Sex Discrimination and the Constitution – XI: The Justification of the Anti-Stereotyping Principle

We have seen that in Anuj Garg, the Supreme Court adopted the anti-stereotyping principle: sex-based classifications could not be saved under Article 15(1) if their only justification was to invoke stereotypes about women’s sexual or social roles in the community. What, however, is the basis of this principle? Since the Supreme Court borrowed it from American jurisprudence, we must take a brief detour, and examine the history of constitutional sex discrimination claims in the United States. That history throws up a surprising link: between sex equality, and the right to vote.

Until 1919, women in the United States did not have the right to vote. The denial of this right was justified – among other things – on a theory of virtual representation: that the interests of women were represented (before marriage) by their fathers and (after marriage) their sons, so there was no need for a separate vote. The idea of virtual representation was not restricted to the sphere of voting, but extended to an entire legal regime known as coverture: through which men disposed off property, entered into contracts and engaged in commercial relations on behalf of their wives or daughters. The social philosophy underlying the law of coverture is now called “the separate spheres” theory: i.e., it holds that men and women belong to naturally-ordained separate spheres – the public sphere for men, and the private sphere for women. To perform the functions required of one’s sphere is a natural obligation, and the two spheres are exclusive and non-overlapping.

The denial of the right to vote, therefore, rested upon the legal framework of coverture, which, in turn, was justified by the social theory of the separate spheres. So when the women’s suffrage movement in the United States’ concretely demanded the right to vote, it was not simply asking for access to the ballot box, but challenging the legal regime of coverture and the philosophy of the separate sphere itself. This is evident from the 1848 Seneca Falls Declaration, widely believed to herald the start of the suffrage movement. The Declaration accused man of “claiming it as his right to assign for [woman] a sphere of action, when that belongs to her conscience“, and attempting to “destroy her confidence in her own powers, to lessen herself-respect, and to make her willing to lead a dependent and abject life.” The twin ideas of dependency and an imposed restriction of social roles formed the heart of the claim for suffrage. This was understood by opponents of the movement as well, who linked the right to vote and the transformation of the separate spheres, askingif our ladies will insist on voting and legislating, where, gentlemen, will be our dinners and our elbows? where our domestic firesides and the holes in our stockings?” The American legal scholar, Reva Siegel, argues therefore that “the arguments of suffragists and their opponents tied the idea of women voting to the prospect of women’s emancipation from traditional roles in marriage and the market. Once the question of woman suffrage was infused with this social meaning – once the question of woman suffrage was known simply as the “woman question” – the nation’s debate about whether women should vote turned into a referendum on a whole range of gendered institutions and practices.”

Of course, between 1848 and 1919, the suffrage movement developed multiple currents, not all of which were in harmony. Around the turn of the century, for instance, another strand of the movement began to invoke the separate sphere to justify the claim for suffrage, arguing that because of women’s unique knowledge about issues related to welfare, the bringing up of children, sanitation and hygiene etc., they ought to be allowed the power of the ballot box in shaping policy. A decade later, yet another strand raised the spectre of the recently-enfranchised African-American community overwhelming the Whites at the polls, and asked for the vote to counteract this threat (See Alieen Kraditor, The Ideas of the Woman Suffrage Movement). As is the case with al social movements, it is impossible to tell which strand had the greatest contribution towards ultimate constitutional success. However, what is important to note is that the 19th Amendment, which granted the women the vote, was framed as a right. Neither the second, nor the third arguments for the vote, that we have outlined above, were framed in the language of constitutional principles or rights. It was only the first, and original suffragist argument against the theory of the separate spheres, that was framed in the vocabulary of rights. Consequently, whatever the intentions of the drafters of the Nineteenth Amendment, its very language reflects the constitutional acceptance of the anti-separate spheres movement. More importantly, this is how the Courts understood it – at least initially. In 1923, in Adkins vs Children’s Hospital, the Supreme Court struck down differential working hours of men and women. In so doing, it overruled the pre-Nineteenth Amendment case of Muller vs Oregon (which some of our courts have relied upon), noting that “… the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued ‘with diminishing intensity.’ In view of the… revolutionary changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment… these differences have now come almost, if not quite, to the vanishing point.” Fifty years later, in Frontiero vs Richardson, the judgment which kickstarted the modern American law of sex discrimination, Justice Brennan referred to “traditional belief that the “paramount destiny and mission of women are to fulfill the noble and divine offices of wife and mother”, before stating:

“As a result of notions such as these, our statute books gradually became laden with gross, stereotypical distinctions between the sexes and, indeed, throughout much of the 19th century the position of women was, in many respects, comparable to that of blacks under the pre-Civil War slave codes.”

Justice Brennan’s opinion makes the link between the anti-stereotyping principle and the separate spheres theory. The transformative moment that changed separate-sphere based stereotypes from accepted classificatory tools to unconstitutional, discriminatory ones, was the Nineteenth Amendment, which repudiated virtual representation and its underlying justifications by affirming the right of women to vote.

It is, of course, dangerous to draw connections between jurisdictions in too facile a manner. Two things ought to be noted, however. The first is that the link between the right to vote and the repudiation of separate spheres is a conceptual link, and not jurisdiction-specific. And the second is that a brief look at our pre-Constitutional history reveals some striking similarities. Scholars like Partha Chatterjee and Tanika Sarkar have demonstrated that the public/private divide in the form of ghar/bahir (although in a subtly different form) arose in India towards the end of the nineteenth century, with British efforts at social reform resisted on the grounds of interference with the “inner domain” of community life, which was often represented by the figure of the woman. Chatterjee notes, for instance:

“The world is [deemed to be] a treacherous terrain of the pursuit of material interests, where practical interests reign supreme. It is also typically the domain of the male. The home in its essence must remain unaffected by the profane activities of the material world – and woman is its representation. And so one gets an identification of social roles by gender to correspond with the separation of social space into ghar and bahir.”

This, as we can see, closely corresponds to the separate spheres theory (again, one must be careful of too much reductiveness in comparisons – for the purposes of this argument, however, a rough analogy will suffice). The separate spheres theory spilt over powerfully into the nascent demand for self-representation during the 1920s and 1930s phase of the freedom movement. Initially, during the first opening up of suffrage by the colonial government, separate electorates were proposed for women. As Wendy Singers points out, these “characterized a candidate as a stand-in for her constituency. In other words, separate electorates for women made manifest the idea of a women’s constituency that represented women’s issues and was embodied by the candidate.” (See Singers, A Constituency Suitable for Ladies 25) This was strongly resisted by the All India Women’s Conference (AIWC) and other organisations; on the other hand, as Gerladine Forbes points out, the proposition that only women could represent the interests of the “home” was endorsed by leading figures such as Sarojini Naidu, who urged “women to utilize their housekeeping skills to put the ‘national house’ in order.” This was also reflected – as Forbes notes – in initial demands to restrict suffrage to educated women, who were better placed to advocate social reform. The fact that suffrage was being demanded on two very different grounds, which were based on two incompatible visions of society, was clearly understood by the representatives of the women’s movement during the Second Round Table Conference. Mrinalini Sinha notes that “the representatives speaking on behalf of the Indian women’s movement had insisted that women were neither a “minority” nor a “special interest”, but an integral part of the people… Hence they demanded only universal adult suffrage and a declaration of fundamental rights in the new constitution that removed sex, along with caste, class and religion, as the grounds for any political disqualification.” (Mrinalini Sinha, Spectres of Mother India 223) Here, for the first time, we see the implicit connection between the right to vote, separate electorates, separate spheres, and equality and non-discrimination, being made explicit.

This is, admittedly, a sketchy history; what is worth pointing out, however, is that the Indian Constitution rejected both separate electorates for women and educational qualifications for suffrage. The intentions behind the framers’ decisions are complex, but what matters is that the text of the Constitution merely speaks about adult suffrage. This, in turn, would suggest – based upon our previous arguments – a rejection of the separate spheres theory, much along the lines of the Nineteenth Amendment in the United States.

The anti-stereotyping principle, therefore, is grounded in the transformative nature of the Constitution, which – in simultaneously guaranteeing women the unconditional right to vote along with a guarantee of non-discrimination, rejected separate spheres (and therefore, stereotypes) as justifications for sex-based classifications. Consequently, the line of High Court cases culminating in Anuj Garg was correctly decided, and should be followed in the future. Of course, as Reva Siegel points out, “anti-stereotyping” is an empty phrase without more; to decide whether or not classifications are based on stereotypes needs detailed historical enquiry, tracing the roots of the classifications and their evolution over time. It is an enquiry that the Court is yet to seriously embark upon, but Anuj Garg has, at least, laid the foundation for the future.

(A more detailed version of my argument drawing a link between sex equality, anti-stereotyping, and the right to vote, is available here)

 

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Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Sex Equality

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