a female. He also submitted that the reasons given for appointing the respondents 1 and 2 were totally unjustified. He referred to certain relevant provisions of the "Convention of Political Rights of Women" specifically Article 1, Article 2 and Article 3 to which India had been a signatory and had ratified. He also referred to the "Convention on the Elimination of all forms of Discrimination Against Women", (CEDAW), which had expressed its concerns that despite various instruments guaranteeing gender equality, discrimination against women continues to exist. The States, Parties to the Convention agreed on several Articles which condemn discrimination against women and agreed to eliminate it.
4. He referred to the following decisions for the purpose of urging that the provisions of CEDAW should be made applicable wherever possible in our country:
(i)
5. He then referred to Mackenzie and others v. The Duke of Devonshire and others, 1896 AC 400 and Beall v. Harwood, 2 Harris & Johnson 167 for the purpose of construing the words "female descendants" and
6. Mr.R. Muthukumarasamy, learned Additional Advocate General and Mr.T.R. Rajagopalan, learned Senior Counsel appeared for the contesting respondents. According to the respondents, there was absolutely nothing wrong with the impugned order. The Scheme Court had called for applications from female descendants and the order of the lower Court makes it clear that what was meant by "female descendants" is which means, descendants through a female.
According to the learned senior counsel, originally, the appointments were made only from the male descendants on the male line and now it was decided that descendants from female should also be included and that is why applications were called for from female descendants. The words "female descendants" did not and was never intended to mean descendants who are female alone. According to the learned senior counsel, the discrimination alleged did not arise since the Trustees of the Scheme Court decide who should be called and when applicants who are descendants through females had applied for, the Scheme Judge did not reject the female applicants on the ground of sex, but because, he felt that the work of the Education Committee would be better served if persons with experience are appointed. The Additional Advocate General further stated that if the words "female descendants" are construed to mean descendants who are female alone, then, male descendants through a female will be totally excluded which would result in injustice. He pointed to the following provisions of the Scheme: The qualification to be a member of the Board of Trustees was that the person should be a male descendant not related through a female. Therefore, male descendants who are related through a male would be entitled to be member of the Board of Trustees. If the words "female descendants" are construed as descendants who are females, then, female descendants related either through a male or a female will be entitled to be elected to the Education Committee. According to the learned Additional Advocate General, that would leave out only the male descendants descended through a female. According to him, that could never have been the intention and therefore, the Scheme Court''s construction which would mean descendants through a female alone will be the correct construction.
6.(a) Mr. Nissar Ahmed appearing for respondents 3 and 4 supported the Scheme Court''s order and produced a resolution of the Committee which is subsequent to the C.R.P that "female descendants" meant descendants of a female.
7. Some of the clauses of the Scheme decree relating to AVC would be relevant. Clause 5 and 5(c) relate to Board of Trustees:
" 5. Board of Trustees : The entire properties of the charities shall vest in a Board of Trustees, consisting of a Chairman and five trustees to be appointed by the Court, as far as possible, from members of the original five families that gave the original endowment, if they are not otherwise disqualified.
5(c). The appointment of a Trustee in any vacancy caused on the Board of Trustees by efflux of time, by resignation or removal or death or disqualification, shall be made by the Court, from among male members of the five families as far as possible."
8. Clause 6 relates to qualification of a member of the Board of Trustees:
" As far as possible, no person shall be chosen to the Board of Trustees (a) unless he is a male descendant of one of the families, but not related through a female and (b) unless he has completed 21 years of age provided he is not disqualified under the rules."
9. Now, if we look at the Rules of Management of the AVC Education Committee, it provides for the manner in which the Scheme Court shall nominate its members out of the ten members:
"Six Members to be nominated by the Scheme Court, Mayiladuthurai from the five families of Anbanathapuram Vahaira Charities. Three Members will be from the Board of Trustees of A.V.C. irrespective of their educational qualifications. The other three will be from the family members who must be graduates or have had collegiate education. Nomination of the above six persons shall be so made that each of the five families should necessarily have representation and any one of the family will have two members. The Chairman and Secretary shall be from the family members as per clause 7.
Two graduates will be nominated by the Scheme Court from the female descendants of the founder''s family of A.V. Charities. The Principal, A.V.C. College will be ex-officio Member."
10. Now, if we look at Clause 7 referred here, it reads thus:
" The Chairman and Secretary shall be elected from among the male descendants of five families by the Educational Committee Members nominated by the Scheme Judge (Subordinate Judge) and they shall hold office for three years and they shall be eligible for re-election during or the remaining period of their tenure of office."
11. Now, let us also look at the meaning of descendants given in the Law Lexicon. "Descendants" mean "children and their children and their children to any degree".
12. In the 14th edition of THEOBALD ON WILLS edited by J.B. Clark, the words "male issue" and "male descendants" are construed:
" Male issue, issue male. The expressions "male issue" and "issue male" are legal terms of art and prima facie denote only the sons and remoter male issue in the exclusively male line.
The expression "male descendants" is not a legal term of art and means descendants, whether in the male or female line, who are male. But "male lineal descendants" prima facie means descendants exclusively in the male line."
13. The learned Judge who framed the Scheme decree in O.S.No.68 of 1948 appears to have been aware that a male descendant would include a descendant who is a male whether in the male or female line. That is why, Clause 6(a) above clarifies that no person will be qualified to be a member of the Board of Trustees unless he is a male descendant but not related through a female. Therefore, the words "male descendant" here are referable to a descendant who is a male and also in the male line. The fact that he should be in the male line is clarified, but what is obvious is that a male descendant means a descendant who is a male. Therefore, the logical conclusion is that a female descendant is a descendant who is a female. Now, let us look at the rules of the Management of Anbanathapuram Vahaira Charities Education Committee. Those members are to be nominated by the Scheme Court, Mayiladuthurai from the five families of AVC of whom three members will be from the Board of Trustees. We have already seen that the Board of Trustees shall only be the male descendants in the male line of the 5 families and therefore, these 3 members will be from the 5 trustees of the Board. The other 3 will be from the family members who must be graduates or have had collegiate education. Since what is meant by family members is not the matter in dispute before me, I do not propose to discuss it. In any event, the nomination of these 6 persons is made from out of the 5 founding families so that each family has a representative and any one family will naturally have 2 members. The Chairman and Secretary shall be from the family members as per Clause 7. This perhaps throws light on what is meant by "family members" because, Clause 7 states that the Chairman and Secretary shall be elected from the male descendants of the 5 families. The words "male descendant" are not qualified by any rider as has been done in the AVC Scheme. Therefore, if "male descendants" is construed to mean all descendants who are men whether from the male or the female line, the apprehension of exclusion expressed by the learned Advocate General Mr. Muthukumarasamy falls to the ground. It may be argued therefore that the words "family members" when read in conjunction with Clause 7 would only mean male members. But as I said earlier, I do not wish to express my opinion in this regard. In any event, it is only after the rules were framed for these 6 members that the rule for nomination of female descendants is introduced. While the 3 members of the Board who are nominated by the Scheme Court to the Education Committee need not have educational qualification, the other 3 family members must have college education, but need not be graduates. On the other hand, when it comes to female descendants, it is made clear that they should be graduates.
14. Now, the notice which was issued by the Scheme Court calling for applications reads as follows:
" Applications are called for from the female descendants of the founders of Five Families known as Anbanathapuram, Enathimangalam, Pallavbarayapet, Karkudy and Kanganamputhur of A. V. Charities who are Graduates for appointment in the vacancies of Two Members of A. V. Charities Education Committee in the A.V.C. College, Mannampandal, as per the Amended Rule 2 of the A.V.C. Education Committee."
15. The scheme Judge also is conscious of the increasing demand for equal representation in administration of educational institution or in political bodies by women. This is what he states in his order:
But, thereafter, he goes on to say:
16. The A.V.C. had all along been administered by the Board of Trustees which had been filled up by only the male members. The Educational Committee also all along had only male members. In fact, their educational qualification was considered of no consequence since presumably from a maleslant, but not demonstrably all men are competent even though not educationally qualified to be incharge of administration and management of institution and can do so by their practical experience. But, when it came to female descendants, it was ensured that they were graduates. This qualification, I think, speaks for itself. The management did not want female descendants who had no outside experience. Perhaps they thought non-graduate females would lack administrative capacity. The very fact that out of the 20 interviewees, 15 were women demonstrates that an ordinary person on the street would understand "female descendants" only to be women. Of course, if the notice had been issued in Tamil and it had stated the the matter would have been entirely different. But, it called for applications from female descendants and it can only mean as per common usage, descendants who are females.
17. In the decision reported in 1896 AC 400 , the House of Lords while considering the word "heirs female", held that it meant the two daughters of the son of the trustee took as a class. This was referred to only for the following passage in the judgment:
" It would to my mind be disastrous to introduce such a system of construing a deed. One has known the language of a will somewhat perverted to perform the function which it was assumed the testator intended to be performed, but I never in my life heard of the language of a deed which contained a perfectly unambiguous provision being twisted from the natural ordinary meaning of the words by a preliminary statement of what the maker of the deed intended should be the effect and purpose of the whole deed when made."
18. Then again in 2 Harris & Johnson page 167 , while again construing the words "female heirs", the learned Judges laid down the guidelines for deciding what is the intention of the Legislature in a particular Statute, whether clear words have been used to express the intention and what is the effect of the enacting clause and does it carry their intention into effect.
19. In
" Interpretation of Statutes - Use of terms of expressions of well known legal significance or connotation by legislation - Court must interpret them as used or understood in popular sense."
20. In
" Where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means "that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it."
21. In
In the legal world the word "dwelling house" is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self-acquired, as understood in the law applicable to Hindus. In the context of Section 23 therefore when the legislature has chosenly employed the word "dwelling house", it has done so with a purpose, which is to say that on the death of the inte state, a limited status quo should prevail as existing prior to his or her death. His or her abode, shared by him or her, with members of his or her family, identifiable from Class I Heirs of the Schedule, should continue to be in enjoyment thereof, not partible at the instance of the female heirs till the male heirs choose to effect partition thereof."
22. From all this, I arrive at the conclusion that "female descendant" if it is understood in the normal way, it could only mean descendants who are females. I am more convinced that only this could have been the intention because, there was no necessity for this clause if the words "female descendants" were not intended to mean only women. Because, already there were 3 members who were to be nominated from the family members who are college educated. Therefore, to introduce by way of amendment, that two graduates should be nominated from the female descendants of the founders'' families could only mean that women were intended to be inducted in the Education Committee.
23. Now, the International Convention to which reference was made clearly condemns denial of equality to women. Articles 1, 2 and 3 of the Convention on the Political rights of women read thus:
Article 1
Women shall be entitled to vote in all elections on equal terms with men, without any discrimination.
Article 2
Women shall be eligible for election to all publicly elected bodies, established by national taw, on equal terms with men, without any discrimination.
Article 3
Women shall be entitled to hold public office and to exercise all public -functions, established by national law, on equal terms with men, without any discrimination.
24. As far as CEDAW is concerned, the following are the relevant provisions:
Article 1. For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 2. States, Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
Article 7. States, Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;
(c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.
Article 10. States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:
Article 11(2). Government, non-governmental organisations and individuals are urged therefore to do alt in their power to promote the implementation of the principles contained in their Declaration.
25. Now, the Supreme Court has repeatedly held that the right to gender equality guaranteed by our Constitution must be furthered by referring to international Conventions and norms like the CEDAW. Therefore, with reference to sexual harassment, the Supreme Court held that common minimum requirement of this right has received universal acceptance and therefore, international Conventions and norms are of significance in guiding us.
There is specific reference to CEDAW in this regard in the decision reported in the famous
26. Then again in
The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 ("CEDAW") and the Beijing Declaration which directs all State Parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear.''
These international instruments case an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law."
and furthermore, it was stated as follows:
In cases involving violation of human rights, the courts must forever remain alive to the international instruments and conventions and apply the same to a given case when there is no inconsistency between the international norms and the domestic law occupying the field. In the instant case, the High Court appears to have totally ignored the intent and content of the international conventions and norms while dealing with the case."
27. In
Though the provisions of Hindu Succession Act, Indian Succession Act and Muslim Shariat Act treat female heirs on a par with the male heirs, but none of these Acts is applicable to the custom-governed tribals. The view of applying the general principles of these Acts to them cannot be accepted. If this be the route of return on the court''s entering the thicket, it is far better that the court kept out of it.
It is not fair to imagine that there would follow a beeline for similar claims'' in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu Succession Act and the Indian Succession Act as models."
Then again, this is what they say:
The words "male descendants" wherever occurring in Section 7 of the Chotanagar Act cannot be deemed to include "female descendants" as well by applying Section 13(2) of the General Clauses Act. Though general rule of legislative practice is that unless there is anything repugnant in the subject or context, words importing the masculine gender used in statutes are to be taken to include the females but in matters of succession the general rule of plurality would have to be applied with circumspection. Neither the Hindu Succession Act nor the Indian Succession Act nor even the Shariat law is applicable to the custom-governed tribals. And custom, as is well recognized, varies from people to people and region to region."
28. From this, the only conclusion I am able to arrive is that "female descendants" could only mean females who are descendants. In the same judgment, the dissenting voice in favour of women was raised by Justice K. Ramaswamy who held thus:
By operation of Section 13(1) of General Clauses Act, males include females, of course, subject to statutory scheme which by now is subject to the Constitution. In Sections 7 and 8 of the Act if the words "male descendants" are read to include female descendants, the daughter, married or unmarried and the widow are entitled to succeed to the estate of the father, husband or son. Scheduled Tribes are as much citizens as others and are entitled to equality. Sections 7 and 8 are accordingly read down and so on that premise are valid.
29. Therefore, according to the learned Judge, "female descendants" would mean daughter, married or unmarried or widow. The majority judgment delivered by Justice Kuldip Singh and Justice M.M. Punchhi, also construes the words "female descendants" only to mean females.
It is on the exhaustion of, or abandonment of land by such female descendants can the males in the line of descent take over the holding exclusively. In other words, the exclusive right of male succession conceived of in Sections 7 and 8 has to remain in suspended animation so long as the right of livelihood of the female descendants of the last male holder remains valid and in vogue. It is in this way only that the constitutional right to livelihood of a female can interject in the provisions, to be read as a burden to the statutory right of male succession, entitling her to the status of an intervening limited dependants/descendants under Sections 7 and 8. In this manner alone, and up to this extent can female dependants/descendants be given some succour so that they do not become vagrant and destitutes. To this extent, it must be so held."
30. I am again referring to this paragraph only to show that normally, the common understanding of the words "female descendants" can be only descendants who are females. In this judgment, there is an extensive reference to CEDAW and it is noted with poignancy that women have always been discriminated against and have suffered and are suffering discrimination in silence. With regard to right in public employment, it was held thus in that same judgment:
" Discrimination on the ground of sex in matters of public employment was buried fathoms deep and is now a relic of the pasi by decisions of this Court. In
Though buried fathoms deep, unfortunately, it rears its head often, like the phoenix which rises though burnt.
31. In
"If a fragment of these assertions were true, unconstitutionality is writ large in the administrative psyche and masculine hubris which is the anathema for Part III haunts the echelons in the concerned Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.
At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal stands on no worse footing. This misogynpus posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman''s thraldom. Freedom is indivisible, so is Justice.
That our founding faith enshrined in Article 14 and 16 should have been tragically ignored vis-a-vis half of India''s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office, even diplomatic assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable.
We do not mean to universalise or dogmatise that men and women are equal in all occupation and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern."
To assume that only the men will have the experience and not even one of the women who are otherwise qualified to be nominated to the Educational Committee strikes at gender equality that is enshrined in our Constitution.
32. And again in the decision reported in
"The observations made by the U.S. Supreme Court regarding the teachers, fully apply to the case of the pregnant AHs. In Sharron A.Frontiero v. Elliot L. Richardson, (1973) 36 LEd 2d 583, the following observations were made:
"Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility."
Similarly, very pregnant observations were made by the U.S. Supreme Court in City of Los Angeles, Department of Water & Power v. Marie Manhart, (1978) 55 LEd 2d 657, thus: -
"It is now well recognized that employment decisions cannot be predicated on mere "stereotyped1 impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman''s inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less....
The question, therefore, is whether the existence or non-existence of "discrimination" is to be determined by comparison of class characteristics or individual characteristics. A "stereotyped'' answer to that question may not be the same as the answer that the language and purpose of the statute command.
Even if the statutory language were less clear, the basic policy of the statute requires that, we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals."
When the women were equally qualified as the men and without any strain of etymological construction, they were clearly female descendants and when the impugned order also shows that empowerment of women in the order of the day, it would have been laudable may natural if any 2 out of the 20 women applicants had been appointed. Instead, we are faced with the impugned order which appears to deny women their right to a "place under the sun".
33. In
"The human rights for women, including girl child are, therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth - cultural, social and economical. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights."
34. In
" For its meaningfulness and purpose every woman is entitled to elimination of obstacles and discrimination based on gender for human development. Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on a footing of equality. Equally in order to effectuate fundamental duty to develop scientific temper, humanism and the spirit of enquiry and to strive towards excellence in all spheres of individual and collective activities as enjoined in Articles 51-A(h) and (j) of the Constitution of India, facilities and opportunities not only are to be provided for, but also all forms of gender-based discrimination should be eliminated. It is a mandate to the State to do these acts. Property is one of the important endowments or natural assets to accord opportunity, source to develop personality, to be independent, right to equal states and dignity of person. Therefore, the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights."
And again,
"The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability, and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. By virtue of the Protection of Human Rights Act the principles embodied in CEDAW and the concomitant right to development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Article 5(a) of CEDAW to which the Government of India expressed reservation, does not stand in its way and in fact Article 2(f) denudes its effect and enjoins to implement Articles 2(f) read with its obligation undertaken under Articles 3,14 and 15 of the Convention vis-a-vis Articles 1,3,6 and 8 of the Convention of Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgency and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender-based discriminations as mandated by Articles 14 and 15 of the Constitution of India, By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women. Article 15(3) of the Constitution of India positively protects such Acts- or actions. Covenants of the United Nation add impetus and urgency to eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins the Supreme Court to breathe life into the dry bones of the Constitution, international conventions and the Protection of Human Rights Act and the Hindu Succession Act to prevent gender-based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women."
So, the Supreme Court has repeatedly held that what was enshrined in our Constitution as a fundamental right to equality and against discrimination on the ground of sex will have to viewed in the light of the convenants adopted by our country in CEDAW. The Supreme Court has even stressed that where our own rules or laws are silent, the , principles in CEDAW can be adopted if it is not inconsistent with our existing laws.
35. When myths or stereotypes about women manifest themselves, it is possible to arrive at an impartial decision only if one understands the reality of a woman''s situation. The following is quoted from one of the articles in the Human Rights Year Book 2000, by Ms. Naina Kapur.
What makes it possible for us to genuinely judge, to move beyond our private idiosyncrasies and preferences, is our capacity to achieve an "enlargement of mind." We do this by taking different perspectives into account. This is the path out of the blindness of our subjective conditions. The more view we are able to take into account, the less likely we are to be locked into one perspective... It is the capacity for "enlargement of mind" that makes autonomous, impartial judgment possible... The process of enlargement is not only consistent with impartiality, it may also be seen as an essential pre-condition." (R. v. S.(R.D.), 1997 (3) S.C.R.484
36. The role of the Judges in protecting the interests of the common man was underscored in Madhu Kishwar''s case:
"Law is a living organism and its utility depends on its vitality and ability to serve as a sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic Stale. Judiciary cannot protect the interests of the common man unless it redefines the protections of the Constitution and the common law."
37. Though provisions were included and rules were amended to enable women to participate in the Education Committee, it was defeated by an unfortunate misconstruction of the words "female descendant". The assumption that the learned Judge makes that all the women applicants, though qualified, do not have the practical experience appears to me to suffer from gender bias. Especially if you look at the qualifications of the petitioners herein, they are impeccable. There is no reason why they cannot administer the Education Committee as well as the other family members who are on the Board irrespective of their educational qualifications.
38. Gender justice cannot be done unless women are empowered in the political, economic and social spheres. The experience of two Doctors is narrated in the book "Unveiling India" by Anees Jung:
"The real cause of the disease lay in attitudes and interpersonal relationships that needed to be changed. Our aim was to de-mystify medicine, bring it within the reach of every man and woman. We had to involve them in community participation. We wanted to start with the women, the most deprived of the community, who make up fifty per cent of the population. We found that they were intelligent, alert, responsive and eager to learn. We identified some of these women and trained them as village health workers. The quality these women had was not the mechanical ability to store information but the ability to recognise needs, relate to them and communicate what they had learnt. These women, related, directly to the "local people, had a whole life''s experience in bearing and bringing up children. Beginning in the benign area of health, the women slowly gained confidence and moved on to other social areas. They began asking for change from the bus conductor, demanded the presence of a school teacher and expected proper services from local village officials. It began to gradually transfer itself to the political field."
39. These women referred to are rural women of Jamkhed, a village. If such women without any education, with just training to be village health workers, could gain confidence and could change the village by demanding for a school teacher, for proper service from local village officials and to transfer this demand to the political field, cannot these two petitioners fulfil the expectations from them as members of the Education Committee?. It begs the question. Walt Whitman in his poem "Women of Tomorrow", writes:
"Where women walk in public processions in the streets the same as the men. Where they enter the public assembly and take places the same as the men, There the great city stands."
Our endeavour must be to search that goal. The right to equality of sexes is an Article of Faith and must be kept.
40. The decision of the learned Scheme Judge that women lack experience and therefore cannot be appointed to the Educational Committee smacks of plain discrimination on the ground of sex. In this case, Bhuvaneswari, the revision petitioner in C.R.P.No.983 of 2000 is a Law graduate. She has been practising as an Advocate. She is a Rotaract member and a Secretary in the Fine Arts society in college days. She has been a member of the Runner-up college cricket team. She has received a certificate that she had discharged her duties excellently in the college council executive committee as a fine arts secretary. She has been awarded proficiency in classical dance in the competition held by Annamalai University. She has been an international Service Director and Joint Secretary of the Rotaract Club of Chidambaram. She has been enrolled as a member of the Bar Council of Tamil Nadu. She has also taken the TOEFL exam certificate. She has been given a certificate of training under Entrepreneurship Development Programme for Women conducted by the General Manager, District Industries Centre, Nagapattinam.
41. As regards Lalitha Sundari, the revision petitioner in C.R.P.No.918 of 2000, she is a graduate in History. She has obtained certificate in Pranic Healing. She is the grand daughter of one of the men contributors of AVC coming from the Enathimangalam branch who served as a trustee and then Chairman of AVC. She is a graduate in B.A. History. She has been participating in Fine Arts activities in her college as well as in sports.
42. The Scheme Judge also records that all the women are qualified to be appointed. When it is apparent from the discussion above that on a plain reading of the clause, only descendants who are females have to be appointed, the appointment of respondents 1 and 2 must necessarily be set aside.
43. Now, we come to the question as to how, when the Scheme Judge found all the 20 female applicants qualified, the two revision petitioners can claim to be appointed in the vacancies that had arisen. For this purpose, I rely on the decision reported in Dobson Dominique v. The State of Tamil Nadu, 2000 (3) L.W. 121 where this Court held with regard to the eligibility for selection under the said category of eminent sportsmen that though there were other eligible candidates, only the petitioner had approached the Court for selection. The learned Judge held thus:
" The other candidates who are above the petitioner at the national level have not chosen to come and challenge their non-selection. It is quite probable that the other candidates would have been selected in other professional courses or are not interested in the selection at all. In such an event, to direct the Selection Committee to conduct a fresh selection will be unnecessary. The Supreme Court, in
It is possible that the other applicants are not realty interested in the Educational Committee or at any rate, they have not deemed it fit to attack the appointment claiming that they have been discriminated against on the ground of sex. In these circumstances, I do not think that appointing the revision petitioners in the vacancies that had arisen will be improper. On the contrary, it will be in accordance with the principles laid down in the decision referred to above. The C.R.Ps are therefore allowed. The two petitioners shall be appointed in the vacancies that had arisen for which application were called for from female descendants and the appointment of respondents 1 and 2 is quashed. No costs. CMP Nos.5100 and 4824 of 2000 are closed.
