Supreme Court of India Bats for Women's Work

The Supreme Court of India has passed on 22.7.10 what can only be termed as a fascinating landmark judgment in favour of women. I am attaching this judgment for the benefit of members. The case relates to the amount of payment in compensation to be made to the legal relatives of a housewife killed in a motor vehicle accident. However, in passing the judgment one of the Honourable Judges A.K. Ganguly has made some strong obiter dicta on the adverse gender bias against women in the Census of India definition of work that are absolutely top class as follows – Despite the clear constitutional mandate to eschew discrimination on grounds of sex in Article 15(1) of the Constitution, in its implementation there is a distinct gender bias against women and various social welfare legislations and also in judicial pronouncements. Clause 6 of the said Schedule ( under section 163 A of the Motor vehicles Act, 1988 ) provides for notional income of those who had no income prior to accident. Clause 6 has been divided into two classes of persons, (a) non-earning persons, and (b) spouse. Insofar as the spouse is concerned, the income of the injured in fatal and non-fatal accident has been categorized as 1/3rd of the income of the earning and surviving spouse. It is, therefore, assumed if the spouse who does not earn, which is normally the woman in the house and the homemaker, such a person cannot have an income more than 1/3rd of the income of the person who is earning. This categorization has been made without properly appreciating the value of the services rendered by the homemaker. To value the income of the home-maker as onethird of the income of the earning spouse is not based on any apparently rational basis. 4.This bias is shockingly prevalent in the work of Census. In the Census of 2001 it appears that those who are doing household duties like cooking, cleaning of utensils, looking after children, fetching water, collecting firewood have been categorized as non-workers and equated with beggars, prostitutes and prisoners who, according to Census, are not engaged in economically productive work. As a result of such categorization about 36 crores (367 million) women in India have been classified in the Census of India, 2001 as non-workers and placed in the category of beggars, prostitutes and prisoners. This entire exercise of Census operation is done under an Act of Parliament. 5.Under Section 4 of the Census Act, 1948, the Central Government may appoint a Census Commissioner to supervise the taking of census throughout the area where census is intended to be taken. 6.The Central Government has made Census Rules, 1990 under Section 18 of the Census Act, 1948. Under Rule 5(c), (d) and (e) of the Rules, the functions of the Commissioner are listed, which include devising the census schedules or questionnaires, compiling and providing guidance in taking and computing results and publishing the statistics. 7. The Census Commissioner released data on classification of population by workers and nonworkers based on provisional results of the Census of India 2001 on 30th January, 2002. Thus, the categorization, compilation and computation of the data was done under the supervision and guidance of the Census Commissioner. This is totally a statutory exercise by public authorities. Therefore, this approach of equating women, who are homemakers, with beggars, prostitutes and prisoners as economically nonproductive workers by statutory authorities betrays a totally insensitive and callous approach towards the dignity of labour so far as women are concerned and is also clearly indicative of a strong gender bias against women. 8.It is thus clear that in independent India also the process of categorizing is dominated by concepts which were prevalent in colonial India and no attempt has been made to restructure those categories with a gender sensitivity which is the hallmark in our Constitution. 9.Work is very vital to the system of gender reconstruction in societies and in this context masculine and feminine work is clearly demarcated. The question which obviously arises is whether Census definition of work reflects the underlying process of gender discrimination. 10.Women are generally engaged in home making, bringing up children and also in production of goods and services which are not sold in the market but are consumed at the household level. Thus, the work of women mostly goes unrecognized and they are never valued. 11.Therefore, in the categorization by the Census what is ignored is the well known fact that women make significant contribution at various levels including agricultural production by sowing, harvesting, transplanting and also tending cattles and by cooking and delivering the food to those persons who are on the field during the agriculture season. 12.Though, Census operation does not call for consideration in this case but reference to the same has been made to show the strong bias shown against women and their work. We hope and trust that in the on-going Census operation this will be corrected. There is of course also the point that why should prostitutes be considered as non workers when they are forced to sex work due to the patriarchal social structure of society. This has eluded the honourable judge but this is pardonable given that despite being a man he has penned such a fantastic judgment. Anyway, this can be taken up with the Census Commissioner by the National Commission for Women which can also push for legalisation of sex work in India. All in all I must say that I am thrilled that the Supreme Court has given such a judgment against adverse gender bias with regard to the valuation of women’s work which has always been a sore point for me.

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