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In a brief judgment delivered in late October, a division bench of the Bombay High Court rejected a constitutional challenge to Section 56 of the Code of Civil Procedure. Section 56 of the Code states:

“Notwithstanding anything in this part, the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.”

The challenge was on the basis of Articles 14 (equal protection of laws) and 15 (non-discrimination on grounds of, inter alia, sex) of the Constitution. On the Article 14 question, the Court held:

Taking into consideration the object of such provision, the classification between men and women is quite reasonable, and the classification has sufficient nexus with the object.” (paragraph 5)

However, the Court at no point actually spelt out what the object of the provision was. Consequently, assessing the validity of this argument is somewhat difficult. More importantly, the Court then went on to hold:

“That apart, whilst Article 15(1) of the Constitution of India provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, Article 15(3), in terms provides that nothing in Article 15 shall prevent the State from making any special provision for women and children. According to us, Section 56 of the CPC, which makes special provision for women, is clearly a provision relatable to Article 15(3) of the Constitution of India, and therefore, there is no reason to declare the same as unconstitutional.”

I have argued before that the invocation of Article 15(3) as a carte blanche to uphold laws that impose differential benefits and burdens upon men and women, ostensibly to the advantage of women, is unjustified. Article 15(3) is not a stand-alone constitutional provision, but nestled within the Articles 14-15-16 equality scheme. The use of the phrase “nothing in this Article“, as a precursor to Article 15(3) suggests that where a legislative classification might otherwise have fallen foul of the non-discrimination guarantee of Article 15(1), Article 15(3) would save it. However, given that Article 15(3) is itself a part of Article 15 suggests that the goal of such classification must also fit within the concept of equality. For instance, reservations or quotas for women in Parliament, which serve to correct a historical wrong, caused by the structural inequality between the sexes for many generations, can be justified by recourse to Article 15(3) because the differential benefits/burdens are aimed at mitigating the effects of a concrete, historical and institutional inequality.

Consequently, laws making “special provisions” for women (and children) ought to be judicially reviewed for whether or not they bear some connection with remedying the historical and structural subordination of women. With the partial exception of Anuj Garg vs Hotel Association, however, this form of reasoning has been entirely absent from Indian sex discrimination jurisprudence.

The Bombay High Court, in fact, relied upon the 1954 Supreme Court judgment that is the origin of the carte blanche approach to Article 15(3): Yusuf Abdul Aziz vs State of Bombay. In that case, the Supreme Court rejected a constitutional challenge to the adultery provision in the IPC, which is asymmetrical in that women cannot be prosecution for adultery. The Court upheld the law by a simple invocation of Article 15(3), ignoring the fact that the basis of the adultery provision was precisely the kind of stereotypical gender-based assumptions that the Constitution intended to do away with: i.e., that women are passive partners, lacking in sexual autonomy. This inattention to how Article 15(3) ought not end up becoming a shield to perpetuate sexual and gender-role based stereotypes has plagued the Court’s jurisprudence ever since.

An fascinating example of the rich and nuanced arguments that arise in cases of this kind is exemplified by the judgment of the South African Constitutional Court in President vs Hugo. In that case, Nelson Mandela granted a Presidential pardon to “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years.” This was challenged on the basis that the refusal to extend a like pardon to fathers with minor children under the age of twelve years was sex-discriminatory, and based upon stereotypical assumptions that it was women’s primary responsibility to bring up children. By a majority, the Constitutional Court rejected the challenge. What is of particular interest is the debate between O’Regan J (concurring) and Kriegler J (dissenting). Both judges agreed that the affirmative action provisions of the South African Constitution could be invoked only where the ostensibly discriminatory legislation or executive act bore some connection with remedying a historical or current structural inequality; where they disagreed was the extent of fit that was required between the challenged provision or act, and the remedial goal. While O’Regan J. would grant the State a degree of leeway, Kriegler J. insisted on a tighter fit, and was suspicious of legislation or executive actions that relied upon stereotypes in order to achieve substantive equality.

The Bombay High Court’s judgment, unfortunately, represents a missed opportunity to break free of the carte blanche approach to Article 15(3), and to take steps towards a principled, equality-based interpretation of that provision.