The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence

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.

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8 Comments

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

8 responses to “The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence

  1. First time I’m reading one of your pieces on discrimination/equality – I’ve missed the previous ones (and am reading them now), but doesn’t Section 56 exist in light of the whole karta system in India? Isn’t that the object of Section 56 – that the male head of the family has to discharge debt/etc?

    Minus the patriarchy, would this be a fair statement to make?

  2. In my view, the entire concept of imprisoning a judgment debtor in the first place is unjust and an old-fashioned way of dealing with such a situation. I think Section 55 CPC itself needs review. The purpose of the law, i.e., to realize a debt owed can be achieved in other more effective ways that do not involve deprivation of personal liberty. Section 60 already provides for attachment and sale of property to realize the debt.

    I am also certain that empirical research will establish that it is almost always the poor who get jailed under Section 55. Section 55 contemplates arresting a judgment debtor who can then apply for insolvency to secure his release. How will a poor man in jail who has no money to satisfy a decree ever be able to afford/ organize a lawyer to be declared insolvent.

    Also look at Sec 58. A man who owes Rs 501 can be jailed for six weeks, A man who owes Rs 1001 can be jailed for 3 months. Surely this law is archaic and not appropriate for the present times.

    Going by this, Subrat Roy has served more time n prison than the maximum three months he could have been jailed for if there was an actual money decree against him.

    So I do not agree that women should also get jailed for non-payment of a debt. Also in my view it is possible to argue that the overwhelming majority of Indian women face structural and institutional inequalities and discrimination that would justify section 56.

    And similarly I also think that jailing someone for adultery in today’s age is archaic and an undue restriction of personal liberty. Divorce is a sufficient remedy for adultery. So I do not think that the law should also punish women for the crime of adultery. On the contrary adultery should be decriminalized for men as well.

    • In fact if you look at the wikipedia entry on Debtors’ Prisons, the entire concept of jailing people for a debt is being discarded by most liberal democracies, albeit slowly. Jailing people for debt is contrary to modern conceptions of human rights.
      Article 11 of the ICCPR, the International Covenant on Civil and Political Rights states, “No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.”
      Article 1 of Protocol 4 of the European Convention on Human Rights prohibits the imprisonment of people for breach of a contract.

      • I quote from https://www.cambridge.org/core/journals/journal-of-african-law/article/imprisonment-of-judgment-debtors/5678CF6435429CB491855E7129C02B5D
        “The Constitutional Court in South Africa in In re Farieda Coetzee v. Government of the Republic of South Africa (unreported, 1995), has held unanimously that the power of a magistrates’ court to issue an order to commit to prison a judgment debtor on account of a failure to satisfy a judgment debt violates the right to freedom contained in Chapter 3 of the Constitution. Applying the proviso in section 33 of the Constitution, the court accepted that the goal sought to be achieved, that is the provision of a mechanism for the enforcement of judgment debts, was a legitimate and reasonable governmental objective, but that ultimately the offending provisions in the Magistrates’ Court Act were overly broad and thus outside the proviso in that they caught not only those who could pay but were refusing to do so, but also those who were genuinely unable to pay.”

  3. Article 1 of Protocol 4 of the European Convention on Human Rights ARTICLE 1
    Prohibition of imprisonment for debt
    No one shall be deprived of his liberty merely on the ground of
    inability to fulfil a contractual obligation.

  4. Pingback: The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence — Indian Constitutional Law and Philosophy – LAW SCHOOL LEARNERS

  5. I agree with you that contrary adultery should be decriminalized.

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