(In a two-part series, Anindita Pattanayak explores the issue of same sex schools and the guarantee against gender discrimination under Article 15(1) of the Constitution, and the judicial doctrine and reasoning in this area).
The constitutionality of state supported same sex education has been a contentious issue in the United States. Challenges to it have been brought in American courts on the ground that it violates the Equal Protection Clause of the Fourteenth Amendment. A similar challenge can be raised against denial of admission to women in educational institutions on the basis of sex in India on the ground that it violates Article 15 of the Indian Constitution. To address this issue, some High Courts in India have interpreted the Constitution in several ways, all of which perpetuate gender stereotypes in the country.
There are four cases decided by Indian High Courts that have addressed the issue of constitutionality of state supported all-male educational institutions. The first is Anjali Roy v. State of West Bengal decided by the High Court of Calcutta in 1952. In that case, a girl was denied admission into Hooghly Mohsin College due to an order issued by the Director of Public Instruction against admission of girls into the Boys’ College. The denial was upheld for two reasons. First, the regulation was not intended to be discriminatory to women as eight women were already admitted to the college before the petitioner. Second, the Court reasoned petitioner could enroll herself in the Women’s College and use the library of the Hooghly Mohsin College whenever required.
The next case is University of Madras v. Shantha Bai decided by the High Court of Madras. A regulation framed by the University that women could be admitted to all-male colleges only with the prior sanction of the Syndicate was challenged before the High Court under Article 15. The High Court upheld this regulation on three grounds – first, the University was not “state” as mentioned in Article 12, as it was only state-aided and not state-maintained and therefore, its actions were not subject to rights in Part III of the Constitution; second, the omission of “sex” in Article 29(2) was a deliberate departure from the language in Article in 15(1) and therefore, there is no obligation on educational institutions to admit women (the controversy regarding the application of Article 29(2) will be addressed in the next post in this series); and finally, the University never attempted to discriminate against women and the regulation was framed only to ensure that colleges have adequate facilities and protection before women students are admitted. The first line of reasoning where a distinction was drawn between state-aided and state-maintained institutions has now been overruled.
The third judgment was passed by the High Court of Allahabad in Rama Nath Tewari v. Committee of Management, Allahabad Intermediate College [1993 (21) ALR 85) where Regulation 8(1) of Chapter 7 of the U.P. Intermediate Education Regulations which states “girls shall not be admitted into Boys’ institutions without obtaining prior approval of the Inspector” was challenged as violating Article 14. Markandey Katju J. simply stated that such a provision violated Article 14. Interestingly, he utilized Article 39(f) to hold that co-education is necessary for the healthy development of children and therefore, same sex education is “backward”.
This ratio was affirmed in Christian Inter College v. State of U.P. In that case, girls in a Christian minority institution were not allowed to take Board examinations due to a state regulation which prohibited the admission of girls into a boys’ school without the permission of the District Inspector of Schools. The High Court of Allahabad, however, held that a minority institution had the power to admit or deny admission to either sex without permission of the State under Article 30 of the Constitution.
Now, let us analyse each of these lines of reasoning adopted in these decisions to see whether they can still be used to justify the exclusion of women from all-male educational institutions.
Intention to Discriminate
Indian courts have found it difficult to accept that same sex education is discriminatory to either sex. There is a pervading sentiment that regulations separating the sexes are not meant to discriminate against women as there is no objection to women being educated. In Shantha Bai, the Madras High Court observed that “the Madras University never attempted to exclude women from collegiate courses…In fact there is no regulation refusing admission to women students; those regulations are addressed to the colleges and it is the colleges that refused permissions to admit women when they do not provide sufficient facilities. It is difficult to see how these regulations can be regarded as discriminatory against women.” (para 11)
In the United States, a similar line of reasoning was adopted by federal District Court in Doe v. Vermilion Parish where it held that mandatory single sex classes were not unconstitutional as the school did not intend to discriminate against girls. On appeal, however, the Fifth Circuit held that when there is segregation on the ground of sex, no discriminatory intent needs to be proved. Similarly, no intention of discrimination needs to be proved to establish violation of Article 15. In other words, in certain cases and contexts, discrimination is inherent in the fact of, and by virtue of, segregation.
Further, the argument that the educational institution has admitted other women (like that accepted in Anjali Roy) and is, therefore, not discriminatory, is completely flawed. Article 15 is an individual right and even if any one woman is denied admission on the ground of her sex, her fundamental right is violated and she is entitled to appropriate relief.
Paternalism and Gender Roles
A long line of American cases on the constitutionality of same sex education led to the landmark decision in United States v. Virginia. In that case, an all-male military college following an “adversative method” denied admission to a woman. There was in existence, a parallel course for women at Virginia Women’s Institute for Leadership which, however, followed a “cooperative method”, had fewer facilities and did not have the distinguished alumni VMI could boast of. The American Supreme Court, in effect, extended the strict scrutiny standard to cases of sex segregation in this case. In fact, in his dissent, Justice Scalia noted that such an application of this standard of review would make all state supported same sex education unconstitutional.
The Indian cases on same sex education have been woefully inadequate and unclear about applying a standard of review of state action. However, post 2007, it can be argued that the “strict scrutiny” standard is to be applied in such cases as has been held by the Supreme Court in Anuj Garg v. Hotel Association of India. The Supreme Court, in that case, warns against legislations suffering from “incurable fixations of stereotype morality and conception of sexual role.” Applying this standard of review to the case facts of Shantha Bai and Anjali Roy, it can be argued that the lack of facilities for women and “discipline issues” cannot be cited as a reason to deny them admission into an educational institution. Instead, the specific purpose of a directive to take permission for admitting women students will have to be examined. Finally, if any purpose is specified by the State, the Court will have to assess if the impugned regulation achieves this purpose. If, for instance, the State argues that the purpose of the regulation is to ensure that colleges provide all required facilities for women, it must be taken into account that the effect of the regulation is that colleges will simply not invest in facilities for women and continue denying admission to women.
Judicial reasoning that distinctions made on sex in same sex educational institutions is not made solely on the basis of sex but on additional considerations like the feasibility of separate facilities of women and their protection, stems from a paternalistic understanding of gender roles. It is no more than an extension of “sex” as a ground and is not a separate ground by itself. An example of this sort of concern is displayed by the Madras High Court in Shantha Bai where it mentions, “Co-education has become inevitable and unless that is properly controlled. It might result in evil and not good. It is for this reason that the syndicate requires that colleges which seek permission to admit women students should provide the necessary facilities for them.”
Such statements made on the basis of paternalistic and archaic notions of gender are no longer an adequate justification as is made clear by Anuj Garg. Further, it is seen that the Indian courts deal with a lack of facilities for women in colleges not by directing their institution but by simply denying women admission. For instance, the petitioner in Anjali Roy was expected to shuttle between two colleges to be able to attend the courses of her choice and use the library – an inconvenience no boy was expected to undertake. The effect of the impugned regulations is discriminatory to women and this should be accounted for in judicial reasoning.
Separate but Equal
There is a reigning sentiment among Indian courts that having a separate educational institution for women counters any discrimination they may face by being denied admission to all-male educational institutions. These courts have been confronted with the argument that such reasoning is the same as the “separate but equal” logic used by American Courts to justify racial segregation. However, none of the judgments address this issue directly or explain how their reasoning is different (both in Anjali Roy and Shantha Bai). In fact, Bose J. was directly confronted with the case of Sweatt v. Painter where it was clearly held that instituting a separate educational facility for African Americans would still be a violation of the equal protection clause.
It is evident that the Indian judiciary suffers from a coloured perception of the role of women in society. It is difficult for judges to see the similarity between state supported racism and “differences” between men and women that appear “natural” when in fact they have been evolved through years of patriarchy and societal impositions. Indian courts should note the observations in VMI where it was seen that a separate educational institution can never be truly “equal” and often, separate educational facilities for women are found wanting. Further, as was held in Brown v. Board of Education, despite similar facilities, the act of segregation itself is inherently unequal and creates a feeling of inferiority among those discriminated against. Unfortunately, the Madras High Court in Shantha Bai chose to follow and use the logic of Norris v. Mayor and City Council of Baltimore decided in 1948 where denial of admission to blacks in a private school which received aid from the state but was not maintained by the state, was upheld. Instead, it could have drawn the analogy between race and sex segregation and then followed Brown decided in 1954.
The judicial reasoning employed by the High Courts perpetuates decidedly patriarchal notions of gender and has hampered the understanding of “equality”. All the decisions have steered cleared of any debate as to the need and rationale for same sex education. Anuj Garg has now paved the way for an effective challenge to denial of admission of women into state supported educational institutions, if the matter is brought before the Supreme Court. In the next post, we will discuss the legal complications arising in the case of single sex minority educational institutions which enjoy rights under Article 29 and consequently seem protected from state interference in the matter of admissions.