Gender Justice and Proportionality in India: Comparative Perspectives

Description

For a judiciary in a democracy, dispensing justice is not only about doing justice, but also about showing that justice is being done; it is about giving reasons and creating a "culture of justification". The question becomes how to nurture such a culture. A number of liberal democratic jurisdictions have answered this question in part with the adoption of the multi-step method of evaluating the constitutionality of legislative infringements on fundamental rights widely known as Proportionality Analysis. Under Proportionality Analysis courts must engage in a structured process of reasoning. This book deals with Gender Justice and Proportionality Analysis in India. The author argues that the Supreme Court of India should consider adopting Proportionality Analysis for the adjudication of the fundamental right to sex equality in Indian courts. The book includes an analysis of Canadian and South African Proportionality Analysis and makes some suggestions on how an Indian Proportionality Analysis could be generated using this comparative investigation. Additionally, the book proposes ways of applying the effects of socio-political context on doctrine, as well as doctrine’s interpretive impact on adjudicated outcomes for gender, thus making a contribution to feminist jurisprudence. Finally, the author analyses Indian gender equality jurisprudence, demonstrating the inadequacies of the current doctrinal framework for achieving the goal of substantive gender equality and suggesting ways in which an Indian Proportionality Analysis might be fashioned to address these inadequacies. A novel examination of the gender situation in India in comparative perspective, this book will be of interest to academics in the field of Gender Studies, Asian and Comparative Law and South Asian studies. Cover Half Title Title Page Copyright Page Dedication Table of Contents List of tables Acknowledgements Abbreviations 1. Introduction to Proportionality and Gender Equality I India, Proportionality and the Right to Equality II Judicial Review, “Juristocracy” and Proportionality in Perspective III Conceptualizing Gender Equality IV On Methodology V On the Relevance and Limitations of Legal Doctrine VI Reviewing the Scholarship—Gender Justice in Context VII Chapters Two through Seven: An Incremental Analysis of PA’s Impact on Gender Justice Notes Bibliography 2. Constitutional Courts in Context: India, Canada and South Africa I Women and Equality in Contemporary India, Canada and South Africa II Factors that Influence Apex Constitutional Courts III Historical Development IV Judicial Independence and Accountability V Public Perception and Support VI Conclusions on the Indian, Canadian and South African Constitutional Courts in Context Notes Bibliography 3. Gender Equality Adjudication in Independent India: Judicial Discourse from Deference to Discord I Introduction II Conceptions of Equality and the Constituent Assembly III Formal Equality: The Origins and Evolution of Classification Doctrine IV Gender Justice and Judicial Innovation: The Cases of the 1970s and Beyond V An Analysis of the Variable Standards in Recent Indian Equality Jurisprudence Notes Bibliography 4. Proportionality Analysis: Theoretical Foundations I The Origins of Proportionality Analysis II Theoretical Elements of Proportionality Analysis III Theoretical Critiques of Proportionality Analysis IV A Summary in Support of the PA Approach to Judicial Review in India Notes Bibliography 5. Doctrinal Iterations of Proportionality Analysis in Canadian Gender Equality Jurisprudence I Equality under the Charter: Sex Equality Notwithstanding the “Notwithstanding” Clause? II The Charter’s Section 1 Rights Limitation and Proportionality Analysis III Canada’s Equality Jurisprudence under the Charter: Justification’s Attenuated Role IV Gender in Canadian Equality Jurisprudence V Justification’s Attenuated Role in Canadian Gender Equality Jurisprudence – Implications for an Indian PA Notes Bibliography 6. Doctrinal Iterations of Proportionality Analysis in South African Gender Equality Jurisprudence I Introduction to the South African Iteration of Proportionality Analysis in the Gender Equality Context II Adjudicating the Right to Gender Equality in South Africa – Constitutional Provisions III Synthesis: What the Canadian and South African Experiences Institutionally and Doctrinally Suggest about the Use of Proportionality Analysis in Gender Equality Jurisprudence – Implications for India Notes Bibliography Cases: Canada Cases: South Africa (Constitutional Court) Constitutional and Statutory References: South Africa 7. Reprise and Implications: Defining the Attributes of an Indian Proportionality Analysis for Gender Equality and Beyond I A Review of Perspectives on Proportionality from Theory and Practice II Proportionality in India – Legal Foundations and Existing Applications III Exploring the Possibilities of an Indian Doctrine of Proportionality Analysis IV What Impact Could PA Have on Indian Gender Equality Jurisprudence? V Should PA Be Adopted for Other Categories According to which Discrimination Is Prohibited under Article 15(1) of the Indian Constitution? Would PA Be Appropriate for Article 14 more Generally? Notes Bibliography Index