Reconciling the Constitutional Gender Equality Rights and the Gender Discriminatory Custom in Indian Courts

This essay reviews and assesses aspects of the Indian courts’ interpretation of the relationship between the Constitution’s gender equality principles and gendered local customary laws. It studies the court opinion’s legal, structural, and substantive considerations for determining the constitutionality questions of the discriminatory customary law. The paper evaluates how courts appear to reconcile the Constitution and custom impasse on the gender equality question. It argues that courts tend to use imaginative ways to respond to the gender equality impasse. One way is to invoke interpretive statutes such as the General Clauses Act and modify the gender discriminatory clauses of any regulation in question. In another method, courts tend to utilize the natural justice principles of justice, equity, and good conscience to the gender discriminatory clauses. Here, the courts offer gender-neutral construction to the disputed statutory clauses through a “reading down” constructive interpretation. Driven by substantive considerations, the courts, thus, modify gender-discriminatory statutory clauses and avoid striking down the clauses of the statute altogether.