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[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Satyajit Bose.]


Over the past year, the higher judiciary has adjudicated two cases that have vast implications for sex-discrimination jurisprudence in India. The first was Ankita Meena v. University of Delhi. In this case, the petitioner had been barred from writing the end-semester examination, on account of her failure to meet the 70% attendance requirement, which was mandated under the Rules of Legal Education of the Bar Council of India. Crucially, the petitioner was in the latter stages of pregnancy, which made it physically impossible for her to attend class. Aggrieved by the decision of the University, she filed a writ petition before the Delhi High Court. A single judge bench of the Court dismissed her writ petition, thereby upholding the decision of the University. The petitioner then appealed to the Supreme Court by Special Leave (which remains pending).

A year later, the Supreme Court had the opportunity to set the record straight. In Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and Ors., the petitioner had applied for the post of Police Sub-Inspector in the State of Bihar. The selection process was three-fold: two written examinations, followed by a Physical Evaluation Test (PET). However, the petitioner was in the latter stages of pregnancy when the PET was scheduled, and requested the Police Commission for an extension of three to six months on the PET. Having received no response, she filed a writ before the Patna High Court. A single judge bench of the Patna High Court initially granted her relief, which was subsequently overturned by a division bench. The petitioner then appealed to the Supreme Court by Special Leave. The Court allowed the appeal and directed the Commission to conduct a PET for all female candidates who had been unable to participate previously on account of pregnancy.

Barring obvious differences, both cases pertain to the same issue, namely, the beneficial treatment of pregnant women. Why, then, did the respective courts reach different conclusions? Interestingly, neither judgement even attempts to apply Articles 14, 15, 16 and 21 of the Constitution. In Ankita Meena, the judgement of the Delhi High Court was restricted to the Bar Council Rules and its apparent conflict with the Rules of the Delhi University. In Khusbu Sharma, the Supreme Court went one step further, and attempted to engage with beneficial treatment of pregnant women. In this article, I critique the approach adopted by the Court in Khusbu Sharma, and argue that the reasoning is at odds with Articles 16 and 21 of the Constitution.

The Equality of Opportunity

In its judgement, the Court directs the Commission to conduct the PET for all pregnant female candidates. However, the reasoning of the Court is contained in two passages, the first of which is:

“We face a dilemma arising from on one hand maintaining the schedule of the examination as sacrosanct and on the other hand the difficulties faced by women candidates who could undergo the competitive test but are constrained in undergoing PET on account of pregnancy. The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services. It is not as if some quota is being carved out for the women candidates but they are competing against men candidates. They have been successful in competitive examination getting higher merit.

There are two objections that may be raised with this argument. First, the Court frames the issue as a conflict between the sanctity of the examination and the difficulties faced by women candidates in undergoing a competitive test. As per this approach, the special treatment of pregnant women is an exception to the sanctity of the examination schedule, which presumably exists so as to ensure that all candidates have equal time to prepare and give the examination, a presumption which I shall address subsequently. Rather, I argue that the issue is better conceptualised as whether a woman’s pregnancy actively prohibits her from competing equally in such an exam, and what directions ought to be given in order to enable effective participation of women in the exam. This distinction is significant as it attributes the differential treatment of pregnant women as an attribute of equality of opportunity under Article 16(1) (which the Court omits from mentioning even once in its judgement, somewhat bizarrely), rather than an exception to equal opportunity in public employment.

Moreover, the Court assumes the value neutral character of the examination schedule as an objective tool in determining merit. What this implies is that institutional rules, such as the sanctity of examinations, may profess to be objective and neutral in selecting the best candidates, while in reality they perpetuate social hierarchies. This conception of merit was most recently espoused by Chandrachud J., in B.K. Pavitra v. Union of India, where it is stated:

“If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.”

In the present case, the need to preserve the examination schedule was presumably to ensure that candidates have equal preparation time and hence, the best method of selecting the most meritorious candidates. However, this has the indirect effect of selecting only men as policemen, as they cannot get pregnant. Such a theory of merit attacks the heart of substantive equality guaranteed under the Constitution, as it ignores the differential impact of institutional rules on different social groups, most prominently those who have suffered centuries of discrimination.

That being said, it may appear that this distinction is seemingly trivial. I argue that the consequence of framing the issue is seen in the reasoning that follows, which is the second objection that may be raised. In this matter, the Court resolves this conflict by highlighting the rise in crimes against women, thus establishing the necessity for greater representation of women in the police force. This reasoning is dangerous as it relies on policy considerations in order to grant the petitioner the relief that had been prayed for, for violation of a fundamental right. What this means is that the petitioner does not enjoy a right to take the examination after her pregnancy had been completed, but was rather being granted the same on account of collective social need for greater representation of women within the police force. Clearly, the emphasis shifts from enforcing individual rights to collective social benefit, which excludes Article 16(1). In a somewhat strange clarification that follows, the Court effectively excludes Article 16(4) as well, by stating that they are not creating a special quota for women in the police force. Therefore, how does the Court reach the conclusion that the PET has to be conducted for pregnant women on this basis?

Pregnancy and the Meaning of “Choice”

Furthermore, the Court also relies on an additional factor to grant the relief that has been prayed for:

We are persuaded to do the aforesaid also for the reason that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. However that has not happened and in fact, as stated aforesaid, it is on the prodding of this court that these examinations have been held.”

 

In this passage, the Court remarks that if the dates for the exam had been issued from the very beginning, it would not have directed the Commission to conduct PET for pregnant female candidates. Remarkably, the Court states that female candidates must “plan their life accordingly.” Such a statement should not be viewed with surprise. In numerous cases, Indian Courts have held that pregnancy is a voluntary choice that is made by a female, and if it conflicts with any other commitment, no affirmative action can be granted.

In addressing this issue, one of two approaches may be followed. The first approach, as was followed in Inspector (Mahila) Ravina v. Union of India, is to conceptualise pregnancy as a deeply personal and intimate decision that is made by a woman, which falls within the rights guaranteed under Article 21. The second approach, which in my opinion represents the reality of pregnancy, considers the social pressure to bear children that women often face at the time of marriage. In simpler terms, women are often coerced into having children, which negates any element of reproductive choice. Accordingly, it is often not possible to ‘plan their life accordingly’, and place women within the binary of having to bear children, or pursuing their professional ambitions.

Conclusion

From this judgement, it is obvious that pregnancy jurisprudence in India has a long way to go. While the Court must be commended for moving on from Ankita Meena, we are still far away from comprehensively protecting and enforcing the rights of pregnant women in India. At the heart of both judgements lies a question of constitutional interpretation, namely, what theory of equality the Constitution of India is committed to. Until that question is answered, equality of opportunity remains a distant dream.