Equality imperative: India must rid its justice system of gender injustice
Summary
At stake is not just justice, but the broader promise of constitutional equality. The Constitution must guide the delivery of justice and societal attitudes should have no say in it. Sadly, many recent cases have let us down.
In recent weeks, we have witnessed a series of judicial pronouncements that reflect deeply ingrained social attitudes towards women’s choices. The Allahabad high court denied police protection to a consenting interfaith couple that had married against their families’ wishes. In a separate case of rape, the same court made such insensitive remarks that the Supreme Court was compelled to intervene.
These point to a larger issue: the law in India too often mirrors society’s prejudices, rather than upholding constitutional ideals of equality and autonomy. Whether in the courtroom or the community, the agency of women continues to be questioned, regulated and restricted.
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The Allahabad high court’s refusal to grant police protection to the interfaith couple, despite their status as consenting adults, was rationalized on the grounds that the woman’s decision was “hasty" and unlikely to result in a “peaceful, meaningful life." This not only disregards her right to make personal choices, it reinforces a paternalistic belief that institutions can and should determine when a woman is capable of consent. The court’s language invoked social harmony, but what it really reflected was discomfort with autonomy that challenges tradition.
This discomfort was visible again when the same court downgraded charges in an attempted rape case involving a five-year-old girl. Although the accused had allegedly inappropriately touched the child and attempted to undress her, the act was shockingly not deemed an attempt to rape. The ruling defied common sense and sparked widespread outrage. While the Supreme Court has stayed the judgement, the fact that such reasoning was offered by a constitutional court reveals how deeply patriarchal frameworks still shape legal interpretation.
These rulings are not aberrations. In 2021, the Bombay high court ruled that “skin-to-skin contact" was required to qualify as sexual assault under the Protection of Children from Sexual Offences Act. More recently, the Chhattisgarh high court acquitted a man accused of marital rape, citing the absence of a legal provision—even though the survivor had clearly expressed non-consent.
These decisions reduce gender-based violence to a checklist of compliance, stripping away the context of power, fear and coercion. Even more troublingly, they expose a broader pattern: a resistance to recognizing women’s right to say ‘yes’ or ‘no’ and to be taken seriously when they do either.
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This resistance plays out in the backdrop of a national crisis. According to the National Family Health Survey (NFHS-5), nearly one in three ever-married women aged 18–49 in India has experienced spousal violence. In states like Bihar, the proportion is close to one in two. Yet, these cases are among the few that make it to official records. Many go unreported, buried under fear, stigma and the widespread perception that the system is not built to protect but silence women.
Gender-based violence is not only physical or sexual, it can be emotional, psychological or economic. It includes the denial of mobility, financial independence, education and healthcare. And when public institutions endorse such control, they don’t just fail survivors but reinforce the very systems that normalize violence in the first place.
The persistence of these attitudes is evident in public opinion. The NFHS-5 found that 37% of women and 34% of men believe a husband is justified in hitting his wife under certain conditions—most often for arguing, neglecting the house or showing disrespect to in-laws. Even among those with 12 or more years of education, one in four respondents held this belief. These norms aren’t confined to homes but are present in courtrooms, law enforcement and policy spaces, shaping judgements, investigations and access to justice.
Legal reform is necessary but not sufficient. We need to confront the patriarchal logic that still governs much of our legal reasoning. This means mandatory gender-sensitization training for judges, police personnel and others in the justice system. It also means rewriting laws to reflect a contemporary understanding of consent, coercion and autonomy. That marital rape has still not been criminalized is perhaps the most glaring example of the law’s denial of bodily autonomy in marriage.
Equally critical is the way cases are heard and survivors treated. Courts must move to trauma-informed procedures that prioritize dignity, privacy and agency. Often, women who come forward face cross-examination that resembles character assassination, or are met with disbelief, delay and dismissal.
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We also need public awareness campaigns that address regressive norms and shift perceptions. Population Foundation of India has been running a digital campaign ‘Desh badlega, jab mard badlega’ (better men for a better country) because we need men to unlearn harmful gender roles and become allies in advancing equality.
These are not abstract ideals. They are essential to building a just and democratic society. When courts validate moral policing, question the legitimacy of adult consent or reduce violence to technicalities, they signal that women are not equal citizens and their rights can be negotiated or denied.
At stake is not just justice, but the broader promise of constitutional equality. India’s legal system must rise above social prejudice. It must not only protect survivors of violence, but also uphold the dignity, rights and autonomy of all women.
The authors are, respectively, executive director and senior specialist, media and communications, Population Foundation of India.
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