Anuj Garg v. Hotel Association of India, a 2007 judgment by a two-judge bench of the Supreme Court, is well-known for the debate over whether or not it expressly incorporated the doctrine of “strict scrutiny” into India. Ashoka Kumar Thakur, the 2008 constitution-bench case on reservations, expressly rejected it – but then Naz Foundation decided to read the two cases “harmoniously” by adopting it for non-reservation based discriminatory measures. In actuality, however, Anuj Garg adopts at least three distinct standards of review (strict scrutiny, intermediate scrutiny, and European/Canadian style proportionality review), and it remains unclear which of those tests the Court finally endorses as a matter of constitutional law.
Anuj Garg, however, does do another very important thing: it provides the constitutional foundations for a genuinely progressive jurisprudence of sex equality under Articles 14 and 15 of the Constitution. It does so by invoking something called the “anti-stereotyping principle” that has become the foundation of American sex equality jurisprudence (albeit patchily applied). In particular, Anuj Garg cites three American cases, Frontiero v. Richardson, United States v. Virginia, and Justice Marshall’s dissent in Dothard v. Rawlinson. Let us briefly consider, then, American sex equality jurisprudence.
In Frontiero, what was at issue was a statute that allowed service-members to claim additional benefits if their spouse was “dependent” on them. If the claimant was male, he could claim automatically for his wife. If the claimant was female, on the other hand, she would have to actually demonstrate that her husband was dependent on her for more than half his support. The Court struck the statute down for violating the equal protection clause of the American Constitution. Justice Brennan, writing for the Majority, acknowledged the long history of sex-discrimination in the United States, in words that will sound very familiar:
“Traditionally, [sex] discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage… [for example, that] the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator… As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes.”
As the statute seemingly could not be justified on grounds other than the stereotypical, “separate-spheres” notion of men being bread-winners and woman being care-givers, it was struck down. After Frontiero, in a series of cases such as Craig v. Boren, Personnel Administrator v. Feeney and Mississippi University v. Hogan, the Court fleshed out this doctrine: essentially, if the justification for a classification based on sex, and one that imposed unequal benefits and burdens, rested upon “stereotypes” of the role of men and women in society, the classification was unconstitutional. Note that the doctrine works both ways: in Mississippi University, the Court struck down a females-only admissions policy to nursing school, holding that in denying admission to equally qualified male applicants, it rested on stereotypical notions about nursing being a “woman’s job”.
This brings us to US v. Virginia. The Virginia Military Institute was a single-sex school with a mission to produce “citizen-soldiers”, for which purpose it provided a certain “adverserial” form of education, and excluded women from admission. Leaving aside a bevy of complicated facts, basically, VMI argued (among other things) that its unique model of character development and leadership training would have to be modified if it admitted women. That, in turn, was based on the testimony of certain expert witnesses, who provided:
“… opinions about typically male or typically female “tendencies.” For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” “I’m not saying that some women don’t do well under [the] adversative model,” VMI’s expert on educational institutions testified, “undoubtedly there are some [women] who do”; but educational experiences must be designed “around the rule,” this expert maintained, and not “around the exception.” Ibid. (internal quotation marks omitted).”
The Court rejected this justification, warning once again that statutes/governmental policies based on “fixed notions concerning the roles and abilities of males and females” were unconstitutional. And that:
“…generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
Consequently, the VMI policy was struck down.
Keeping this framework in mind, let us now turn to Anuj Garg. Anuj Garg concerned a challenge to Section 30 of the Punjab Excise Act, which prohibited the employment of any man under the age of 25, and any woman, in any part of an establishment in which liquor or another intoxicating drug was being consumed. The Court started by taking note of the fact that the Act was a pre-constitutional legislation, passed before the guarantees of sex equality under Articles 14 and 15 became the law of the land. It made some remarks about the changing nature of the hotel industry. And then came the crucial point: it was argued that the legislation was essential to ensure the “security” of women. The Court observed:
“The present law ends up victimizing its subject in the name of protection. In that regard the interference prescribed by state for pursuing the ends of protection should be proportionate to the legitimate aims.” (Paragraph 36)
Immediately after this, it cited the ECHR’s provisions on sex equality, thus implying that it was in light of norms such as these that this issue would have to be understood – thus implying that the “romantic paternalism” that Justice Brennan excoriated in Frontiero, that is, the belief that women needed special protection from immoral or corrupting influences, protection that could only be achieved by confining them to close spaces under surveillance and supervision, was no longer a valid constitutional argument.
The Court then further strengthened this idea by expressly endorsing the anti-stereotyping principle. It started by citing Wendy Williams’ famous piece on sex-discrimination in the United States, whose central premise involves interrogating the stated “natural” differences between men and women, and demonstrating how they are often culture-bound (Para 39). In strikingly progressive language, then, the Court observed:
“Therefore, one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for an employment which is otherwise completely innocuous for the male counterpart...” (Para 40)
“It is state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under section 30) from societal conditions would be oppressive on the women and against the privacy rights.” (Para 41)
These two paragraphs are absolutely crucial. Essentially, the Court holds that if there is a clash between “traditional cultural norms” and constitutionally-guaranteed privacy rights – that is, cultural norms that define and delimit the choices of women because of assumptions about their worth or abilities – and privacy rights, that guarantee a zone of autonomy and freedom of choice – then the latter must prevail. More to the point, insofar as governmental policy is based on the aforesaid cultural norms, it is constitutionally invalid. This is, in substance, the Frontiero-VMI doctrine transposed.
The Court drove home the pint by citing Frontiero (Para 42) and Justice Marshall’s dissent in Dothard, in particular, endorsing as “useful advice”, the following observation – which, again, in the Indian context, will resonate:
“In short, the fundamental justification for the decision [of not allowing women to serve as prison guards] is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, ‘the pedestal upon which women have been placed has upon closer inspection, been revealed as a cage.'” (Para 43)
And immediately after that, the Court made its acceptance of the anti-stereotyping principle explicit:
“The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.” (Para 44)
“The Court’s task is to determine whether the measures furthered by the State in form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis.” (Paragraph 49)
Consequently, the Court found that the legislation amounted to “invidious discrimination perpetrating sexual differences” (Para 52), and struck it down.
Anuj Garg is perhaps one of the most progressive judgments to have come out of a Court whose record on sex equality has been patchy, to say the least. It provides a crucial template upon which to build a progressive jurisprudence of sex equality. Under the anti-stereotyping principle, a sex-based classification can no longer be justified on the basis of a blanket assertion of natural differences between men and women. The so-called difference itself will have to be interrogated, to understand whether its roots lie in historically perpetuated stereotypes of gender roles and differences that have become so entrenched, that they now appear natural. And perhaps more importantly, culture and tradition – that, historically, have been invoked to endorse great suppression – cannot constitutionally dictate how freedom of choice, privacy and autonomy are to be understood.
On an Anuj Garg conception, provisions like the marital rape exception, the restitution of conjugal rights, and many others, that lock into place a culturally-determined definition of what it means to be a man and to be a woman, must be tested on the touchstone of constitutional values, and will not be allowed to perpetuate norms that come into conflict with those values. In other words, the “separate sphere” which, historically, has been the justification for great suppression, no longer survives as a valid argument. This is the essence of transformative constitutionalism, which we have discussed before on this blog: through its guarantees of liberal-democratic values of choice, freedom, non-discrimination, autonomy and the rest, the Constitution sought to replace old practices and norms of hierarchy, dominance and suppression that were based on socially or otherwise constructed identities, such as caste, religion, gender etc.
It is to be hoped, therefore, that future Courts understand the deep foundations of Anuj Garg, and take it forward.