In Abeyasinghe, a MPhil student at a public university was sexually and mentally harassed by her co-supervisor. Following a complaint to the Vice Chancellor, a Formal Inquiry Committee (FIC) found Prof. Thilakaratne guilty but the University Council decided to reject the Committee report. The victim submitted a formal complaint to the University Grants Commission (UGC), yet the Council reaffirmed its earlier decision. A complaint was also made at the Human Rights Commission of Sri Lanka. As a last resort, the victim petitioned to the Supreme Court, claiming the inaction of the Council has violated her fundamental rights. While  Article 345 of the Penal Code  recognises sexual harassment as a criminal offence, the victim filed a fundamental rights claim, as the case was also about accountability and responsibility of the university as a workplace in addressing complaints of sexual harassment as much as it was about the specific crime.

Workplaces have a responsibility to provide a safe and supportive environment for employees as established in Brandix Apparel v. Fernando. Internal mechanisms are established within workplaces to ensure that perpetrators of such crimes are held accountable. However, in this case, the internal mechanism failed as it didn’t act on the findings that found the accused guilty. Therefore, the petitioner claimed the council’s failure to act has of the Constitution of Sri Lanka.

The respondents claimed the application is time barred as it was filed past to which, the courts agreed. However, relying on thein Noble Resources v. Siyambalapitiya,  it was expressed that the “courts cannot close its eyes” and allow the state or public authorities “to go unchecked”, because of the lack of “locus standi”. The courts emphasized that administrative delays and procedural barriers should not lead to the denial of justice, specifically since survivors of workplace harassment have to navigate a lengthy internal process exhausting which they resort to the judiciary, with the fear of re-traumatisation. Therefore, invoking Article 126(4) of the Constitution that provides extensive powers to the court to issue just and equitable directions, the courts decided not to dismiss the case.

Furthermore, the respondent did not impugn the findings of the FIC and the inaction of the Council does not make the findings null or void. Thereby, the court affirmed the findings of the FIC to be valid while indicating that internal mechanisms of inquiry are not merely symbolic mechanisms and institutions cannot disregard their own findings and avoid accountability.

Relying on the findings of the FIC, the court prohibited Prof. Thilakaratne from holding any academic post in Sri Lankan universities. Further, no institute under the UGC can provide him with any such opportunities and the University of Peradeniya was directed to enforce and raise awareness of sexual harassment for staff and students.

This judgement has broader implications on educational institutions and workplaces across Sri Lanka. It emphasises the responsibility of workplaces but also educational institutions to respond to sexual and gender-based violence and instill mechanisms to address such issues not merely on paper but in operation. Finally, the intervention of the Supreme Court when the internal mechanisms failed reaffirms that institutions cannot evade responsibility through administrative delay or bureaucratic cover ups and the courts will not bar from justice due to legal technicalities. The case at large, elevated workplace harassment from an internal disciplinary issue to an issue that engages constitutional guarantees of dignity and equality.

This controversial constitutional conundrum in the Gambia is forcing the nation and human rights advocates worldwide to confront enduring tensions between cultural identity and the protection of fundamental rights. At the heart of the dispute are efforts by some religious leaders and a Member of Parliament to overturn the ban on FGM, a practice that disproportionately affects children and has serious health and human rights consequences. A coalition led by MP Almameh Gibba has challenged the 2015 prohibition in the Gambian Supreme Court, claiming that criminalization violates constitutional guarantees of cultural and religious freedom. The central argument of this blog is that the legal challenge to the FGM ban threatens to undermine hard-won protections for women and girls by prioritizing claims of cultural and religious freedom over the fundamental human rights to health, dignity, and bodily integrity.

Recent surveys show that approximately 73% of Gambian women aged 15–49 have undergone FGM, often in early childhood, despite overwhelming evidence that the practice causes serious physical and psychological harm. FGM confers no medical benefit and is categorized by global health authorities as a harmful practice that jeopardizes physical and psychological well-being. Within this context, the ongoing Supreme Court challenge transcends abstract debates over religious or cultural prerogatives; it poses a fundamental legal test of the state’s duty to uphold the rights to life, bodily integrity, and human dignity, especially with respect to minors who are most at risk. As the United Nations and UNICEF have noted, thousands of Gambian women and girls have experienced the practice, which can result in long-term physical, psychological, and social consequences and is widely recognized as a form of violence against women and girls.

Despite the enactment of the Women’s (Amendment) Act 2015 (supra), enforcement remained largely dormant for several years, with few recorded prosecutions. The situation shifted in 2023 when three women were convicted for performing female genital mutilation on eight young girls, the first significant criminal convictions under the law. These prosecutions triggered intense backlash from segments of religious and traditional leaders who perceived the enforcement of the ban as an intrusion into long-standing cultural and religious practices. In response, a constitutional challenge was initiated before the Supreme Court of The Gambia, with opponents arguing that the statutory prohibition unjustifiably restricts constitutionally protected freedoms relating to culture and religion. The Court has since confirmed that it possesses jurisdiction to hear the matter, clearing preliminary procedural hurdles and setting the stage for a substantive determination on the constitutionality of the FGM ban.

Fatou Baldeh described FGM as a “serious form of violence against women” that destroys physical and psychological well‑being and emphasised that the resurgence of the debate signals broader threats to women’s rights. She adds that “across all regions, women and girls continue to confront systematic and coordinated attacks on their hard-won rights.” The intensification of this legal struggle has drawn parallels with other retrogressive movements seen globally, where women’s rights are contested, from access to reproductive health services to protection against violence. Comparative jurisprudence, including decisions from Kenya, has similarly affirmed that bans on FGM are compatible with constitutional rights and necessary to protect women and girls. International human rights organizations widely recognize female genital mutilation (FGM) as a violation of human rights, infringing on women’s and girls’ rights to health, dignity, and physical integrity. The World Health Organization (WHO) and UNICEF categorize FGM as discriminatory and harmful, while UN agencies jointly affirm that it cannot be justified on any grounds.

The regional legal context also supports anti‑FGM stances. The Economic Community of West African States (ECOWAS) Court of Justice  has characterized harmful practices like FGM as cruel, inhuman, and degrading treatment rising to the level of torture and therefore not protected under claims of tradition or religion. This jurisprudence reinforces that even deeply entrenched cultural practices cannot justify the infliction of severe physical and psychological harm. Across West Africa, national responses to FGM vary significantly, with some states adopting comprehensive legal prohibitions and enforcement measures while others have either limited bans or no effective prohibition at all. For example, Senegal has outlawed FGM and actively pursued legal measures to suppress the practice, backed by decades of community and legislative action following its ban. Similarly, Ghana has criminalized FGM through explicit provisions in its Criminal Code and related domestic violence legislation, giving prosecutors clear authority to bring offenders to justice, and civil society has long championed enforcement. Burkina Faso, too, has statutory prohibitions against FGM and is regarded as having a legal framework with relatively strong anti‑FGM provisions among West African nations.

By contrast, other countries in the region exhibit inconsistent legal coverage or resistance to formal prohibition. Sierra Leone, for example, remains one of the few countries in West Africa with no comprehensive ban on FGM despite widespread prevalence and cultural pressure; although initiation ritual–related cutting was criminalized in 2019, other forms of FGM remain legal in many contexts. Mali and Guinea, both with some of the highest regional prevalence rates of the practice at around 88–94 percent among women, lack fully enforced national bans and continue to contend with deep cultural adherence to FGM. These disparities illustrate that, while some states have taken clear legislative and enforcement steps to protect girls and women from FGM, others have lagged or resisted codifying explicit legal protections, contributing to a patchwork of legal responses within the region.

A decision to uphold the ban would reaffirm the primacy of human rights protections over cultural relativism in harmful practices; a reversal could embolden movements to undermine women’s rights across the region. Crucially, the razor blade, a tool historically associated with secrecy and violence now symbolizes a crossroads: it may either remain a stark reminder of the urgent need for legal and social reform or become emblematic of retrogression and impunity.

This judgment not only seeks to dismantle the structural inequalities but also criticizes the fundamental flaws in classical economic theories that hold women’s labour in the household unpaid and invisible. Previously, the Supreme Court had, in calculating compensation to victims of corporate negligence, considered the multifarious services by housewives and estimated a value of minimum 3000INR for their labour. Further, in Arun Kumar Agarwal, the court had criticized the equation of a homemaker to a servant as the former’s role involves emotional and physical care that sustains the primary breadwinner’s ability to earn. More recently, a prominent shift can be observed in the judicial approach to quantification of domestic labour to align it directly with the constitutional vision of social equality. Kirti v Oriental Insurance Co Ltd elaborates on the methodologies for such quantification and even goes on to keep room for ‘future prospects’ (considering inflation and experience gained over time). Deconstructing the deep-rooted gender stereotypes, the Court has clarified that the deemed income of a homemaker, can under no circumstance, be less than the minimum wages notified for a daily wage worker. Drawing on these, the 2026 judgment crystallises the legal recognition to homemakers’ contribution to national economic growth.

Seen with a feminist lens, the judgment holds immense value not just for securing socio-economic justice to homemakers but for acknowledging the psychological weight of their labour. The normalisation of their emotional overload as feminine attributes is questioned, especially when contrasted with the praise men receive for their monetised labour in the public sphere. It explores the patriarchal trap of “forced dependency” of homemakers on their earning counterparts, which makes them objects of sympathy at the best and a growing liability at the worst. The Supreme Court has sought to flip this dynamic by elaborating the dependency of earning men on their homemakers. It also upholds that India’s low female labour force participation is far from being a conscious choice of women workers but a direct reflection of the structural imposition of domestic responsibilities on women alone, thereby aligning with the current ILO jurisprudence.

On a deeper level, the Court dismantles the public-private divide in human rights law. Historically, feminists have critiqued the legal apathy toward women’s rights violations in the private sphere. By fixing a financial value for ‘loss of domestic care’, the Court reinforces that unpaid domestic labour is essential to the national economy [20]-[22]. Building on the “double burden” of women juggling domestic care and professional roles, it mandates that compensation for domestic work must be over and above her professional salary.

What holds back this judgment from truly championing the feminist cause is the patriarchal remnants that engender foundational loopholes within the narrative. The context and scope of the judgment are strictly limited to damages claimed in motor vehicle accidents. While a homemaker’s labour is recognized and quantified, it cannot be enforced by her in her lifetime. The State only rewards her labour to her children and husband when she has died. Besides, despite her recognized labour in building the home, she has no statutory right to claim compensation for her labour upon the dissolution of her marriage.

The judgment stands as a landmark on India’s socio-economic terrain, but fails to fully deliver on gender equality inside the households. Mere quantification of unpaid domestic labour will not suffice. Predicating on its feminist approach, a stronger protection of women’s economic rights (instead of a posthumous recognition) is awaited.

GBV in refugee camps is not random. It is produced by the conditions of displacement: overcrowded shelters, economic precarity, and patriarchal community norms. Domestic violence, child marriage, and sexual exploitation thrive where accountability is weak. Informal justice mechanisms, often the only recourse, tend to reinforce patriarchal expectations, urging survivors to remain silent or accept reconciliation rather than pursue justice. UNHCR’s GBV factsheet shows how restrictions on movement and limited education opportunities heighten risks of exploitation and abuse.

Intersectionality and the Weight of Displacement

Kimberlé Crenshaw’s theory of intersectionality reminds us that Rohingya women’s experiences of GBV cannot be understood through gender alone. Displacement itself shapes the contours of GBV. Migration uproots women from familiar social networks, leaving them dependent on humanitarian structures that often fail to protect them. Statelessness compounds this, stripping away legal identity and access to rights. The camp becomes both a place of refuge and a site of harm.

Testimonies collected by UNFPA Bangladesh show women walking for days with children, losing homes and relatives, and arriving in Bangladesh with nothing. Research on lived experiences of displacement highlights how migration transforms gender roles, forcing women into new responsibilities while exposing them to heightened risks (Global History Dialogues).

Statelessness, displacement, poverty, and cultural norms intersect to produce unique forms of harm. A Rohingya woman is not only a survivor of violence; she is also a refugee denied legal status, a mother navigating food insecurity, and a member of a community excluded from formal employment. Each axis of marginalisation compounds the others, creating barriers invisible if viewed in isolation.

Women’s Agency as a Pathway to Justice

Rohingya women face layers of disadvantage, such as displacement, poverty, and patriarchal norms; that too often leave them invisible or unheard. Breaking that cycle means putting empowerment at the heart of the response, so their voices and leadership can’t be ignored. Rohingya women are not just victims of displacement; they are leaders reshaping their own futures. In the camps, they organise networks, run informal schools, and speak out for health and education. Programmes like UN Women’s LEAP initiative show how women’s groups in Cox’s Bazar provide peer support, challenge patriarchal norms, and create safe spaces where survivors can be heard. These efforts are about more than survival: they are acts of resistance against the structures that allow gender‑based violence to persist.

When women are able to organise collectively, they protect themselves, document abuse, demand accountability, and connect survivors to humanitarian and legal actors. Experiences from Uganda, where refugee women’s cooperatives have built economic independence, and Jordan, where Syrian women have created informal schools and legal awareness campaigns, show how collective action can turn vulnerability into resilience.

These initiatives are only possible through women’s agency. Strengthening agency through education, legal empowerment, and recognition of women’s leadership is essential if justice is to move from aspiration to reality. In this way, women’s agency is not only about survival, it is the foundation for dismantling GBV and building justice in contexts of displacement.

Yet agency alone is not enough. Without recognition or access to courts, these initiatives remain fragile. Women’s voices are powerful, but they need systems willing and designed to listen.

Access to justice remains the most pressing gap. Humanitarian programmes provide psychosocial support and safe spaces, but they cannot substitute for legal accountability. Restrictions on movement, education, and communication prevent women from pursuing formal remedies. Donor politics further depoliticise GBV programming, as agencies avoid challenging host state policies. The UN’s Her Rights, Her Justice initiative documents Rohingya women reclaiming protection through grassroots action, but also shows how survivors struggle to access meaningful justice. International justice processes, such as those examined in Progress in Development Studies, often fail to consult women directly, raising questions about legitimacy.

Conclusion

The struggle of Rohingya women in Cox’s Bazar illustrates how GBV, intersectionality, women’s agency, and displacement converge. Violence is not incidental but structural, produced by bordering practices and sustained by humanitarian governance. They are suffering from overlapping vulnerabilities of gender, statelessness, poverty, and without legal recognition. As the International Court of Justice considers Myanmar’s responsibility for crimes against the Rohingya, the global community must also confront the architecture of containment in Bangladesh. Justice for Rohingya women requires more than services, it demands recognition of their rights, amplification of their voices, and dismantling of the structures that sustain violence. Only then can protection become real, and displacement cease to be a site of perpetual harm.

The Court in this case held that the alleged conduct did not meet the ‘statutory requirements’ under Section 354C of Indian Penal Code (Now Section 77 of Bharatiya Nyaya Sanhita). Section 354C criminalises watching or capturing the image of a woman engaged in a “private act”, where she would reasonably expect not to be observed. The law further clarifies that such private acts include exposure of intimate parts, use of a lavatory, or a sexual act not done in public. Dissemination of such images without the consent of the victim is also within the ambit of voyeurism. In the present case, the Court noted that the complaint merely alleged that the accused stared at the complainant’s chest during office meetings. There was no claim that she was engaged in a “private act” in a space where she expected not to be seen, and hence, the ‘basic ingredients’ of voyeurism were not made out.

Section 354C was introduced through the Criminal Law (Amendment) Act 2013, in the aftermath of the Nirbhaya case, at a moment when Parliament sought to confront not merely isolated acts of sexual violence but also the subtler patterns of intrusion that, if left unaddressed, would become social norms. The problem lies in the way “private act” is defined. It assumes that a woman’s privacy is tied to specific locations or activities – bathrooms, bedrooms, or explicitly sexual acts. In reality, it’s far more nuanced and complex. A woman being persistently stared at in a sexual manner in a workplace may not be engaged in a “private act” as defined by the statute, but the harm she experiences is real. Is it not a breach of her “intimate privacy“? Intimate privacy does not always involve explicit sexual activity, but also includes any situation where a person expects their body and presence not to be subjected to unwanted sexual scrutiny. It is the right to be seen without being seen as an object. The awareness of being reduced to object, of being denied intimate privacy, is a pure shame. In an official setting, when a man in a position of power persistently stares at a woman’s chest, objectifying her, he not only violates but disregards her expectation of privacy. This expectation can exist even in public or semi-public spaces. For instance, a mother breastfeeding in a park, a person sunbathing on the beach, or an employee attending a meeting, may all have a reasonable expectation that they will not be watched in a sexual manner. At the same time, not every instance of inappropriate behaviour is voyeurism. It is also about a behavioural pattern rooted in objectification and sexual control. As per the Merriam Webster dictionary, the practice of obtaining sexual gratification or watching someone surreptitiously is an essential ingredient of voyeurism.

Currently, the law is a strict liability provision. As per the current law, an inadvertent observation of a person bathing may be treated as voyeurism, while a deliberate act of capturing images of a woman in front of her house setting, such as her living room, may fall outside its scope. Expanding the scope of “private act” to include ‘non-consensual breaches of intimate privacy’ coupled with the presence of mens rea in such offences would allow the law to better address such harms. If the Indian judiciary continues to strictly interpret such laws, India’s progressive shift towards transformative constitutionalism will reverse, reducing what is a source of constitutional pride to a mere theoretical concept. If we are serious about addressing such crimes and ensuring dignity for all, it is time to rethink how we define voyeurism and privacy.

In Mst. Amara Waqas v Muhammad Waqas Rasheed and others (decided on 2 March 2026), the Islamabad High Court ruled that wives have a legal right to property accumulated during marriage under Islamic family law. Drawing on both Islamic and common law jurisprudence, Justice Kayani held that the principles of fairness require that a wife must share in the matrimonial property in addition to her other financial rights. He invoked the classical Islamic legal doctrine of partnership (shariqah), noting that where both spouses contribute to the acquisition of property, shared ownership may be recognised.

The judgment marks a significant milestone. For the first time, a superior court in Pakistan has recognised a wife’s legal right to matrimonial property and has held that the unpaid work she performs at home such as raising children, managing the household, supporting family life, has genuine economic value that the law must acknowledge. It is a landmark step forward in protecting women’s financial rights in the event of divorce in Pakistan, as argued in scholarly literature.

The judgment contributes to a growing body of Supreme Court jurisprudence that has progressively strengthened women’s rights within marriage. Recent Supreme Court judgments have reinforced this direction. In 2025, the Court held that a wife’s right to maintenance begins at the moment of marriage, not from the time she moves into the matrimonial home, and that her claim to unpaid maintenance has no time limit, since a husband’s duty to maintain his wife is a legal debt, not a moral favour. Taken together, these judgments mark a clear judicial direction: marriage in Pakistan is increasingly being formulated, via legal precedents, as a partnership between equals rather than a relationship in which the husband has superior position.

Yet the transformation is incomplete. One key area of family law that urgently needs reform is the remedy of restitution of conjugal rights. Rooted in Christian canon law and transplanted into Muslim personal law through British colonial court decisions rather than having any foundation in Islamic teaching, restitution sits uneasily with the contractual and consensual nature of Islamic marriage. In practice, it operates as a tactical weapon. When a wife files for maintenance, dower, divorce or custody of her children, her husband responds by filing a restitution petition — effectively asking the court to order her home rather than address her claims. Yet despite the incompatibility of restitution with the injunctions of Islam and its violation of the constitutional rights to dignity, equality, and non-discrimination, Pakistani courts have so far declined to strike it down. This is a striking omission that represents one of the most overdue reforms in Pakistani family law.

The recent judgments of superior courts reflect a decisive shift towards treating marriage as a partnership of equals. The restitution of conjugal rights belongs to the older, discredited model of marriage as ownership and control. It is a colonial relic that has no place in a legal order that now affirms the equal dignity and financial rights of wives. The case for abolishing the restitution remedy is as strong in Islamic law as it is in constitutional law, and the time for that judgment is long overdue.

In 2025, the Allahabad High Court took suo motu cognisance of what it viewed as a rise in fake temple societies that were issuing fabricated marriage certificates to eloping couples. According to the court, these fake certificates allowed them to circumvent statutory provisions, thereby degrading “the sanctity of marriage.” Earlier, registration of marriages required proof of age, birth, and marriage, along with three witnesses in the district where either spouse resided. The High Court restricted marriage registration to the couple’s or parents’ ordinary residence, requiring video recordings of the ceremony and the officiant’s physical presence at the registrar’s office. The registrar can waive these requirements only if family members are present during registration.

Through these guidelines, the court intends to protect minors from child marriage and potential sexual or labor exploitation. However, the court has imposed these restrictions upon all couples, including consenting adults. In doing so, it has significantly endangered inter-caste and inter-religious marriages, which may be solemnised against the consent of the families. The trajectory of the proposed Gujarat law is along similar lines—surveillance under the guise of protection. The dangers of mandating parental consent can act as a weapon in the hands of family members who often misuse the administrative machinery to threaten these couples with false kidnapping or abduction charges, something that has already been dissuaded by the Supreme Court in Lata Singh v State of UP.

Even when the outcome protected the freedom to choose a partner, the process of arriving at it was a punishment in itself. In Shafin Jahan v KM Ashokan, the Supreme Court held that the right to marry a person of one’s choice is part of the right to life (Article 21 of the Constitution of India). The court also cautioned against unbridled use of parens patriae jurisdiction by holding that it cannot be used to determine “the suitability of partners to a marital tie.” While the final decision was a welcome outcome and landmark precedent, the choice of the adult woman was subject to extraordinary scrutiny. The Kerala High Court had initially invalidated the voluntary marriage and granted custody to Hadiya’s father.  It took several months of hearings before the Supreme Court finally overruled the Kerala High Court’s decision.

These measures risk framing individuals, particularly women, as inherently vulnerable children of the state whose choices require supervision. This reinforces patriarchal control that undermines autonomy and dignity under the garb of welfare. Intimate relationships may often be sites of gender inequality and consequent power imbalances. While the state should address power imbalances, regulation must not convert into surveillance. Laws that question the choice of partner or mandate familial consent do not empower individuals. Even if the state creates such laws, the courts must fulfill their role as guardians of fundamental rights. This piece highlights that the courts have not always undertaken this task and many times even initiated paternalistic scrutiny. However, there are also instances where the courts have meaningfully examined law created by the State. In Safiya Sultana v. State of UP, the Allahabad High Court read the requirement of a thirty-day notice to the public before marriage under the Special Marriage Act 1954 as optional. It held that the mandatory application of these provisions violates the fundamental right to privacy and liberty, including the freedom to choose one’s partner without state interference. It also noted that such a notice requirement was peculiar to the SMA and no other personal laws required this. Therefore, courts ought to follow this trajectory and adopt robust methods to defend fundamental rights.

The Court has emphasized that the purpose of providing maternity benefits is not solely associated with the biological process of childbirth but rather with a holistic understanding of attainment of motherhood. This perspective positively reinforces the ideology that adoptive mothers require the same time, protection, and institutional support to build a secure attachment with the child. This not only benefits adoptive mothers but also promotes the nurturing of adopted children.

However, a question sure does arise: do the physical, emotional, and social demands placed on the mothers remain constant as a child progresses through different age levels? Clearly the case is not so. The object of maternity leave is to provide economic security to new mothers while they nurture and care for their young children. Allowing the extension of the same maternity benefits in the case of infants and adolescents, for example, creates a scenario of over-inclusiveness as the intensity and nature of a child’s physical, emotional, and social needs evolve significantly with age. Young children require constant care and physical presence due to their high dependency on parents; however, such dependency progressively decreases as a child grows older. The legislature can address this issue by providing different maternity benefits for adoptive mothers, calibrated to the age and corresponding emotional requirements of the child.

The court has, however, praiseworthily considered the negative social impact of the provision on children with disabilities, whose adoption would be discouraged since they would require the presence of the parents during the initial period of adjustment after adoption, or on single adoptive mothers who might have to shoulder the full responsibility of integrating such a child into a familial environment while simultaneously balancing their professional duties. By embracing inclusiveness, this approach paves the way for adoption laws to reflect genuine lived experiences, thereby offering greater protection to society’s most vulnerable adoptive mothers and children.

Re-emphasizing the right to privacy and decisional autonomy in relation to reproduction and family life, the Court also expanded the scope of reproductive autonomy by including adoption alongside biological reproduction.

However, the most significant contribution by the Court lies in the obiter dictum on paternity leave. The Court discussed and recognized the need for paternity leave and the importance of the active presence of the father in the early years of a child’s life. Maternity leave is grounded in the gendered assumption that care-giving responsibilities rest solely with mothers. The Court remarked that paternity leave dismantles such gendered roles and encourages fathers to take an active role in childcare, thus advancing the best interest of the child. Such recognition by the Court is seminal in the advancement of a gender-neutral framework for parental benefits. It further supports the theory of relational care, emphasizing care-giving as a shared and relational responsibility rather than an individual responsibility. Indian courts on previous occasions have missed the opportunity to address the clear legislative gap in relation to paternity leave. However, the judgement establishes a foundational stepping stone towards the attainment of gender-neutral institutional frameworks for parental rights.

The Hamsaanandini judgement is a progressive and necessary step towards an inclusive understanding of motherhood and paternity rights. However, clear statutory enactments are still necessary to delineate the contours of paternity leave as well as maternity benefits for adoptive mothers of children of varying ages. Such enactments would institutionalize a gender-neutral and child-centric egalitarian framework based on the equality and dignity of parents and children alike.

Ayant fui au Québec, province canadienne, en 2018, Mme Bijou Kanyinda a dû attendre plus de deux ans pour que sa demande d’asile soit traitée et ultimement accueillie par le gouvernement fédéral. Pendant cette période, elle s’est vu refuser l’accès au programme de garderies subventionnées par la province, en vertu de l’art. 3 du Règlement sur la contribution réduite pris en application de la Loi sur les services de garde éducatifs à l’enfance du Québec. Cette disposition rend admissibles au programme huit catégories de parents qui résident au Québec, y compris les citoyens canadiens, les résidents permanents et certains types d’immigrants ayant un statut temporaire – mais pas les demandeurs d’asile dont la demande n’a pas encore été tranchée.

Mme Kanyinda a plaidé que la disposition viole son droit à la protection contre la discrimination fondée sur le sexe, la citoyenneté ou un nouveau motif de discrimination analogue proposé, soit le statut d’immigration ou de demandeur d’asile, en vertu du par. 15(1) de la Charte canadienne des droits et libertés – la disposition constitutionnelle protégeant le droit à l’égalité. À la Cour suprême, huit des neuf juges concluent à une violation non justifiée du droit à l’égalité, bien qu’ils parviennent à ce résultat par le biais d’approches analytiques différentes.

S’exprimant au nom de cinq de ses collègues, la juge Karakatsanis choisit de trancher l’affaire en fonction du motif de discrimination fondée sur le sexe, en appliquant le cadre d’analyse à deux étapes fondé sur l’art. 15 bien établi dans la jurisprudence antérieure. À la première étape de l’analyse, elle conclut que la disposition contestée a un effet disproportionné sur les demanderesses d’asile et qu’elle créé donc, de par ses effets, une distinction fondée sur le sexe.

À la deuxième étape, elle conclut que le fait de nier aux demanderesses d’asile le bénéfice des services de garde subventionnés a pour effet de renforcer, de perpétuer ou d’accentuer les désavantages auxquels elles sont confrontées. En ce qui concerne la question de la justification à l’article premier de la Charte, la juge Karakatsanis conclut qu’il n’existe aucun lien rationnel entre l’exclusion des demandeurs d’asile et l’objectif législatif mis de l’avant par le gouvernement du Québec, soit celui de « limiter l’admissibilité à la subvention pour les services de garde aux personnes ayant un lien suffisant avec le Québec ».

En guise de réparation, la majorité invoque « l’interprétation extensive » de l’art. 3 du Règlement de sorte que les demandeurs d’asile soient tous considérés comme admissibles aux services de garde subventionnés.

Dans des motifs concordants, le juge Rowe conclut lui aussi que la disposition contestée établit une discrimination fondée sur le sexe injustifiée, quoiqu’il aurait accordé au gouvernement une plus grande marge de manœuvre à plusieurs égards.

Pour sa part, dans le cadre de motifs concordants souscrivant au dispositif, le juge Wagner se dit d’avis que l’affaire peut être tranchée de manière plus naturelle en concluant à une discrimination injustifiée fondée sur le statut de demandeur d’asile, motif qu’il aurait reconnu à titre de motif analogue protégé aux termes de l’art. 15. Ses motifs font écho – et en fait amplifient – la reconnaissance de la majorité quant au fait que la disposition contestée renforce les stéréotypes néfastes concernant les demandeurs d’asile.

La juge Côté, quant à elle, se dit en désaccord avec ses collègues quant à presque chaque élément de l’analyse. Bien que ses motifs trahissent une compréhension qu’on puisse dire appauvrie du vécu des réfugiés, ils démontrent cependant une sensibilité accrue aux inquiétudes quant la pérennité du système. De plus, en insistant que le gouvernement n’a pas « causé » les effets préjudiciables reprochés et qu’on doit lui permettre de s’attaquer à un problème sociétal de manière graduelle, les motifs de la juge Côté dénotent un respect plus profond pour les efforts déployés par le Québec pour promouvoir l’égalité des sexes par le biais d’un programme de garderies subventionnées robuste, si imparfait, qui fait d’ailleurs l’envie des autres provinces canadiennes et leur sert d’inspiration.

Trois observations clé ressortent des motifs majoritaires.

La première concerne l’accent indéniable que place la majorité sur l’adoption d’une approche intersectionnelle, insistant comme elle le fait sur l’examen des « identités et réalités intersectées » du groupe demandeur. La majorité affirme que l’approche intersectionnelle aux allégations de violation de l’art. 15 n’a rien de nouveau ; or, il est intéressant de noter la façon dont cette approche est intégrée à chaque étape de l’analyse.

La deuxième observation concerne le peu d’importance qu’accorde la majorité aux arguments s’appuyant sur le principe du gradualisme, insistant sur le fait que le caractère amélioratif d’un programme n’empêche pas que ce dernier soit assujetti à un examen fondé sur le par. 15(1).

La dernière observation concerne la préférence qu’exprime la majorité pour aborder le litige sous l’angle d’une allégation de discrimination indirecte fondée sur le sexe plutôt que sous celle d’une allégation de discrimination indirecte fondée sur un motif analogue jusqu’ici non reconnu, soit le statut de demandeur d’asile.

Ce penchant semble témoigner de la flexibilité du cadre d’analyse consolidé applicable à la fois à la discrimination directe et indirecte en application du par. 15(1) et de la forte protection qu’offre la Charte à l’encontre des mesures apparemment neutres mais ayant un effet discriminatoire.

L’engagement de la majorité à détecter la discrimination insidieuse à l’encontre des femmes et son évaluation lucide du contexte global de la situation du groupe demandeur méritent d’être célébrés. Cela dit, la réaction politique à la décision, soulevant immédiatement la disposition de dérogation de la Charte comme moyen potentiel de contourner la réparation accordée par la Cour, est plutôt décourageante. La décision dûment motivée de la CSC devrait plutôt inciter le gouvernement à solidifier son programme de garderies subventionnées de sorte à en assurer la pérennité. Un accès plus inclusif aux services de garde abordables bénéficie profondément aux enfants comme à ceux qui en sont responsables – en fait, cela bénéficie à toute la société.

Fleeing to Quebec, Canada in 2018, Ms Bijou Kanyinda waited over two years for her refugee claim to be processed and ultimately approved by the federal government. During that period, she was denied access to the province’s subsidized childcare program pursuant to s 3 of Quebec’s Reduced Contribution Regulation, made under the Educational Childcare Act. The provision deems eligible eight categories of parents who reside in Quebec, including Canadian citizens, permanent residents and certain types of temporary immigrants – but not asylum seekers whose claim has yet to be determined.

Ms Kanyinda argued the provision breached her right to be free from discrimination based on sex, citizenship and a new analogous ground, namely immigration status or refugee claimant status, under s 15(1) of the Canadian Charter of Rights and Freedoms – Canada’s constitutional equality provision. In the SCC, eight of the nine judges found an unjustified violation of the right to equality, though they reached that conclusion through different analytical pathways.

Writing for five of her colleagues, Justice Karakatsanis decided the case on the sex discrimination ground, applying the previously established two-step test for assessing violations of s 15(1). Under step 1, she found that the impugned provision had a disproportionate impact on refugee claimant women and thus created, in its effect, a distinction based on sex. Under step 2, she concluded that denying women refugee claimants the benefit of subsidized childcare reinforced, perpetuated and exacerbated their disadvantage in myriads of ways. Turning to justification under s 1 of the Charter, Justice Karakatsanis found that the exclusion of refugee claimants was not rationally connected with the Quebec government’s stated objective of ‘limiting daycare subsidies to people with a sufficient link to Quebec’. By way of remedy, the majority ordered ‘reading in’ s 3 of the Regulation the eligibility of all refugee claimants to subsidized daycare.

In concurring reasons, Justice Rowe also found unjustified sex discrimination, despite providing more leeway to the government in several aspects of the analysis. Meanwhile, Chief Justice Wagner, who concurred in the result, felt the case could be dealt with in a more straightforward manner by finding unjustified discrimination based on refugee claimant status, which he would have recognized as an analogous ground of prohibited discrimination under s 15(1). His reasons echo and amplify the majority’s acknowledgement that the law plays into harmful stereotypes about asylum seekers. Justice Côté disagreed with her colleagues on just about every issue. While her reasons betray an arguably poorer understanding of the refugee experience, they show greater concern for the system’s sustainability, and through her insistence that the government has not ‘caused’ the adverse effects complained of and must be allowed to tackle a problem gradually, they convey deeper respect for Quebec’s efforts in promoting gender equality via an overall robust – albeit imperfect – subsidized daycare program, one that has long been a source of envy and inspiration in other Canadian provinces.

Three points stand out from the majority decision.

First is the emphasis the majority places on the adoption of an intersectional lens, insisting on considering the claimant group’s ‘intersecting identities and realities’. While the majority states that an intersectional approach to s 15 is nothing new, the manner in which it is integrated in every step of the analysis is remarkable.

Second is how little room the majority gives to arguments relating to incrementalism when determining whether the right to equality had been infringed,  insisting that the ameliorative character of a program does not shield it from s 15(1) scrutiny.

The final point is the majority’s preference for dealing with the case as an allegation of indirect sex-based discrimination rather than direct discrimination on an as-of-yet unrecognized analogous ground, namely refugee claimant status. This inclination is arguably a testament to the flexibility of the consolidated test applicable to both direct and indirect discrimination under s 15(1) and the strong protection the Charter offers against adverse effects discrimination.

The majority’s commitment to detecting insidious discrimination against women and its open-eyed consideration of the full context of the claimant group offer something to celebrate. Less encouraging is the political discourse immediately turning to the Charter’s ‘notwithstanding clause’ as a means of effectively bypassing the Court’s remedy. This carefully reasoned decision should instead prompt the government to bolster the sustainability of its program. More inclusive access to affordable childcare immensely benefits children and those responsible for them – in fact, it benefits all of society.