In this series of essays, we shall discuss sex discrimination under the Indian Constitution. This is an area where there is a significant amount of case law (for an introductory discussion, see Kalpana Kannabiran’s Tools of Justice). But like other other aspects of our fundamental rights jurisprudence, courts have tended to invoke a multiplicity of competing – and sometimes, conflicting – concepts to decide cases, leading to frequent overlaps, and equally frequent confusions. It would be helpful, therefore, to map the terrain of our subject matter, before we dive into substantive analysis of the cases.
Article 15(1) of the Constitution stipulates that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” The underlined terms highlight the fact that Article 15(1) is susceptible to a multiplicity of interpretations.
A. “Discriminate”: What does it mean to “discriminate”? Intuitively, we may define discrimination as an unjustifiably unequal distribution of benefits or burdens between people or groups of people. Immediately, however, we seem to run into problems. The “separate but equal” theory advanced in the American case of Plessey vs Ferguson, which justified segregation between whites and blacks in the United States for many decades, is now almost universally discredited. We would not think it justified, for example, if the State was to provide separate public facilities on caste or religious lines. In fact, we would suspect that any kind of distribution of public facilities that cleaves along caste lines (barring reservations, which are explicitly permitted by other Articles of the Constitution), is presumptively unconstitutional. On the other hand, we do not (intuitively) feel that separate toilets for men and women, or a separate metro carriage reserved for women, necessarily raise constitutional concerns. It seems, therefore, that for certain “grounds” stipulated in Article 15(1), it is the very fact of classification that is discriminatory, while for other grounds, one might need to demonstrate something more than a mere classification to prove discrimination. The reason for this cannot be material, since the classification precedes the distribution of benefits and burdens. Rather, it seems that reason is expressive: for certain grounds, such as race, or caste, the very fact that you are classifying individuals into those categories, sends out a public message of superiority/inferiority. This is why school segregation in the United States under the “separate but equal” theory was ruled unconstitutional in Brown vs Board of Education, why anti-miscegenation laws were struck down in Loving vs Virginia, and why separate entrances to restaurants for blacks and whites under apartheid South Africa are the subject of such opprobrium.
The distinction is also reflected in American equal protection jurisprudence under the 14th Amendment. For any racial classification, the American Courts apply a standard of “strict scrutiny” which, in practice, means that racial classifications are almost certain to be struck down. For classifications based on sex, on the other hand, the Courts apply “intermediate scrutiny”, i.e., the putatively discriminatory law will be upheld if the State can demonstrate a substantial need, and a reasonable fit between the law and the fulfilling of that need. What this reflects is the understanding that while there are almost no justifiable reasons for classifying individuals on racial lines, such reasons might, on occasion, exist when it comes to classifying individuals along the lines of sex, and the burden of demonstrating this lies upon the entity responsible for the classification.
The opening questions we must therefore keep in mind are:
1. Under Article 15(1), are all classifications “on the grounds of” sex presumptively unconstitutional (unless saved by some other provision, like Article 15(3)?
1(a) If not, what is the basis for holding that certain classifications “on the grounds of sex” are legitimate, and others are not?
When considering (1a), we must also keep in mind that there might be subjective disagreement over the question of whether an impugned law, which admittedly classifies on the basis of sex, unequally allocates benefits and burdens. This issue arises most directly in the cases that involve an intersection of discrimination law and labour law (which we shall discuss), where different schemes applicable to men and women have been endorsed in a settlement by labour unions representing both men and women. Therefore, we must also consider:
1(a)(i): If the basis for an Article 15(1) claim is unjustifiably unequal (whether material or expressive) distribution of benefits and burdens, then is the question of whether a particular distribution is “unequal” objective or subjective? To what extent (if any) should the views of the protected groups matter in a judicial enquiry as to whether the distribution is equal or unequal (i.e., discriminatory).
B. “On grounds“: The phrase “on grounds… of…” could mean two different things, depending upon your interpretation of the word “grounds” (for an extended discussion, see Tarunabh Khaitan, A Theory of Discrimination Law, OUP 2015). First, it could refer to the subjective intention/reasons for action of the discriminator. For instance, a statement such as “what are the grounds of your belief?” would be translated to: on what basis have you come to hold your belief? Here, in the statement “the State shall not discriminate… on grounds… of…“, the word “grounds” qualifies “the State shall not discriminate”.
“Grounds”, however, need not only refer to “reasons for”, but might instead be understood as referring to the personal attributes stipulated in the second part of Article 15(1). Consider again, the statement “what are the grounds for your belief?“, and my response, which lists reasons A, B and C. Now here, “grounds” might refer not to my state of mind or intention, but to A, B, and C themselves. In other words, “the grounds for my belief are A, B, and C.” Under this interpretation of Article 15(1), the word “grounds” refers not to the State’s reasons for action, but to “religion, race, caste, sex or place of birth”. The key difference between the two approaches (and one that will become evident as we discuss the case law), is that the latter frees us from having to search for the root of discrimination in the motivation of the State, and focuses instead upon the protected “grounds” themselves. It might be noted that Indian fundamental rights jurisprudence suggests the correctness of the second approach. In Bennett Coleman vs Union of India, the Court emphasises that in adjudicating a fundamental rights challenge, it would not look for the “object or purpose” of the law, but at its “effect”. Under an Article 15(1) enquiry, the effect test would focus upon the impact that a law has on protected groups, rather than the intent of the lawmakers.
The second question, therefore, is:
2. For a claim under Article 15, must the claimant show an intent/motivation to discriminate on the part of the State?
C. “Only of… any of them”: What does it mean to say that one must not discriminate on grounds “only of” A, B, or C? In a two–part series, Shreya Atrey has argued that the placement of the word “only” after “on grounds” rather than before, suggests that the word “only” is being used in a qualitative sense (as a substitute for “merely”) rather than to stipulate that a claim for discrimination can only be brought on one specific “ground” under Article 15(1) at a time. I will not recapitulate Shreya’s arguments here, but note merely that the consequences in terms of the questions that must be answered.
3. Is a claimant under Article 15(1) required to show that the impugned discriminatory act implicates “only” sex, and nothing else, not even other grounds under Article 15(1)?
3(a). If no, can the Claimant invoke a combination of grounds under Article 15(1)?
3(b). If no, can the Claimant invoke an intersectionality of grounds under Article 15(1)? (“Intersectionality” refers to the unique experiences of discrimination suffered by individuals at the ‘intersection’ of two or more stipulated grounds (e.g., Muslim women), that cannot be reduced to either of the grounds (“Muslims” or “women”).
D. “Sex“: Is pregnancy-based discrimination, discrimination “on grounds of… sex“? Internationally, jurisdictions have been split over issues such as this. The controversy arises when a law is facially neutral with respect to a protected ground (i.e., it does not explicitly classify/distribute benefits or burdens along the lines of that protected ground), but the basis for allocation disproportionately burdens one group over another. In the language of discrimination law, this is the distinction between “direct” and “indirect” discrimination.
4. Does Article 15(1) cover only direct discrimination claims, or does it cover indirect discrimination claims as well?
4(a). If it covers both, then is there any difference between the standards that apply? For instance, in a number of jurisdictions, direct discrimination is illegal, while indirect discrimination allows the discriminator the defence of justification.
4(b) If it covers both, then what is the evidentiary role played by a factual demonstration that the impugned law has a disparate impact upon a protected group? (Under the United States Civil Rights Act, for instance, a showing of disparate impact shifts the burden of proof upon the alleged discriminator, to show why there is a legitimate reason for his actions).
E. “Special provisions”: In addition to Article 15(1), we also have Article 15(3), which states that “nothing in this article shall prevent the State from making any special provision for women and children.” The key question turns upon the meaning of the phrase “special provision“. Are these two words a carte blanche for the State to make any law pertaining to women? This cannot be right, because Article 15(3) is evidently framed as an exception to Article 15(1), and is within the same article. Consequently, it is clear that “special provisions” must relate, in some way, to discrimination, and can only be invoked to justify a departure from Article 15(1) (i.e., to uphold a law that would otherwise fail on the touchstone of Article 15(1)). At the same time, the Supreme Court has also held that Articles 15(4) and 16(4) are not exceptions to the equality scheme under Articles 14-15-16, but facets of the same. Consequently, the following questions arise:
5(a): Is Article 15(3) an exception to Article 15(1)? If not, what is the precise relationship between Articles 15(1) and 15(3)?
5(b): What, precisely, is the burden of justification that the government must discharge if it seeks to justify an otherwise discriminatory law under Article 15(3)?
5(c): Do “special provisions” under Article 15(3) extend to provisions that the State claims are enacted to benefit women, but are objected to by women themselves, as discriminatory/burdensome? How will the Court adjudicate such a claim?
It is crucial to keep this raft of questions conceptually separate when thinking through the cases on sex discrimination. As we shall see, a primary source of the confusion in the case law is because of the courts’ failure to clarify which part of Article 15(1) it is invoking in a particular case, and what, precisely, is the interpretation that is being accorded to it. Admittedly, sometimes there are overlaps – in particular, the question of whether Article 15(1) covers both direct and indirect discrimination can fall within the interpretation of “sex”, or within the interpretation of “grounds”. No conceptual map can be entirely clean, in an area as riven with difficulties as discrimination law. However, keeping the map in mind will help us to signpost issues as they arise, and aid us in our effort at bringing at least a degree of clarity to the existing law.
In the next essay, we will commence our substantive discussion of the case law.