Jural values running riot: The strange case of Ambika Prasad Mishra vs State of UP

Previously on this blog, we have extensively discussed sex equality under Articles 14 and 15 of the Constitution. Today, while reading Flavia Agnes’ book, Law and Gender Inequality, my curiosity was piqued by reference to the case of Ambika Prasad Mishra vs State of UP. This is a 1980 judgment of a Constitution Bench upholding the constitutional validity of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. The Act was part of the series of land reform legislations that had been undertaken in the years after Independence and which, of course, had been the site of many memorable battles between Parliament and the Courts, culminating in the basic structure doctrine of Kesavananda Bharati. The UP Act, which – like many others – imposed a ceiling upon permissible land holdings  with a view to breaking up ownership over large tracks of land (with a further view to redistribution) – was challenged on multiple grounds, all of which the Court rejected. Here, I want to focus on one: the challenge under Articles 14 and 15(1) of the Constitution, on the basis of sex discrimination.

There were two provisions of the Act that were challenged as being discriminatory. The first was Section 5(3), which stipulated that:

“Sec. 5(3): Subject to the provisions of sub-sections (4), (5), (6) and (7) the ceiling area for purposes of sub- section (1) shall be

(a) In the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of his adult sons, who are either not them selves tenure holders or who hold less than two hectares of irrigated land, subject to a maximum of six hectares of such additional land;”

The second was Section 3(17), part of the definitional clause, which stipulated that:

“… ‘tenure holder’ means a person who is the holder of a holding but [except in Chapter III] does not include —

(a) a woman whose husband is a tenure-holder.”

With respect to the first provision, the discrimination lay in that a son’s land holding, upto two acres, was counted as part of the overall ceiling limit, whereas a daughter’s was not. Thus, the Act facially discriminated between men and women. It was also discriminatory in effect, since – as the lawyer for the Petitioner pointed out – it severely disincentivised unmarried women from holding land.

How did the Court manage to uphold a law as blatantly discriminatory as this? The judgment of the Court was written by Justice Krishna Iyer (possibly one of the most lionised judges in the history of the Court), and for the most part, is extremely difficult to follow. On the subject of sex discrimination, the learned Judge had this to say:

“We wonder whether the Commission on the Status of Women or the Central Governments or the State Governments have considered this aspect of sex discrimination in most land reforms laws, but undoubtedly the State should be fair especially to the weaker sex. Adult damsels should not be left in distress by progressive legislations geared to land reforms. This criticism may have bearing on the ethos of the community and the attitude of the legislators, but we are concerned with the constitutionality of the provision. Maybe, in this age of nuclear families and sex equal human rights it is illiberal and contrary to the zeit geist to hark back to history’s dark pages nostalgically and disguise it as the Indian way of life with a view to deprive women of their undeniable half. Arts. 14 and 15 and the humane spirit of the Preamble rebel against the de facto denial of proprietary personhood of woman-hood. But this legal sentiment and jural value must not run riot and destroy provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life’s realism is legislatively pragmatised. Such a scheme may marginally affect gender justice but does not abridge, even a wee-bit, the rights of women.”

I must confess, the meaning of this passage escapes me entirely, despite multiple readings. How do “legal sentiments” and “jural value” (?) “run riot”? How does the fact that a law “organises a scheme where life’s realism is legislatively pragmatised” affect its constitutional validity? How can the same sentence acknowledge that a law may (marginally) “affect gender justice“, but at the same time not “abridge, even a wee-bit, the rights of women” (isn’t “marginal” and “wee-bit” pretty much the same thing? And even if it does, do constitutional violations admit of degrees? Is a marginal constitutional violation acceptable, but a gross one not?)

Some insight into the learned Judge’s thinking may be gleaned from what comes after:

“If land-holding and ceiling thereon are organised with the paramount purpose of maximising surpluses without maiming woman’s ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable. No woman s property is taken away any more than a man’s property.”

The problem with this reasoning is that Article 15 does not state that “The State shall not discriminate on grounds of sex with regard to ownership of property”. It only states that “The State shall not discriminate on grounds of sex”, period. In certain constitutions, such as the ECHR, an equality claim must be brought alongside a claim of a substantive rights violation. The Indian Constitution is not of that mould – it prohibits unequal or discriminatory treatment simpliciter. The fact, therefore, that the UP Act did not take away the property of women was not sufficient to save it from unconstitutionality. It treated women unequally, and that should have been enough.

While the above point is at least arguable, Section 3(17), which excluded women from the definition of “tenure holder” altogether (and, as Flavia Agnes correctly points out, embodied the worst of the medieval European fictions where the legal personality of women was subsumed within their husbands) seemed even more blatantly unconstitutional. And in examining it, the learned Judge grew even more opaque:

“The husband being treated as tenure-holder even when the wife is the owner is a legislative device for simplifying procedural dealings. When all is said and done, married woman in our villages do need their husband’s services and speak through them in public places, except, hopefully in the secret ballot expressing their independent political choice. Some of us may not be happy with the masculine flavour of this law but it is difficult to hold that rights of women are unequally treated, and so, the war for equal gender status has to be waged elsewhere. Ideologically speaking, the legal system, true to the spirit of the Preamble and Art. 14, must entitle the Indian women to be equal in dignity, property and personality, with man. It is wrong if the land reforms law denudes woman of her property. If such be the provision, it may be unconstitutional because we cannot expect that “home is the girl’s prison and the woman’s work-house” But it is not. It must be said in fairness, that- the legislature must act on hard realities, not on glittering ideals which fail to work. Nor can large landholders be allowed to outwit socially imperative land distribution by putting female discrimination as a mask.”

There seem to be four possible reasons here for upholding the law. First, that it is “for simplifying procedural dealings”. Secondly, that “married women… need their husband’s services.” Thirdly, that “the war for equal gender status has to be waged elsewhere”. And fourthly, that “the legislature must act on hard realities.” It needs hardly to be stated that none of these are constitutional reasons. It also seems clear that the use of multi-syllabled words to avoid the necessity of providing cogent legal reasoning is not a recent development in Indian Constitutional law.

Reading this judgment reminded me of two other cases. One is State of UP vs Lalai Singh Yadav, where the same Justice Krishna Iyer insisted on a “pragmatic approach” to free speech, and warned that whoever by “books or bombs” sought to disturb public tranquility would be met by the interdict of the State. The second is State of Bihar vs Madhu Kishwar, where the Court once again deployed “pragmatic” reasoning to refuse to strike down a law despite returning a finding of gender inequality. Over the years, we have come to think of the Supreme Court as an “activist Court”. Perhaps it is time for a more honest re-assessment: “activist on most things, pragmatic on civil rights,”