Sex Discrimination and the Constitution – III: Real and Imagined Differences

On April 12, 1949, the Governor of East Punjab passed an order directing that in the Jails Deparment, women would be ineligible for appointment to all posts in Men’s jails, apart from that of clerk or matron. In 1972, this order was challenged before the Punjab & Haryana High Court by a women who was not appointed as superintendent of a men’s jail (R.S. Singh vs State of Punjab). Following decisions such as Mahadeb Jiew and Girdhar Gopal, which we discussed in the previous essay, the Court upheld the constitutionality of the order. For the first time, however, the Court did not base its decision simply on the assertion that the classification was on the basis of “sex-plus”, but actually went into the nature of what the “plus” really was. It noted:

“That there are patent physical disparities between the two sexes is so obvious that it would be platitudinous to advert to them in detail. It suffices to refer to the classic observations of Mr. Justice Brewer speaking for the United States Supreme Court in Curt Muller v. State of Oregon, (1907) 208 US 412 :– “The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her.” And earlier the learned Judge had remarked- “That women’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her.” (paragraph 9)

It must be noted that Muller vs Oregon was overruled in 1932 by Adkins vs Children’s Hospital, a fact which does not seem to have been brought to the attention of the learned judge. In any event, he then observed:

“It is evident from the above said authorities that sex is a sound classification and legislation which along with other factors takes the same into consideration would be immune from constitutional challenge.” (Paragraph 13)

This sentence, however, runs together two very different lines of Article 15 reasoning. The argument that legislation which is based on factors other than sex does not fall within Article 15 because of the presence of the word “only” is the argument that we have seen made in the judgments so far, and that is contained in the second part of the sentence: “… legislation which along with other factors…” However, the first art of the sentence – “It is evident… that sex is a sound classification…” implies that in certain cases, it is reasonable to draw a line solely on the basis of sex. But this argument, as we saw in the previous essay, was expressly rejected by the Orissa High Court, which applied a strict-scrutiny standard to all sex-based classifications, holding them discriminatory per se. Here, the Court speaks against that logic, seemingly unaware that it is adopting two contrary understandings of Article 15(1) within the same sentence.

Let us, however, flesh out the second argument a little more. The line “there are patent physical disparities between the two sexes…” gives us a clue. Legislation that classifies on the basis of sex is “sound” if it somehow tracks “actual” differences between the sexes. The second part of the quote – from Muller – suggests what those actual differences may be: the “structure of the body”, the “functions performed by each”, the “amount of physical strength”, “the influence of vigorous health upon the future well-being of the race“, “self-reliance”, and the “performance of maternal functions”. If the foundation of a sex-based classification is one or more of these factors, the argument goes, it cannot be called “discrimination” under Article 15. The Court then went on to make its point even more specifically, observing that:

“It needs no great imagination to visualise the awkward and even the hazardous position of a woman acting as a warder or other jail official who has to personally ensure and maintain discipline over habitual male criminals. Necessarily the inmates of these jails have a majority of hardened and ribald criminals guilty of heinous crimes of violence and sex. The duties of the Superintendent and his subordinate officials and warders involve a direct and continuous contact with these inmates. The difficulties which even male Warders and other jail officials experience in handling this motley and even dangerous assemblage are too clear to need elaboration. A woman performing these duties in a men’s jail would be even in a more hazardous predicament.”

Commenting upon a similar decision of the American Supreme Court, Catherine MacKinnon trenchantly observed that the Court took the viewpoint of the reasonable hardened criminal in deciding to uphold an unequal, sex-based classification. MacKinnon’s observation directly challenges the interpretation of sex discrimination law that upholds classifications as long as they are deemed to track some “actual” or “real” difference between the sexes. While, as a matter of brute fact, differences undeniably exist (e.g., only women can become pregnant), these differences become salient only when a certain social meaning is attached to them (or, as MacKinnon explains, it is not that inequality tracks an original, actual difference, but it is difference that flows out of an initial, constructed inequality). Another way of putting the point, in language used by theorists such as Alan Norrie (and Cass Sunstein), is that the evaluative baseline, or norm, is centred upon one perspective (in this case, the male perspective), differences from which become justifiable grounds for unequal distribution of benefits or burdens. For instance, workplace or employment rules, which mandate being present for work a certain number of days a year, take as their normative baseline the male worker, who cannot get pregnant. These rules, which end up excluding potential female employees, are nonetheless not understood to be discriminatory, since pregnancy is an “actual” difference between men and women.

Towards the end of its judgement, the Punjab & Haryana High Court rhetorically observed that “in exclusively women’s educational institutions, the State may well consider to employ woman teachers and employees only to the exclusion of men as in fact has been done in many institutions.” Rhetoric tends to become reality, because this, precisely, was the issue before the Delhi High Court in Walter Alfred Baid vs Union of India, decided in 1976. According to the Recruitment Rules of the Irwing Hospital, only women could be appointed as senior nursing tutors. It was argued, yet again, that the distinction was not made based on sex alone, but on the respective suitability of male and female candidates for the job. Rejecting the contention, the Court held:

“… it is difficult to accept the position that a discrimination based on sex is nevertheless not a discrimination based on sex “alone” because it is based on “other considerations” even though these other considerations have their genesis in the sex itself… It virtually amounts to saying that woman was being discriminated against by the impugned provision in the case before the High Court not because she belonged to a particular sex but because of what the sex implied. It is difficult to understand the logic that where women are considered ineligible for appointment to a post because it is an area where even a daring man dare not tread and women on that account, would be preeminently unsuitable to hold such a post, it is nevertheless not a discrimination grounded on sex alone. If a person is considered ineligible for a post, whether a male or a female because such a person is too cowardly or too much of a weakling, whether of body or mind, or is of such a frail constitution that there is something in his or her background which makes him or her eminently unsuitable for a particular type of work, it would be within the area of permissible discrimination but where it is stated that, having regard to the physical disparity between the two sexes or the inherent characteristics or susceptibilities of one or the other of the sexes, all members of that or the other sex are ineligible for a particular position, on what else is such discrimination or disability based, if not sex alone ? While it is true that there are patent physical disparities between the two sexes, yet it is not possible to justify a conclusion by any process of reasoning, without impinging on the guarantee against discrimination on the ground of sex, that all women or all men, as the case may be, would be unfit or, to put it differently, no man or woman, as the case may be, would be suitable for a particular class of work.”

The key insight of the Delhi High Court, therefore, was that when a differentiation is drawn along the lines of sex, and is then justified on “sex and other grounds”, then it is impossible to separate those other grounds from sex itself. In Mahadeb Jiew, the “other ground” was the lack of women’s financial acumen; in Yusuf Abdul Aziz, it was the absence of women’s sexual agency; in Walter Alfred Baid, it was the inability of men to excel at nursing; in all those cases, as is obvious, the additional grounds were located within a particular understanding of sex, or the role of the sexes in public and private life. This made the discrimination indistinguishable from being on “grounds only… of sex.” The Court then used the categorical language of Article 15 to impose a standard of strict scrutiny, differentiating between an Article 14 enquiry, where a sex-based classification could be saved on grounds of intelligible differentia and rational nexus, and an Article 15 enquiry, where any such classification would be defeated at the threshold stage. In other words, according to the Court, Article 15 does not allow the State to associate certain characteristics (financial incapacity, sexual autonomy etc.) with entire groups constituted by sex, race, religion etc. The thinking – as we’ve discussed before – rests upon the belief that under the Constitution, an unequal distribution of benefits and burdens flowing prejudices or stereotypes (because generalisations about an entire class are invariably stereotypical), are entirely impermissible.

The Court also rejected an Article 15(3) contention, holding that since what was at stake was public employment, the absolute bar on non-discrimination contained in Article 16(2) would override Article 15(3). The Court’s decision to consider Articles 14, 15 and 16 as separate categories, and not as a single, harmonious code (as would be done in subsequent cases), is somewhat disappointing; especially since, in Shamsher Singh’s Case, the Punjab & Haryana High Court had already held that under Article 15(3), “only such special provisions could be made in favor of women which were reasonable and “do not altogether obliterate or render illusory the constitutional guarantee enshrined in Article 16(2)”.

The approach of the Punjab and Delhi courts reflect, once again, a divergent approach to understanding the Article 15(1) guarantee. In the previous essay, we had seen that the Allahabad High Court and the Orissa High Court had rejected “sex plus” arguments on the ground that a plain reading of the impugned rules showed that men and women placed in exactly the same position, were treated differently. The Delhi High Court took this interpretation one level deeper, observing that the additional grounds put forward could not themselves be distinguished from sex. And in the next essay, we shall examine two judgments of the Kerala High Court, that extended the analysis even further.

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Filed under Equality, Non-discrimination, Sex Discrimination, Sex Equality

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