The decisions of the Kerala High Court in Vijayamma (1978) and A.N. Rajamma (1983), sandwich the Supreme Court’s landmark holding in Air India vs Nargesh Mirza (1981). Nonetheless, in this essay, I will break chronology and discuss the two decisions together, and then turn to Nargesh Mirza. This is primarily because many of the discontents of the Nargesh Mirza holding can be better understood in light of the Kerala High Court’s analysis in these two cases.
In Vijayamma, the Kerala Police Department refused to promote women typists to the post of Stenographers, on “public order grounds.” In its counter-affidavit, the Police Department submitted that “due to the peculiar nature of the work of the stenographers of the department (touring along with the officers and working at odd hours) it decided not to appoint ladies as stenographers in the Police Department.” This contention was rejected by the Court. As we discussed in the last essay, however, cases that found an Article 15 violation divide along two different lines: a reasons-based test, which looks at the “additional” reasons behind the classification, and finds that they are indistinguishable from sex; and an effects based test, which simply looks at the impact of the classification. Vijayamma is a significant case because the Kerala High Court clearly accepted the impact test and, what is more, firmly located it within Indian jurisprudence. The Court observed:
“In Punjab Province v. Daulat Singh (A.I.R. 1946 P.C. 66) Lord Thankerton construed these words as : Beaumont, J. holds that in applying the terms of Sub-section (1) of Section 298, it is necessary for the Court to consider the scope and object of the Act which is impugned, so as to determine the ground upon which such Act is based. Their Lordships are able to accept this as the correct test. In their view, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in Section 298(1), but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub-section is to ascertain the reaction of the impugned Act on the personal right conferred by the sub-section, and, while the scope and object of the Act may be of assistance in determining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of such personal right, the object of the Act, however laudable, will not obviate the prohibition of Sub-section (1)... the Supreme Court adopted this construction in State of Bombay v. Bombay Education Societywith reference to Article 29(2) of the Constitution. On behalf of the Court S.R. Das, J., said : “The object or motive attributed by the learned Attorney-General to the impugned order is undoubtedly a laudable one but its validity has to be judged by the method of its operation and its effect on the fundamental right guaranteed by Article 29(2). A similar question of construction arose in the case of -Punjab Province v. Daulat Sing A.I.R. 1946 P.C. 66(J).”
Readers will also recall that the “object and purpose” test to determine the infringement of fundamental rights was accepted by the Supreme Court in Sakal Papers vs Union of India, but subsequently rejected in Bennett Coleman vs Union of India, in favour of the effects test. Admittedly, the context in the newspaper regulation cases was slightly different, and was focused more upon the degree of proximity between the impugned State action and its impact on fundamental rights; however, this much seems to be clear, following Daulat Singh, Bombay Education Society and Bennett Coleman: in adjudicating a fundamental rights violation under Article 15(1), the Court is not supposed to ask the grounds on which the impugned law was framed, but whether its “operation results in a prohibition only on [those] grounds.” As we discussed in previous essays, the effect test is therefore linked with the interpretation of the word “grounds” under Article 15(1) that has it qualify “race, sex, religion” etc., and not “The State shall not discriminate…” It also means that the line of High Court cases which accepted the State’s “sex-plus” argument, are incorrect.
If Vijayamma brought clarity to the issue of the meaning of “grounds” under Article 15(1), A.N. Rajamma is the first case to explicitly identify what we now know as the anti-stereotyping principle. The factual matrix of A.N. Rajamma is highly complex, and need not be delved into in any great detail. Suffice it to say that in effect, once again, “the arduous and special nature” of certain duties were cited to deny women appointments as peons in the Last Grade Service. The opening paragraph of the Court’s judgment is particularly striking, and set the tone for the rest of the opinion:
“The attitude of courts in the United States of America in dealing with the plea of discrimination against women, in the early cases, is often referred to as romantic paternalism. The social thinking and the approach to the question of the role women had to play in society was, even in that country, tradition bound for more than a century after equal rights of woman had been recognised as an inviolable civil right. The marked change in the attitude of courts on the question of gender based discrimination is a post 1970 phenomena in that country. The protectionist policy has now given way to the realization that woman is in every respect entitled to claim equal rights with man. Bradwell v. State of Illinois (1873) 16 Wall 131 to Frontiero v. Richardson (1973) 411 U.S. 677 is a hundred years of interesting case history. Much more tradition bound, as we are in this country, we may perhaps take some time to get out of the hangover of our past to realise that under the Indian Constitution woman has equal rights with man.”
We shall have occasion to study the development of American sex equality law in some detail at a later point in this series, but for now, it suffices to remark that this is an extremely accurate summary of American constitutional law on the point: for a long time, classifications on the basis of sex were allowed on the reasoning that men and women had different roles to play in public and private life (“the separate spheres theory“), and that legislation cognisant of this fundamental difference was valid. The cases cited by the Punjab & Haryana High Court in R.S. Singh, as justifications to deny the woman police officer’s claim to be appointed as a Superintendent in a men’s jail, were from this era (Muller vs Oregon). Starting with Adkins vs Children’s Hospital in 1923, however, and culminating in Frontiero vs Richardson, which the Kerala High Court cited, the American Supreme Court moved to a position where invoking stereotypes about the role of men and women in society could no longer be cited as a justification for classification on the basis of sex. This came to be known as the anti-stereotyping principle.
The Kerala High Court’s invocation of the principle is important, because as we have seen, the State’s sex-plus arguments in all the previous cases were based on stereotypes: of women’s inability to manage property, women’s lack of agency in sexual relationships, the preservation of women’s “modesty”, and women’s incapacity to handle male prisoners. Of course, a pure stereotyping-analysis has its own defects, as Catherine MacKinnon’s critique shows; what is clear, however, is that justifications of sexual classifications on the basis of stereotypes is completely unacceptable, and the Kerala High Court’s decision in Vijayamma is the first explicit acknowledgment of that. The Court then observed:
“If the work of say, a Duffadar, a Cleaner-cum-Conductor, Court Keeper, Chairman, Housekeeper or a Field Worker does not suit a woman or she would feel humiliated by such work it is for her to decide whether she should apply for the concerned job and not for the male dominated legislature or the male dominated bureaucratic machinery which may be functioning as a delegated legislative body to decide whether women should be permitted to do such work or not… It is regrettable that decisions of material consequence said to be in the so called interests of women purporting to protect the position of women are generally taken not after any consultation with representative bodies of women, but unilaterally by the administrators, most of whom carry with them the hang over of the past, the past of male domination in our social set up…”
While this might seem like a trivial point, it is of some significance. Recall that the fundamental legitimating principle of democracy is that of representation. Parliament’s laws enjoy presumptive legitimacy because they are deemed to be the outcome of deliberations in which the society, as a whole, is represented by its lawmakers (through a process of elections). As John Hart Ely famously pointed out in Democracy and Distrust, however, even in a functioning electoral system, many constituencies often go unrepresented. This could be because they are “discrete or insular minorities”, the victims of political prejudice and therefore unable to form political alliances, or simply because a past history of oppression has imposed a significant barrier upon effective political participation. Ely argued that the purpose of fundamental rights was to protect the interests of precisely such constituencies, which could not protect themselves through the political process; and that the interpretation of fundamental rights should take this fact into account. Drawing upon Ely’s argument, the American constitutional scholar Akhil Amar argues, for instance, that laws affecting the interests of women, which were passed before women were given the right to vote, should not enjoy the presumption of legitimacy. While Amar’s focus is on the right to vote as a watershed moment, as we have seen, Ely’s argument goes beyond that, and highlights the fact that the right to vote need not translate into effective political power.
In pointing out that laws ostensibly “in the interests of women” were framed by legislative bodies composed overwhelmingly of men, the Kerala High Court was tapping into this basic insight: that one reason why sex-based classifications need special scrutiny is because women’s participation in the framing of such classifications has been negligible, and for structural reasons. Applying such scrutiny – i.e., not taking the State’s claims of “sex-plus” grounds at face value, the stereotypical bases of such laws will almost invariably become clear.
In Vijayamma and Rajamma, therefore, the Kerala High Court made clear what had been the latent tensions in Indian sex discrimination law thus far. Vijayamma clarified that it was the effect of the law upon the protected “ground” that mattered, and not the “ground” for the law. Rajamma emphasised that stereotypes about the public and private role of mean and women in society could not be invoked as a justification for sex-based classifications. A combination of these two cases, therefore, provides us with a powerful and progressive sex discrimination jurisprudence, true to the original purpose of the Constitution.