Gender Justice And Proportionality In India: Comparative Perspectives (routledge Advances In South Asian Studies)

"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. Undifer Proportionality Analysis courts must engage in a structured process of reasoning. This book deals with Gendifer Justice and Proportionality Analysis in India. The author argues that the Supreme Court of India should considifer 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 gendifer, thus making a contribution to feminist jurisprudence. Finally, the author analyses Indian gendifer equality jurisprudence, demonstrating the inadequacies of the current doctrinal framework for achieving the goal of substantive gendifer equality and suggesting ways in which an Indian Proportionality Analysis might be fashioned to address these inadequacies. A novel examination of the gendifer situation in India in comparative perspective, this book will be of interest to academics in the field of Gendifer Studies, Asian and Comparative Law and South Asian studies."--Provided by publisher Cover 1 Half Title 2 Title Page 4 Copyright Page 5 Dedication 6 Table of Contents 8 List of tables 9 Acknowledgements 10 Abbreviations 11 1. Introduction to Proportionality and Gender Equality 12 I India, Proportionality and the Right to Equality 13 II Judicial Review, “Juristocracy” and Proportionality in Perspective 14 III Conceptualizing Gender Equality 17 IV On Methodology 23 V On the Relevance and Limitations of Legal Doctrine 27 VI Reviewing the Scholarship—Gender Justice in Context 30 VII Chapters Two through Seven: An Incremental Analysis of PA’s Impact on Gender Justice 33 Notes 34 Bibliography 39 2. Constitutional Courts in Context: India, Canada and South Africa 44 I Women and Equality in Contemporary India, Canada and South Africa 44 II Factors that Influence Apex Constitutional Courts 46 III Historical Development 47 IV Judicial Independence and Accountability 52 V Public Perception and Support 63 VI Conclusions on the Indian, Canadian and South African Constitutional Courts in Context 69 Notes 69 Bibliography 77 3. Gender Equality Adjudication in Independent India: Judicial Discourse from Deference to Discord 80 I Introduction 80 II Conceptions of Equality and the Constituent Assembly 81 III Formal Equality: The Origins and Evolution of Classification Doctrine 87 IV Gender Justice and Judicial Innovation: The Cases of the 1970s and Beyond 90 V An Analysis of the Variable Standards in Recent Indian Equality Jurisprudence 105 Notes 113 Bibliography 119 4. Proportionality Analysis: Theoretical Foundations 123 I The Origins of Proportionality Analysis 123 II Theoretical Elements of Proportionality Analysis 126 III Theoretical Critiques of Proportionality Analysis 140 IV A Summary in Support of the PA Approach to Judicial Review in India 149 Notes 150 Bibliography 158 5. Doctrinal Iterations of Proportionality Analysis in Canadian Gender Equality Jurisprudence 161 I Equality under the Charter: Sex Equality Notwithstanding the “Notwithstanding” Clause? 162 II The Charter’s Section 1 Rights Limitation and Proportionality Analysis 164 III Canada’s Equality Jurisprudence under the Charter: Justification’s Attenuated Role 167 IV Gender in Canadian Equality Jurisprudence 175 V Justification’s Attenuated Role in Canadian Gender Equality Jurisprudence – Implications for an Indian PA 177 Notes 178 Bibliography 181 6. Doctrinal Iterations of Proportionality Analysis in South African Gender Equality Jurisprudence 184 I Introduction to the South African Iteration of Proportionality Analysis in the Gender Equality Context 184 II Adjudicating the Right to Gender Equality in South Africa – Constitutional Provisions 185 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 193 Notes 196 Bibliography 199 Cases: Canada 199 Cases: South Africa (Constitutional Court) 199 Constitutional and Statutory References: South Africa 199 7. Reprise and Implications: Defining the Attributes of an Indian Proportionality Analysis for Gender Equality and Beyond 200 I A Review of Perspectives on Proportionality from Theory and Practice 201 II Proportionality in India – Legal Foundations and Existing Applications 202 III Exploring the Possibilities of an Indian Doctrine of Proportionality Analysis 205 IV What Impact Could PA Have on Indian Gender Equality Jurisprudence? 207 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? 210 Notes 212 Bibliography 214 Index 217 "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 doctrineâ#x80;#x99;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."--Provided by publisher Introduction To Proportionality And Gender Equality -- Constitutional Courts In Context: India, Canada And South Africa -- Gender Equality Adjudication In Independent India: Judicial Discourse From Deference To Discord -- Proportionality Analysis: Theoretical Foundations -- Doctrinal Iterations Of Proportionality Analysis In Canadian Gender Equality Jurisprudence -- Doctrinal Iterations Of Proportionality Analysis In South African Gender Equality Jurisprudence -- Reprise And Implications: Defining The Attributes Of An Indian Proportionality Analysis For Gender Equality And Beyond. Juliette G. Duara. Includes Bibliographical References And Index.