In the previous essay, we outlined the key questions that arise out of a textual reading of Article 15(1) of the Constitution, which prohibits discrimination “on grounds only of… sex.” In some of earliest cases after the commencement of the Constitution, these battle-lines were drawn sharply by the courts. As early as 1951, the Calcutta High Court was called upon to decide a claim of sex discrimination, in Mahadeb Jiew vs B.B. Sen. Under O. XXV, R. 1 of the Code of Civil Procedure (as it then stood), the conditions under which a plaintiff could be required to pay security for costs, were outlined. Security for costs could be taken from mail plaintiffs if they were residing outside India and did not possess sufficient immovable property in India. On the other hand, female plaintiffs could be made liable for security if they did not possess sufficient immovable property, regardless of whether or not they were residing in India. In other words, the law drew a distinction between resident male plaintiffs who did not have sufficient immovable property, and resident female plaintiffs who did not have sufficient immovable property.
The High Court rejected the claim. It held that the discrimination was not on grounds only of sex, but on grounds of sex and property. While acknowledging that the law treated a propertyless resident male plaintiff different from a propertyless resident female plaintiff, the Court noted that “not all discriminations on the ground of sex are within the bar provided by Article 15 of the Constitution but only those discriminations on the ground of sex alone & on no other grounds.” (paragraph 36)
The Court’s interpretation of Article 15(1), therefore, was to understand “only” as meaning “one and no other.” As we discussed in the previous essay, the placement of the word “only” after “on grounds” and not before, suggests that this is an incorrect interpretation. It also allows the State to do an end run around the guarantee, simply by introducing an additional “ground” in a discriminatory law. For instance, a law that prohibits all women who are less than eight feet tall from certain kinds of employment would, on the Calcutta High Court’s reasoning, be constitutionally valid, since it was based on sex and height. Of course, the set of women above eight feet tall would (presumably) be an empty set, thereby ensuring that no woman remained eligible for employment. Such an interpretation, which would defeat the framers’ purpose in having Article 15(1) in the first place, ought not to have been preferred to another, equally valid interpretation.
Also missing from the Court’s analysis was a deeper enquiry into the basis of the distinction. Why could propertyless resident men not be required to furnish security for costs, but propertyless resident women could be? The answer, of course, lies in assumptions, or stereotypes, about women’s financial acumen, capacity to earn, or ability to furnish payment on demand. The word “stereotypes” is important here, since the distinction is drawn along the lines of sex, and so includes within its ambit all women, regardless of their individual characteristics. What the Court failed to consider, therefore, was whether a distribution of benefits and burdens located within stereotypes about sex, was constitutionally valid.
The question of stereotypes was even more relevant – and was again ignored – three years later by the Supreme Court, in Yusuf Abdul Aziz vs State of Bombay. The constitutionality of Section 497 of the Indian Penal Code, which criminalised adultery, was challenged. Under S. 497, the offence of adultery could not, by definition, be committed by a woman – i.e., in an extra-marital relationship, only the man was guilty of the offence. In a remarkably short judgment, the Court upheld the S. 497 on the grounds of Article 15(3), which authorised the State to “make any special provisions for women“, notwithstanding Article 15(1). The Court made no attempt to analyse the scope of 15(3) vis-a-vis 15(1), summarily dismissing a contention to the contrary in the following words: “It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause.” (along similar lines was the Madhya Pradesh High Court’s decision in Girdhar Gopal vs State, where the constitutionality of S. 354 of the IPC (“outraging the modesty of woman”) was upheld on the grounds of “propriety, public morals, decency, decorum and rectitude.”)
The Court’s blanket statement about Article 15(3) is unsatisfactory. If 15(3) allows any provision that singles out women, then the prohibition upon sex discrimination under Article 15(1) becomes utterly redundant – it might as well be written as “The State shall not accord favourable treatment to men”, dispensing with the need for Article 15(3) altogether. More importantly, however, S. 497, however, is not simply about allowing women a license to commit or abet crimes. Much like the impugned provision of the CPC in Mahadeb Jiew, it is based upon gendered stereotypes: in this case, the stereotype that when it comes to sexual relations, women are passive and devoid of agency, unable to take responsibility for their actions. Consequently, even though S. 497 ostensible “benefits” women in material terms, by prohibiting punishment for adultery, the said benefit itself is grounded in a certain paternalistic world-view that considers women to be inferior to men, by depriving them of autonomy and agency. The structure of Article 15(1) and (3) suggests that the purpose of 15(3) is to emancipate women through corrective or remedial measures. It is therefore questionable whether a legal provision that endorses the same sets of attitudes that have been responsible for women’s subordination through the years, can fall within the “special provisions” clause of Article 15(3). In any event, at the very least, the matter required serious analysis, which the Supreme Court failed to provide.
That same year, however, the Allahabad High Court employed very different reasoning. In Rani Raj Rajeshwari Devi vs State of UP, the UP Courts of Wards Act allowed the local government to declare persons incapable of managing their property under specific conditions, which included physical/mental “defects”, conviction of non-bailable offences, failure to discharge debts etc. The same section of the Act, however, also allowed the government to declare any woman incapable of managing her property, without any guidelines. Before the Court, along the lines of Mahadeb Jiew, it was argued that the distinction was not based only on sex, but on sex along with management of property; and along the lines of Yusuf Abdul Aziz, it was argued that the provision was a “benign” one, designed to help women from having their property preyed upon. Unlike the previous two cases, however, the Allahabad High Court negatived both contentions. On the first question, the Court held that the classification was based solely on sex, since it treated identically placed men and women differently. And on the question of whether or not the legislation was saved because it was a “reasonable classification” (the government specifically made the stereotype-based argument that “women generally are not such competent managers of property as men and are much more liable to be led astray and, therefore, for the purposes of management of property, they may legitimately be put in a class by themselves“), the Court held that “evasion of the Constitution can be permitted merely by calling an act classification and not discrimination… A classification which the Constitution forbids cannot possibly be said to be reasonable.”
This observation is crucial, because the Court essentially rejected the contention that an inequitable distribution of benefits and burdens along the lines of sex could be justified on the grounds that it tracked some anterior difference between men and women, and was therefore reasonable. In other words, the Court effectively adopted a strict scrutiny standard, holding that unconstitutionality lay in the act of classifying along the lines of sex when distributing benefits or burdens.
The nascent analysis in Rani Raj Rajeshwari Devi was followed by the Orissa High Court in 1969, in Radha Charan Patnaik vs State of Orissa. Rule 6(2) of the Orissa Civil Service Rules stated that “no married woman shall be entitled as of right to be appointed to the Service and where a woman appointed to the service subsequently marries, the State Government may, if the maintenance of the efficiency of the service so requires, call upon her to resign.” The reasoning for this was provided in the separate Indian Administrative Rules, which stated that “marriage brings about certain disabilities and obligations which may affect the efficiency or suitability for employment.” Once again, it was argued that the discrimination was not on grounds only of sex, but – in this case – on grounds of sex and marriage. It was argued that the reference to efficiency made it clear that this was “a classification having a reasonable nexus in relation to the object to be achieved, namely the maintenance of the efficiency of the service.” Employing reasoning very similar to that of the Allahabad High Court, the Orissa High Court held that “marriage does not operate as a disqualification for appointment as a District Judge in the case of men, whereas in the case of married women, by Rule 6 (2) they are being excluded from appointment. Such a disqualification being thus based on sex is unconstitutional.”
In both cases, therefore, the State justified its discriminatory policy by arguing that its grounds for discrimination did not lie only in sex, but in something else as well; on deeper investigation, it was revealed that this “something else” was nothing more than stereotypical assumptions about the abilities or capacities of women, and therefore hardly independent of sex. And in both cases, the Courts found the State action unconstitutional (although they did not investigate the stereotypes in any great detail). On the contrary, in Mahadeb Jiew, the Court accepted the contention that classification on the basis of “sex-plus” (where “plus” was a stereotype) escaped the prohibition of Article 15(1), and in Yusuf, the Court held that a similar classification was saved by Article 15(3) as a special provisions for women. These early cases, therefore, reflect two conflicting judicial positions on the interpretation of the non-discrimination scheme under Articles 15(1) and (3). And as we shall see in subsequent essays, the conflict would go on to become even entrenched over time.