Guest Post: Deconstructing the Paternalism in Section 66(1)(b) – Treasa Josfine v. State of Kerala

[This is a guest post by Unnati Ghia.]


On 9th April 2021, the Kerala High Court in Treasa Josfine v. State of Kerala directed the State authorities to consider an application submitted by the petitioner (a female trainee engineer) for the post of a Safety Officer in Kerala Minerals and Metals Ltd, on the grounds that she had been denied opportunity on the basis of her sex.

The petitioner’s grievance was that the notification published by the State inviting applications for the post applied only to male candidates, which was discriminatory under Articles 14, 15 and 16 of the Constitution. The counter affidavit filed by the State argued that the notification was in compliance with Section 66(1)(b) of the Factories Act, 1948. Section 66(1)(b) states that “no woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M”. The submission of the State was that the post of a Safety Officer required the person so engaged to work round the clock, even during the night if required. Therefore, women could not be hired for this position under the provisions of the Factories Act. 

Reasoning of the Court

The Court in Treasa Josfine relied on two key decisions of the Kerala High Court. The first decision was that of Hindustan Latex Ltd. v Maniamma, which, in my opinion, does not appear to be a case under Section 66(1)(b). In Hindustan Latex, a Division Bench of the Kerala High Court observed that special provisions for women under Article 15(3) constituted an exception to sex discrimination under Article 14.

In Leela v State of Kerala, another Division Bench took the view that Section 66(1)(b) was a beneficial provision under Article 15(3). The Bench held that Section 66(1)(b) ensured that women were not taken away from their families, and they were protected from the “hazards” of working at night.

The Court also relied on Vasantha R v Union of India, where the Madras High Court held Section 66(1)(b) to be discriminatory under Articles 14, 15 and 16. Interestingly, the Madras High Court observed the validity of Section 66(1)(b) must be tested under Articles 14 and 15(1) because it was a restriction on women, as opposed to being a protective provision under Article 15(3).

In Treasa Josfine, Justice Anu Sivaraman agreed that Section 66(1)(b) is a beneficial provision intended to protect women. However, the Court observed that the Factories Act was enacted at a different time and in a different socio-economic context, particularly with respect to the roles played by women in society. Given this context, Section 66(1)(b)’s force could only be utilised to protect women, but would not constitute a reason to deny them engagement and opportunity if they are fully qualified [paragraph 15]. On this basis, the Court set aside the notification and held it to be violative of Articles 14, 15 and 16. 

The premise of the Court’s decision in Treasa Josfine is that the change in the roles played by women as they shift from domestic labour to wage labour warrants a different interpretation of Section 66(1)(b) [paragraph 14]. The Court relies on the Supreme Court’s decision last year in Ministry of Defence v. Babita Puniya, which held that justifications founded in stereotypical assumptions about women do not constitute a valid basis for denying opportunity. In light of this, the Kerala High Court held the denial of opportunity to the petitioner under Section 66(1)(b) is “completely untenable and unacceptable”. 

Within this reasoning, it is not clear which stereotype has caught the scrutiny of the court and rendered the notification unconstitutional. The Court refers to the fact that women capably work round the clock jobs in several industries today. From this, one may infer that the assumption that qualified women cannot work in a night shift or beyond 7 p.m. is the problematic stereotype in this case. If so, the application of Babita Puniya to this case is valid. 

However, this does little to detract from Section 66(1)(b) as it stands — that women cannot be employed for tasks beyond 7 p.m. The issues identified by Sivaraman J. in the notification therefore stand equally true for the main provision. Yet, the constitutionality of Section 66(1)(b) vis-à-vis the decision in Babita Puniya was not examined by the Court. 

There are two reasons as to why the Kerala High Court in Treasa Josfine may have refrained from entering into this discussion. First, the Judge sitting singly was bound by the previous Division Bench decisions in Hindustan Latex and Leela, and was obligated to follow the position taken in those decisions. Second, the petitioner appears to have challenged the constitutionality of Section 66(1)(b) only to the extent that it impacted her participation in the selection process. 

In this post, I now present reasons for why Section 66(1)(b) cannot withstand constitutional scrutiny under Article 15, in light of the same principles as identified by the High Court. 

Unconstitutionality of Section 66(1)(b)

The premise of Section 66(1)(b) is that women do not have the capability to protect themselves in a job that requires them to work at night. Thus, the denial of opportunity to women under Section 66(1)(b) is justified on the basis of a need for security. What are the issues with this approach?

First, it presumes women to be hapless victims requiring robust protection from the State. This is not to say that the workplace cannot be an unsafe environment for women, but this could be addressed without victimising them. Second, the approach under Section 66(1)(b) places the burden of this protection on women themselves by completely removing them from a “dangerous” work environment, as opposed to taking steps to remedy the threat therein. 

Another rationale behind Section 66(1)(b) was highlighted by the Kerala High Court in Leela — the provision ensures that women would be able to take care of their families and that their children would not suffer. A similar argument was made before the Madras High Court in Vasantha R v Union of India. The Madras High Court held that women holding household duties is not a universal phenomenon, and did not constitute a reason for denying a night shift. 

Interestingly, this rationale was also explicitly rejected by the Supreme Court in Babita Puniya. There, Chandrachud J. observed that the argument that women could not meet their requirements of service due to domestic obligations was itself predicated on the stereotype of such obligations resting solely on women. Women are often pushed into and limited to the domestic sphere by the patriarchy itself. This is why it is problematic to deny employment opportunities or benefits on the basis that women have to devote time to the home, because it further entrenches the public-private divide. 

On the basis of the anti-stereotyping principle in Babita Puniya then, Section 66(1)(b) cannot pass muster. An obvious response to this argument is that even if it employs a stereotype, it is a special provision permitted under Article 15(3). For instance, the Kerala High Court maintains that Section 66(1)(b) is a special and beneficial provision for women, intended to protect them from exploitation. Admittedly, provisions such as Section 66(1)(b) have posed a legal conundrum, because courts generally conflate provisions protecting or prima facie in favour of women as necessarily being materially beneficial to them. 

The perils of this form of “protective discrimination” in favour of women have already been acknowledged by the Supreme Court in Anuj Garg v. Hotel Association. In Anuj Garg, a law prohibiting women from being employed in establishments serving intoxicants was struck down because it ended up “victimizing its subject in the name of protection”. Such laws presume that women inherently lack agency, and thus are examples of State sponsored paternalism. 

Justice Ruth Bader Ginsburg had pointed out a similar phenomenon in the United States in the aftermath of Muller v Oregon. In Muller, the US Supreme Court upheld a statute that prohibited women from working for more than 10 hours a day, due to the “unique vulnerability” of women. The decision in Muller resulted in a series of “protective” labor laws for women, which prohibited night shifts, limited the loads they could carry and excluded them from certain jobs completely. According to Ginsburg J., these laws prevented women from competing with men, resulting in lower paying jobs, and also reinforced traditional gender roles — all in the name of “protection”. Subsequently, in the first case Ginsburg J. argued before the US Supreme Court, Justice Brennan observed that protective labor laws placing women on a pedestal were, on closer inspection, often a cage.

Similar forms of gender discrimination are justified by Indian courts under Article 15(3). In response, Gautam Bhatia for instance has argued that “special provisions” must bear some relation to the historical and structural subordination of women. This would ensure that the State must identify and attempt to remedy specific forms of disadvantage, as opposed to provisions that pay lip service to equality and limit the agency of women. 

Conclusion

Notably, states such as Maharashtra and Kerala have altered the position under Section 66(1)(b) by permitting the employment of women post 7 p.m. provided that all safety and security safeguards are met by the employer. This leaves the employment of women entirely to the option of the employer, but does little to incentivise them, especially given the benefit of a statutory justification to deny employment in the first place. In light of these reasons, Section 66(1)(b) must not be understood as a “special or beneficial” provision for women. Instead, laws that mandate safeguards and security for women at the workplace without removing them from the workplace altogether would be better suited to the objective of a “beneficial provision” for women. 

Notes from a Foreign Field: In Re Humphrey – A Case Against Cash Bail [Guest Post]

[This is a guest post by Kieran Correia.]


The Supreme Court of California (“the Court”), in a unanimous ruling, held that detaining defendants solely because they are unable to afford bail was “unconstitutional.” This judgement marks a rupture from the routine of requiring defendants — even indigent defendants — to post large, often outrageously high amounts of cash bail, a practice that results in the disproportionate incarceration of people of colour in America.  

Some background to this case is in order. Humphrey, an African American sixty-six-year-old man, allegedly committed theft against a seventy-nine-year-old Elmer J. who lived in a senior home. Humphrey reportedly barged into Elmer’s home and, after threatening him, robbed $7 and a bottle of cologne. At arraignment, the prosecution demanded bail be set at $600,000 — more than 4 crores in Indian rupees — an astronomical figure, especially in comparison to the amount Humphrey stole from Elmer. Humphrey’s request to be released on his own recognizance — essentially, without posting bail — was denied and the amount was set at $600,000. Humphrey challenged the decision, pointing to the racism inherent in California’s criminal justice system and his rehabilitation from drug addiction among several other ameliorating aspects. However, the court dismissed his release request yet again, whilst reducing the bail amount to $350,000 — an amount still unaffordable to Humphrey.

Humphrey then filed a habeas corpus petition in California’s Court of Appeal. The appeals court granted his petition after the Attorney General reversed his decision of contesting bail. The appeals court ordered a new bail hearing, and Humphrey was subsequently released on certain nonfinancial conditions. The case was not appealed, but, at the request of certain authorities, the California Supreme Court took up the matter to settle the constitutionality of money bail in California.

Cash/money bail is still the dominant condition courts world over impose on defendants if they want to secure pretrial release. The bail amount can be egregiously high, as it was in this case, especially so in California, something the Court notes as well. This has led to the commercialization of furnishing bail in the United States: bail insurance companies and bail bond agents take advantage of the system, lining their pockets in the bargain.

The United States Supreme Court — most notably in Bearden v. Georgia — has, in the past, indicated its unwillingness to allow an indigent defendant’s probation to be revoked because of their being unable to pay a fine. The Supreme Court opined that the state could only imprison the probationer if “alternatives to imprisonment [were] not adequate in a particular situation to meet the State’s interest in punishment and deterrence,” as long as he has made efforts to pay the fine. Though this ruling has rarely been upheld in practice, it nonetheless indicated the Supreme Court’s opinion vis-à-vis imprisoning probationers solely because of lack of money: that it was “fundamentally unfair.”

The Court draws on this broadly similar case to argue that it is not “constitutional to incarcerate a defendant solely because he lacks financial resources.” This is because, the Court argues, to do so would violate the defendant’s substantive due process rights to liberty as well as her equal protection rights — a similar argument made in Bearden. Substantive due process is an American constitutional law principle that argues that due process, a notion that finds a place in both the Fifth and Fourteenth Amendments to protect against arbitrary action on the part of the state on certain issues, also protects certain substantive rights — such as the right to liberty.

The Court acknowledges that bail is set to ensure the defendant appears in court proceedings and to protect the victim and the public. However, whilst setting bail, courts often ignore the accused’s financial situation; a high bail order can, therefore, in effect, become a “pretrial detention order.” As a corrective, the Court posits:

An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not. (Emphasis supplied)

Thus, two things can be understood from this. First, the court does not entirely do away with the concept of cash bail, as some have reported: defendants who have the means — as determined by the court — to post bail but fail to do so will not benefit from this judgement. And second, the test of “clear and convincing evidence” by the state in order to deny bail has been reinforced: pretrial detention can only be an option where less restrictive alternatives cannot satisfy the state’s interests.

This is a welcome change from the status quo on cash bail. Cash bail in the United States has played an unenviable role in incarcerating around 700,000 people pending trial, ensuring the United States has the largest jail population in the entire world. Releasing defendants who were only detained because of their inability to post bail will also disproportionately benefit Black Americans who bear the brunt of the carceral state.

However, this ruling, welcome as it is, does not go all the way in reforming California’s money bail system. Illinois, for example, recently became the first state to completely abolish money bail from the criminal justice system, and the State of New Jersey and Washington, D.C., have already nearly abolished the money bail system. Keeping the cash bail system partially intact, as this judgement does, only allows the continuation of the funnelling of enormous amounts of money into bail insurance corporations. What is more, is that bail will continue to be set by a rigid schedule — the same schedule that recommended bail be set at $600,000 for the crimes committed by Humphrey; though many may have the means to pay those amounts of bail, they are still immense amounts of money that are taken away from a potentially innocent defendant.

Nonetheless, progress, wherever made, should be heralded. The lessons here for India’s criminal justice system cannot be ignored. Like the United States, marginalized sections in India are disproportionately incarcerated: Muslims, Dalits, and Adivasis, whose share of the population is 39%, comprise a little over 50% of the imprisoned population in India. Though India’s Supreme Court has held, on numerous occasions, that bail is the exception rather than the rule — encapsulated quite succinctly by Justice V.R. Krishna Iyer’s “[t]he basic rule may perhaps be tersely put as bail, not jail” — Indian courts have rarely lived up to this ideal.

Moreover, as in California, judges in India set bail at a high amount, leading to several thousand indigent defendants languishing in jail even as wealthier defendants who commit the same offence are let off. During the Covid-19 pandemic, for instance, hundreds of arrestees were in jail because they could not meet their surety conditions. These problems with bail had prompted Justice P.N. Bhagwati in Hussainara Khatoon to remark that it was “imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.” The reason for eliminating high sureties as conditions for bail for indigent defendants in India is, thus, clear. Indeed, the California court’s judgement can serve as a useful roadmap. The right to liberty, for instance — a cornerstone of the California court’s judgement — is a core feature of the Indian constitution as well, enshrined in Article 21 of the Constitution of India, as is the right to equal protection before the law, codified in Article 14. Reading these articles together underscores the unconstitutionality of mandating cash bail even for poor defendants — a practice that, in effect, results in what Justice Cuéllar of the California court dubbed a “pretrial detention order,” when other conditions of release could have worked.  

The California Supreme Court’s judgement is certainly promising. The inclusion of cash bail in the justice system was always bound to incarcerate poor arrestees whilst acting as a get-out-of-jail-free card for the wealthy. This ruling shows us a way out of this.

Lt. Col. Nitisha vs Union of India: The Supreme Court Recognises Indirect Discrimination

[Editor’s 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.]


In early 2020, the Supreme Court delivered judgment in Secretary, Ministry of Defence vs Babita Puniya, holding that the Indian Army’s policy of denying women officers a permanent commission [“PC”] was discriminatory. Following this judgment, the Union Government put into place a procedure for the grant of PCs to eligible women officers. The results of this process – that involved 615 eligible women officers – spurred a second round of litigation before the Supreme Court. In a judgment delivered yesterday, Lt. Col Nitisha vs Union of India, the Supreme Court – speaking through a bench of Chandrachud and Shah JJ – held that the implementation of the Babita Puniya judgment had also been discriminatory. In particular, the importance of Lt. Col. Nitisha lies in the fact that the criteria for grant of PCs to women were facially neutral, but found to be indirectly discriminatory. This marks the first occasion that the Supreme Court has categorically held indirect discrimination to violate the Constitution, and set out an account of what indirect discrimination entails.

As in Babita Puniya, the facts of the case are somewhat complicated, and this post must necessarily present a somewhat schematic account. Broadly, there were three contentious criteria of assessment for the grant of PC: first, that the women officers had to clear a certain percentage score, as well as score higher than the lowest scoring male officer who had been awarded a PC; secondly, that Annual Confidential Reports [“ACRs”] were to form part of the grading; and thirdly, certain medical requirements had to be fulfilled.

On the face of it, these criteria were neutral, i.e. they did not, on their face, discriminate between male and female officers. On digging a little deep, however, it was found that the very fact that for all these years, women had not been eligible for the grant of PCs, had a direct bearing on some eligible candidates’ failure to fulfil the criteria. For example, ACRs were prepared with a view to recommendations for the grant of a PC. Given that female officers had not been eligible for PCs, in their case, the reports were more lackadaisical than those of their male counterparts; these were also affected by the fact that women officers had not applied for a range of opportunities, or courses, that were supposed to be considered in the ACRs. This was because their career options had hitherto been blocked – thus, effectively, leading to a cycle of discrimination that now meant that they applied with relatively unfavourable ACRs. Similarly, with respect to the medical criteria, the Court found that male officers took their medical tests at the time they applied for PCs (and once granted PCs, they were not required to maintain the same levels of fitness). However, female officers – who had been ineligible all these years – were now required to prove the very level of fitness that otherwise similarly situated male officers were no longer required to prove (as they had been granted PCs many years before).

Of course, other than the requirement of scoring higher than the lowest-scoring male candidate, none of the eligibility criteria required any facial comparison between women and men. For this reason, the Supreme Court was required to reach further, and articulate an alternative model of equality and discrimination. It did so by drawing a distinction between intention and effect, and discrimination wrought by individual acts on the one hand, and by the impersonal workings of institutions and structures on the other. Chandrachud J. held that the concept of substantive equality – to which the Constitution was committed – required accounting for both systemic and indirect discrimination (paragraph 45). After an extended comparative examination (paragraphs 51 – 65), Chandrachud J. held that the two-step test for discrimination evolved in the Canadian Supreme Court case of Fraser (discussed on this blog here) was the most appropriate. The Fraser test – as set out by the Supreme Court – requires that:

First, the Court has to enquire whether the impugned rule disproportionately affects a particular group. As an evidentiary matter, this entails a consideration of material that demonstrates that “membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group”. However, as such evidence might be hard to come by, reliance can be placed on evidence generated by the claimant group itself. Further, while statistical evidence can serve as concrete proof of disproportionate impact, there is no clear quantitative threshold as to the quantum of disproportionality to be established for a charge of indirect discrimination to be brought home. Equally, recognizing the importance of applying a robust judicial common sense, the Court held: “In some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate” … Second, the Court has to look at whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. Such disadvantage could be in the shape of: “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.” (para 65)

The Court also noted that while statistical data would aid in establishing a finding of indirect discrimination, it would not necessarily exist in every case (paragraph 68); and that while due deference ought to be accorded to employer arguments around suitability criteria for the job, the Court would have to be vigilant to avoid endorsing the same stereotypes or generalisations that were responsible for the discrimination in the first place (paragraph 70). Effectively, the Court indicated that it would have to check whether the employer had acted proportionately – ensuring, for example, that there were no other measures that could have been taken that did not have the same discriminatory effect. The Court correctly noted, as well, that structural discrimination would often require structural remedies (paragraph 73).

Applying this analytical framework to the case at hand, indirect discrimination was easily made out. It was the very fact that female officers had been formally denied a set of opportunities for all these years, that now ensured that a seemingly neutral set of criteria – neutral in that the same set of criteria was applied to eligible male candidates – was discriminatory in effect (note that the female candidates were not competing against male candidates in this case, so this judgment also shows that a finding of discrimination does not need a comparator group). The quality of the ACRs, the limited consideration of awards or achievements attained only as on the 5th or 10th year of service, and so on, were all indications of this. Thus, as Chandrachud J. pointed out: “A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts.” (para 96). The same was the case with the medical fitness criteria, as explained above: while there was nothing wrong with the criteria per se, it was their application that was indirectly discriminatory. Female officers, who were not eligible for PC for all these years, were asked to pass a medical test now that their similarly situated male counterparts had been entitled to take at a substantially younger age (and then not required to maintain). Thus the Court held:

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service. (para 112)

While the facts of this case are undoubtedly complex, it will be easy to see what the Court was trying to remedy by looking at another similar case, but with much simpler facts. In Australian Iron and Steel Co v Bankovic, a company imposed a “last in, first out” retrenchment policy (i.e., you got retrenched based on how short a time you spent in the company). It turned out, however, that the company had only recently begun to employ women, and that therefore, the retrenchment policy was much more likely to target women, simply for this reason. This was found indirectly discriminatory. Thus, this was the sequence: first, there was formal and direct discrimination, that put women at a disadvantage. Then, formal discrimination was ended, but criteria were put in place that failed to account for that prior disadvantage – and thus ended up entrenching and perpetuating it, indirectly. In a very similar way, in this case, for the longest time, women faced formal and direct discrimination by not being eligible for the grant of PC. This formal discrimination was struck down by the Court in Puniya – but the policy that was framed for implementing it failed to account for the disadvantage that had been caused (directly) all these years. Thus, by the very fact of its “neutrality”, the policy was indirectly discriminatory.

Of course, not all such examples of indirect discrimination will be as clean-cut – that is, effectively piggybacking off former direct discrimination. Importantly, however, as we have seen above, Chandrachud J.’s formulation was detailed enough to address those more complex cases when they do arise. The proof of the pudding is, of course, in the eating, but for now Lt Col Nitisha’s Case marks an important advance in its acknowledgement, recognition, and articulation of indirect discrimination under the Indian Constitution.

 

Coronavirus and the Constitution – XXXVIII: One Year On

The first Indian national lockdown in the wake of Covid-19 was announced on 24th March, 2020. The management of the pandemic by the central and state governments is a matter for the history books (although, of course, the pandemic is not yet over). Over the course of the past year, however, these governments’ far-reaching actions – aimed at containing the pandemic, but with numerous spill-over effects – raised numerous constitutional issues. These involved, for example, civil rights, access to healthcare, the rights of migrants, and so on. On this blog, there have been thirty-seven posts examining the interface between Covid-19, state action, the Constitution, and the Courts. One the first anniversary of the lockdown, it is a good time to take stock.

Pandemic Management by Decree

The greatest concern remains how Covid-19 turned into a cover for executive aggrandisement, both at the central and at the state level. At the centre, this involved the invocation of the Disaster Management Act of 2005, and a somewhat extended interpretation of its provisions, to arm the central government with wide-ranging powers over everyday life. At the state level, the several state governments invoked the colonial Epidemic Diseases Act, to exercise similar powers over their territories (including the arguably ultra vires “sealing off” of certain districts from time to time). This, in turn, was supplemented by the liberal use of Section 144 of the Code of Criminal Procedure to restrict movement in specific areas.

At all levels, therefore, Covid-19 was managed by an interlocking set of executive decrees, passed under broadly-worded laws, and leaving no scope for the representative bodies – parliament of the state legislatures – to debate or to question these moves. It is, of course, trite to say that the legislature in India has become effectively moribund, and even a functioning Parliament and State Assemblies would have scarcely made a difference to the handling of Covid-19. That is true enough, but the formal exclusion of deliberative representative bodies from the management of a criss by invoking broadly-worded laws remains a matter for concern, whatever the state of those bodies: as Abhinav Sekhri put it, it took us into a space of “permanent crisis governance“.

Civil Rights and Proportionality

That Covid-19 was – and remains – a public health crisis that would require governments to take far-reaching measures – many of which would have a severe impact on everyday life and on civil rights – is unquestionable. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. State action violating rights would still need to conform to the principles of proportionality, albeit with the rider that the importance of the State goal (preventing the spread of a global pandemic) would necessarily allow the government a wide degree of leeway in fashioning measures to deal with the problem.

That said, throughout the pandemic – and especially in its early stages – there was a range of dubious State action that arguably fell foul of the proportionality standard. These included, for example, curfews, public disclosure of the private details of quarantined individuals, restrictions on individual movement, compelling quarantined people to upload “selfies” to a government portal, the notorious Aarogya Setu App (with its Aadhaar-esque mandatory-voluntary nature), and bans on vehicular movement. Unfortunately, most of these measures escaped judicial scrutiny. The exception was Odisha’s vehicles ban, which was modified by the Odisha High Court in a measured and well-reasoned judgment, that is a good example of the application of the proportionality standard in a public health emergency.

Equality and Non-Discrimination

Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio-economic status of a person. “Work from home” jobs statistically track along socio-economic lines (the higher paid your job, the more likely it’s a job that can be done from home), and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. The decision to impose a hard national lockdown, therefore, raised important constitutional concerns around equality and non-discrimination. Note that this does not mean that the lockdown should not have been imposed (scientific evidence shows that lockdowns are essential to breaking the chain of transmission of the virus). What it does mean, however, is that once the lockdown was imposed, the State had an affirmative obligation to deal with its discriminatory impact – and that its failure to do so merited constitutional scrutiny.

Unfortunately, however, the unequal and discriminatory impacts of the lockdown were given short shrift; for example, the Supreme Court passed a cursory judgment failing to properly engage with the multiple equality concerns with the UGC’s Circular on the conduct of examinations. Secondly, PIL requiring the State to guarantee the payment of minimum wages to workers affected by the lockdown was not taken seriously by the Supreme Court, with the Court – unfortunately – indicating that it viewed the issue as a matter of “policy” (the rights to equality and to livelihood are not matters of policy).

Eventually, it was the government that took action, with a regulation under the Disaster Management Act requiring payment of wages to workers for a certain period of the lockdown. In one of the most unfortunate orders to be passed during the pandemic, the Supreme Court effectively stayed this provision (ironically, the only provision the Court stayed under the DMA was the one provision that sought to protect workers’ rights) – and then buried the case by adjourning it while asking the employers and employees to “negotiate” (as the old saying goes, a mediation between the sword and the neck). Thus, the regulation requiring the payment of wages to those who had suffered from job loss because of the lockdown was judicially nullified.

By contrast, the Supreme Court’s decision in the Gujarat Mazdoor Sabha case – where the State of Gujarat’s attempts to cut back on labour protections by citing Covid-19 as an excuse were turned back by a thoughtful and closely-reasoned judgment – stands out precisely because, for once, the Court refused to accept Covid-19 as a carte blanche for the curtailment of rights, especially on the basis of vague invocations of “public emergency”. One wishes that this judgment had been the exception, and not the norm, as we shall see below.

The Supreme Court’s Deference

The Supreme Court’s excessive and undue deference to the executive was starkly visible in multiple separate instances. First, despite legitimate constitutional and legal concerns, PILs challenging the PM-CARES fund were dismissed as frivolous and ill-founded. It is telling that to this day, we do not know the breakdown of spending under the PM-CARES fund, something that should be anathema to any jurisdiction styling itself a constitutional democracy.

Secondly – and in what will undoubtedly go down as a moment of great infamy – when the Supreme Court was petitioned about the severe difficulties faced by migrants due to the sudden and unplanned lockdown, first accepted the Solicitor-General’s statement that there were no migrants on the road, and then passed an extraordinary order blaming migration on “fake news”, and praising the government for its efforts in tackling Covid-19.

Thirdly, acting on a petition before it, a bench of the Supreme Court in April 2020 ordered that Covid testing be made free of cost. While the order had gaps, in my view – as I argued at the time – given the nature of the Covid-19 pandemic, it was legitimate (but see here, here, here, here, and here) for the extensive debate that this sparked upon the blog). However, upon various private bodies moving the Court, and at the instance of the State, it did a complete – and wholly unreasoned – volte face, changed its own order, and while appearing to introduce a means-testing requirement, effectively killed it. Now, there is a debate to be had over whether the Court’s initial order was right or wrong. What is troubling, however, that in a matter as important as this – involving the right to equality and the right to health during a global pandemic – the Court provided no reasons for its flip-flops. Indeed, it accorded no judicial scrutiny to the most basic of factual claims – for example, that Rs 4500 as the price for a test had been determined after consulting experts (reports showed that no experts had been consulted), or of a causal link between making testing free (or cheaper), and the availability of tests.

Thus, both in the migrants’ case and in the free testing case, the issue was not that the Court interfered – or declined to interfere – with questions of policy; it was – as I argued here – that the Court failed to hold the government to account in following its own policies; this does not require judicial activism, but classic, old-school judicial scrutiny, scrutiny that was made all the more necessary because of the bypassing of Parliament, leaving the Courts as the only checking bodies left. The Court’s failure to do so effectively created a situation of Caesarism: i.e., rule by acclamation, not under democratic checks and balances. But the larger issue it revealed is perhaps even more important: at present, under our Constitution, there is no consistent standard for the recognition and enforcement of socio-economic rights. While this has always been known, it was the (often failed) attempts to actually enforce these rights during Covid-19 that brought the point home.

The High Courts’ Vigilance

There was, however, a marked difference in how the several High Courts approached their responsibilities during the pandemic – demonstrating, perhaps, that in public health emergencies that are managed at a more localised level, High Courts might be in a better position to adjudicate a range of issues involved. . For example, the Delhi High Court passed an important order regarding the implementation of the right to food, and keeping open PDS shops, during the pandemic. The Madras High Court passed a good order on the right to movement of migrant workers.

Most importantly, in a series of excellent orders, the Karnataka and the Gujarat High Courts held the State governments to account on issues involving the rights of migrants, medical care, food, shelter, and other grave lapses in pandemic management. The actions of the Karnataka and Gujarat High Courts stand out as models of judicial engagement with State action during the pandemic: both Courts engaged in dialogic judicial review, i.e., not substituting judicial wisdom for State policy, but by holding the governments to account for their failure to protect constitutional rights during the pandemic (unfortunately, in the Gujarat High Court, one of the judges hearing the case was swiftly replaced, and the hearings died a quiet death). Both Courts, for example, asked the State governments to file affidavits, and it was quickly found, on a reading of those affidavits, that the governments were failing on their own terms. The Courts’ orders were then premised on a rectification of those failures, and indeed, directing the government to act to mitigate those failures. It is in this way that the High Courts engaged in dialogic judicial review, and ensuring executive accountability under the Constitution on a continuing basis.

The Bombay High Court also engaged in dialogic judicial review when considering the issue of price-capping N-95 masks, closely engaging with information provided by the government, on its own terms. There were also thorough and detailed orders passed on access to food, migrant rights, and the right to a decent burial.

The Conclusion

Whenever we face an emergency of any kind, it becomes particularly easy to argue that rights are a luxury that cannot be afforded in times of existential threat, and that the State must be given complete leeway to tackle the emergency as long as it lasts. It is also tempting to turn the truism that the Courts should not get into the day-to-day management of the pandemic, into an excuse for judicial abdication. Tempting as it is to make these arguments, history has also repeatedly shown us that it is wrong-headed; not only is it more than possible to handle emergencies while being protective of basic rights, it is also the case that executive aggrandisement of power during an emergency inevitably becomes permanent, with emergency and normalcy eventually bleeding into each other.

There is little purpose in knowing history if we do not intent to learn from it. In this context, the invocation of the DMA and the Epidemic Diseases Act to manage the pandemic via executive decree is the repetition of an old story, which recurs every time there is an emergency. One can only hope that after the pandemic is over (of which there is no sign so far), we will be vigilant about the expansion of such executive rule into daily life.

Secondly, the pandemic has revealed the hollowness – in a sense – of India’s Article 21 jurisprudence. Ultimately, when it came to the crunch, the grand rights to livelihood, food, and health meant very little in practice, especially at the Supreme Court: the migrant and free testing cases are testament to how, in the enforcement, these rights are paper tigers.

Thirdly, however, there are reasons for optimism as well. The Supreme Court’s judgment in Gujarat Mazdoor Sabha was a classic example of the role a vigilant judiciary can play in stopping a government that tries to use the pandemic as a cover to cut back on workers’ rights. And the orders of the Karnataka and Gujarat High Courts provide models of dialogic judicial review, and the walking of the delicate tightrope between judicial abdication on the one hand, and the judiciary (wrongly) trying to “manage the pandemic” on the other. As we eventually emerge from the pandemic, there is a lot to reflect on – and to learn – from the legacy of this past year, and about the role of courts and of rights in a crisis.

Notes from a Foreign Field: The South African Constitutional Court on the Rights of Domestic Workers

Last week, the South African Constitutional Court handed down an important judgment concerning the rights of domestic workers. In Mahlangu v Minister of Labour, the question before the Court was whether the exclusion of domestic workers from South Africa’s social security law – the COIDA – was unconstitutional. The Court unanimously answered that it was. The majority judgment, in particular,  repays careful study, as it advances constitutional jurisprudence in relation to inter-sectionality, indirect discrimination, and dignity, in important directions.

In this post, I do not consider the challenge based on Section 27 of the South African Constitution, that guarantees the right to social security. I will consider, instead, the equality and dignity challenges.

Equality and Non-Discrimination

It was argued that the blanket exclusion of the entire class domestic workers from the scope of the COIDA violated the right to equal treatment, and amounted to unfair discrimination against them, in contravention of Section 9 of the South African Constitution. As far as the right to equal treatment went, the government conceded the case at the bar, and the Court therefore returned a finding that the exclusion of domestic workers was irrational and served no discernible legislative goal.

Let us focus, therefore, on the unfair discrimination argument, centred around Section 9(3) of the South African Constitution. Section 9(3) prohibits direct and indirect discrimination on a number of familiar grounds (race, sex, sexual orientation, religion, and so on). “Domestic work” is not a listed ground under Section 9(3), and so this was not a case of direct discrimination. The Court found, however, that the exclusion constituted a case of indirect discrimination:

… because, as the applicants and amici submit, domestic workers are predominantly Black women. This means discrimination against them constitutes indirect discrimination on the basis of race, sex and gender. (para 73)

Note, however, that race, sex and gender are multiple grounds. This, therefore, took the Court into the concept of inter-sectionality, which it defined as the acknowledgment that “that discrimination may impact on an individual in a multiplicity of ways based on their position in society and the structural dynamics at play.” (para 76) Consequently:

It is undisputed between the parties that domestic workers who are in the main Black women, experience discrimination at the confluence of intersecting grounds. This simultaneous and intersecting discrimination multiplies the burden on the disfavoured group. (para 84)

It was evidently clear, therefore, that (a) a predominant number of domestic workers were black women, and (b) black women were located at intersecting axes of discrimination. This is what set apart the exclusion of domestic workers, as opposed to the exclusion of defence forces or the police (who, in any event, had access to other social security schemes):

Multiple axes of discrimination are relevant to the case of domestic workers. Domestic workers experience racism, sexism, gender inequality and class stratification. This is exacerbated when one considers the fact that domestic work is a precarious category of work that is often undervalued because of patronising and patriarchal attitudes. (para 90)

Indeed, in this case, as the Court observed, the reason why domestic workers were predominantly black women was itself founded at the intersection of racial and gender discrimination, at the time of apartheid:

The combination of influx control laws and the migrant labour system also had a particularly onerous effect on Black women. Taken together, they restricted the ability of Black women to seek and obtain employment opportunities, thus rendering them dependent on absent husbands or sons. Essentially, this all sedimented a gendered and racialised system of poverty, that was particularly burdensome for Black women. (para 98)

Consequently, their present exclusion from COIDA amounted to nothing more than a continuation of the same intersectional discrimination (para 100). For this reasons, the Court therefore held that the right against unfair discrimination had been breached.

Dignity

The Majority’s dignity analysis was very interesting. In brief, it noted that the reason why domestic work, alone, had been excluded from the protective scope of the COIDA was because it was not considered to be “real work”, as traditionally understood. This attitude towards domestic work was rooted in patriarchal assumptions. As the Court noted, therefore:

Historically, in varying contexts across the world, domestic work has generally not been regarded as real work and has been undervalued for that reason. In the American context, it has been argued that the historical undervaluation of domestic workers stems primarily from the gendered and racialised nature of those who have traditionally done this work, namely African-American women. To this end, domestic work there has been undervalued for two reasons. First, it has been described as work done by a “despised race”. Second, it has been regarded as “women’s work” or a “labour of love” having no economic currency. (para 110)

This, when combined with the exploitation built into domestic work, therefore made it clear that “the exclusion of domestic workers from COIDA is an egregious limitation of their right to dignity, alongside its infringements on their other constitutional rights. It extends the humiliating legacy of exclusion experienced during the apartheid era into the present day, which is untenable.” (para 115)

Analysis

The Constitutional Court’s judgment highlights the importance – and indeed, the indispensability – of paying close attention to context in any equality and discrimination-oriented examination. The Court’s inter-sectionality and dignity analysis was rooted in context – both the historical context that was responsible for compelling a disproportionate number of black women into domestic work, and the continuing context of how intersecting axes of disadvantage worked against them. Grounding domestic workers’ exclusion within this context was what allowed the Court to find that there existed both indirect and inter-sectional discrimination, as well as a violation of dignity.

The judgment is also important because – if we bracket the Section 27 analysis – what was at issue was not discrimination in its traditional sense (such as, say, different pay for men and women), but that legislation had not extended its benefits to a discrete category of work (domestic work). Historically, Courts have been reluctant to expand the scope of protective laws simply on the basis that certain categories are not within their scope, as that has been considered to be a matter of policy. The Constitutional Court’s application of the discrimination and dignity framework, however, dispensed with any such objections, as the very fact of exclusion was grounded within clear constitutional prohibitions.

This is important for a third reason: labour law – with its inclusions and exclusions – has often been considered to be an autonomous domain, with constitutional principles exercising weak scrutiny, at best. The Constitutional Court’s judgment demonstrates how rigorously testing labour law upon the touchstone of the Constitution will ensure that the rights of the most vulnerable are not left to the mercy of arbitrary legislative classifications (whether it was the exclusion in this case, or otherwise artificial definitions of “employees” or “employment relationships”, which equally serve to limit access to labour rights).

The advances made by the Constitutional Court in the domain of inter-sectionality, indirect discrimination, and dignity, are worthy of emulation. In 2018, in Navtej Johar, the Supreme Court gestured towards inter-sectionality, and various High Courts have tentatively begun to articulate the concept indirect discrimination. It remains for the Courts to firmly embed these concepts into our equality and discrimination jurisprudence. It is also crucial for Courts to make clear that labour law is a critically important terrain for actualising constitutional values, and that differential or discriminatory access to labour rights raises serious constitutional concerns. Here again, the judgment of the South African Constitutional Court shows the way.

 

 

 

 

 

 

Notes from a Foreign Field: Developing Indirect Discrimination – Bringing Fraser to India [Guest Post]

[This is a guest post by Gauri Pillai.]


Article 15(1) prohibits the State from discriminating against any citizen ‘on grounds only of religion, race, caste, sex, place of birth or any of them’. The Supreme Court, in the now infamous Nergesh Meerza, read Article 15(1) to mean that discrimination should not be made ‘only and only on the ground of sex’ but could be made ‘on the ground of sex coupled with other considerations.’ On the one hand, the ‘on ground only of…sex’ test functions to bring in a requirement of intention to discriminate. The presence of a reason for discrimination—say, to protect women—operates as an ‘other consideration’, bringing the rule outside the scope of the non-discrimination guarantee, even if the effect of the rule is to disadvantage women (see here). Discrimination in thus understood to mean intentional, individual acts of prejudice tied to the ‘moral blameworthiness’ of actors. There is no recognition that ‘such prejudices are frequently embedded in the structure of society’, the ‘unquestioned norms, habits, and symbols in the assumptions underlying institutional rules and the collective consequences of following those rules’: in other words the ‘everyday practices of a well-intentioned society’, beyond the conscious coercive actions of a ‘tyrannical power’ alone.  On the other hand, the ‘on ground only of…sex’ test excludes indirect discrimination. Facially neutral rules having an adverse effect on members of a specific group would amount to ‘other considerations’ beyond the listed ground, thus placing such rules outside the reach of Article 15(1) (see here).

However, the Supreme Court trilogy in Sabarimala, Joseph Shine and Navtej Johar offers an alternate reading of the non-discrimination guarantee. First, the scope of Article 15(1) was extended to ‘institutional and systemic discrimination against disadvantaged groups’, thereby tackling ‘structures of oppression and domination’ excluding members of these groups from full and equal social, economic, political and cultural participation (Chandrachud J., concurring opinion, Sabarimala, paragraph 117 and Joseph Shine, paragraph 38). Thus, there was a shift towards understanding discrimination in a structural sense. Second, the central enquiry under Article 15(1) was no longer the intention of the discriminator. Rather, the ‘primary enquiry to be undertaken by the Court’ was whether a rule, in form or effect, ‘contributes to the subordination of a disadvantaged group of individuals’ (Chandrachud J., concurring opinion, Joseph Shine, paragraph 38). Finally, the ‘on ground only of…sex’ test was dismissed as a ‘formalistic interpretation’ of Article 15(1), because it failed to recognise the ‘true operation’ of discrimination (Chandrachud J., concurring opinion, Navtej Johar, paragraph 36). Instead of relying on the formal basis of classification—the listed ground ‘plus’ the facially neutral criterion—Article 15(1) was reoriented to focus on the effect a facially neutral rule. In other words, indirect discrimination was recognised, and brought within the scope of the non-discrimination guarantee.

Despite the steps forward, several questions still remain unanswered. How does the recognition of discrimination as a structural phenomenon affect the doctrinal functioning of the non-discrimination guarantee? What is the test for indirect discrimination? How should courts assess the impact of a rule? What forms of impact are relevant? What kind of evidence is suitable and necessary for such impact assessment? Answers to these questions are crucial to enable Courts to apply these concepts going forward. In their absence, these ideas could remain at the level of rhetoric, without translation into doctrine. In this post, I present the recent decision by the Supreme Court of Canada in Fraser v Canada—interpreting the non-discrimination guarantee under Section 15 of the Canadian Charter—as offering clear responses to these questions, and thus providing normative and doctrinal guidance for India. However, before I get into discussing the case, it is important to interrogate briefly why a decision from Canada is relevant for constitutional jurisprudence in India: why should India listen to Canada?

Canada offers a helpful comparative because the constitutional function of the non-discrimination guarantees in the Canadian Charter and the Indian Constitution bear significant similarities. As the Court recognises in Fraser, ‘the root of s. 15  is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed’ (paragraph 77). An identical commitment underlies Article 15, the object of which has been identified as guaranteeing protection to ‘those citizens who had suffered historical disadvantage’ by removing their ‘age-long disabilities and sufferings’. This is reinforced by the placement of Article 15 within the ‘equality code’, consisting of Article 16, which permits the State to treat members of disadvantaged groups differently through reservations, offering them ‘real and effective’ equal opportunity for employment; Article 17, which abolishes untouchability to free Dalits from ‘perpetual subjugation and despair’, ‘social inequity, social stigma and social disabilities’; and Article 18 which prohibits an Indian citizen from accepting titles in order to dismantle social hierarchy, or the perceived superiority of some over the other.

Having set out the similarities in the constitutional vision underlying the non-discrimination guarantees in India and Canada, I now turn to Fraser. In 1997, the Royal Canadian Mounted Police (‘RCMP’) introduced a job-sharing program to provide its members an alternative to taking leave without pay. Under the program, two or three RCMP members could split the duties and responsibilities of one full-time position, allowing each participant to work fewer hours than a full‑time employee. The petitioners, three female employees of the RCMP, enrolled in the job‑sharing program along with 137 other members. Most participants were women, and they cited unilateral responsibilities for childcare as their reason for joining the program. Ms. Fraser described feeling ‘overwhelmed’ as she tried to balance work and family; Ms. Pilgrim felt like she was ‘on a treadmill’; and Ms. Fox recounted the experience as ‘hell on earth’ (paragraph 7). The RCMP introduced a rule deeming the job-sharing position part-time work for which participants could not receive full-time pension credit. This policy was challenged by the petitioners as having a disproportionate, adverse impact on women, thus violating their right to non-discrimination under Section 15.

The Court began by identifying the shift away from a ‘fault-based’ conception of discrimination towards an ‘effects‑based model which critically examines systems, structures, and their impact on disadvantaged groups’. The shift, the Court observed, was premised on the recognition that discrimination is ‘frequently a product of continuing to do things the way they have always been done’ rather than an intentional, prejudicial act by an individual actor (paragraph 31). In other words, the Court identified discrimination as structural, in general. The Court then set out how parenting is structured socially in Canada. Citing evidence, the Court observed that the public sphere, including the workspace, continues to be built on the male norm, and requires an ‘unencumbered worker’ with no responsibilities of care. At the same time, the private sphere, including the home, continues to be built on the labour of women who unilaterally undertake a major share of parental responsibilities (paragraph 104). In other words, the gendered division of labour, a product of inequality between the sexes, is systemically built into the ‘everyday practices’ of Canadian society. While this recognition is significant in and of itself, how did it influence the claim under the non-discrimination guarantee?

The lower courts rejected the discrimination claim holding that while most employees who lost out on pension benefits due to job-sharing were women, the loss occurred due to the ‘choice’ of the petitioners to job-share. The Supreme Court in Fraser however used the understanding of discrimination as structural—in general and in the specific context of parenting—to contest this notion of ‘choice’. The Court observed that choice should not be assessed as against an ‘autonomous, self-interested and self-determined individual’. Rather, a ‘contextual account of choice’, taking into account the ‘social and economic environments’ in which choices play out is necessary. The Court then applied this contextual understanding of ‘choice’ to women’s decision to job-share. The Court argued that the decision to job-share is far from an ‘unencumbered choice’. Against the structurally unequal institution of parenting, the only available option for women—‘euphemistically labelled choice’—is to opt for forms of accommodation like job-sharing, which are associated with lower wages, fewer benefits, fewer promotional opportunities, and minimal or no retirement pensions. If so, penalising them for this ‘choice’ by denying them pension benefits both punishes them for inequality, and perpetuates such inequality by exacerbating women’s socio-economic disadvantage, and entrenching stereotypes about women as ‘bad employees’ who ‘do not merit or want more responsible, higher‑paying jobs because they will inevitably prioritize family over work’. Thus, the Court highlighted the ‘flaws of over-emphasising choice’ in the Section 15 enquiry: ‘by invoking the “choice” to job‑share as a basis for rejecting the s. 15(1)  claim, the [lower courts] removed the “challenged inequality from scrutiny, effectively taking it off the radar screen so as to circumvent examination of the equality issues at stake”’ (paragraphs 88-92).

This does not imply that in the absence of inequality, women would never opt to job share and spend time with their children. The Court in fact recognised this by holding that ‘differential treatment can be discriminatory even if it is based on choices made by the affected individual or group’. This is because discriminating on ground of certain choices—like the decision to parent—violates human dignity and is thus inherently discriminatory, independent of inequality (paragraphs 86-86). Thus, the decision to parent was implicitly recognised as valuable by the Court, and job-sharing was seen as facilitating the decision by removing the disadvantage associated with it in the employment sphere. However, the Court did not develop this line of reasoning, as it mapped onto a claim of discrimination on ground of parental status which did not need to be pursued in light of the gender discrimination claim (paragraph 114).   

In assessing ‘choice’ in light of the structurally unequal institution of parenting, the Court also recognised the reason why it was women who primarily made the ‘choice’ to job-share:

[a] number of structural conditions push people towards their choices, with the result that certain choices may be made more often by people with particular “personal characteristics”. This is a key feature of systemic inequality—it develops not out of direct statutory discrimination, but rather out of the operation of institutions which may seem neutral at first glance (paragraph 90).

This then brought the Court to the issue on indirect discrimination. It also normatively grounded the recognition of indirect discrimination as a necessary response to the interaction between seemingly neutral rules and prevalent structural inequality. Indirect discrimination, the Court held, occurs when ‘a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground…Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage’ (paragraph 30). The Court then set out a two-stage doctrinal test for assessing indirect discrimination.

At the first stage, the Court would enquire whether a rule, in effect, creates a distinction on the basis of a protected ground by having a ‘disproportionate impact’ on members of a group within the ground. The Court discussed the nature of evidence that could be used to prove this claim. On the one hand, evidence providing the ‘full context of the claimant group’s situation’ would be useful to demonstrate that ‘membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group’. However, the Court was careful to note that evidence on issues which predominantly affect certain groups may be under‑documented. As a result, claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony. On the other hand, evidence—including statistical evidence—about the outcome of the rule, or a substantially similar one, in practice could offer ‘concrete proof that members of protected groups are being disproportionately impacted’. The Court clarified that there is no universal threshold on what level of statistical disparity is necessary to demonstrate that there is a ‘disproportionate impact’. Declining to craft rigid rules, the Court held that it would vary depending on the case. The Court also noted that both kinds of evidence are not always required: ‘in some cases, evidence about a group will show such a strong association with certain traits—such as pregnancy with gender—that the disproportionate impact on members of that group will be apparent and immediate’ (paragraphs 50-72).

Once the petitioner establishes that the rule, in effect, creates a distinction on the basis of the protected ground, the second stage of the enquiry starts. At this stage, the Court asks whether:

the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage…The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion…[p]sychological harms…[p]hysical harms…[or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (paragraph 76).

Thus, a focus on impact or effect of the rule is built into both stages of the test: first to determine whether the rule draws a distinction on the basis of a protected ground, and second to assess whether the distinction perpetuates disadvantage and is thus discriminatory. Applying the test to the case at hand, the Court held that the rule denying full pension benefits to job-shares, though facially neutral, had a ‘disproportionate impact’ on women. The Court relied on statistics—from 2010‑2014, all RCMP members availing job-share were women, and most of them cited childcare as their reason for doing so—and other evidence—commission reports, academic work and judicial decisions—’about the disadvantages women face as a group in balancing professional and domestic work… because of their largely singular responsibility for domestic work.’ This evidence, the Court held, established the ‘clear association between gender and fewer or less stable working hours’, and proved that the rule drew a distinction in effect between men and women, satisfying the first stage (paragraphs 97-106). Coming to the second stage, the Court held that the denial of pension benefits to women exacerbates women’s historical disadvantage. It impacts them socio-economically, with evidence suggesting that the feminisation of poverty is linked to the disparities in pension policies. At the same time, it also entrenches ‘a long‑standing source of disadvantage to women: gender biases within pension plans, which have historically been designed for middle and upper‑income full‑time employees with long service, typically male’. In other words, it retains the ‘male pattern of employment’, continuing to construct the public sphere around the male norm. In light of these ‘far‑reaching normative, political and tangible economic implications’ of the rule, it was held to perpetuate women’s disadvantage, and thus discriminate against women (paragraphs 107-113).

Thus Fraser demonstrates, with great clarity, how understanding discrimination as a structural phenomenon translates into the functioning of non-discrimination guarantee. It allows the Court to resist the rhetoric of ‘choice’ which can be used to subvert claims of discrimination. It also offers a compelling normative grounding for the recognition of indirect discrimination. Fraser further lays out a cogent two-stage test for establishing indirect discrimination, indicates the forms of impact that are relevant and describes the nature of evidence which can be used to prove such impact. It therefore provides clear normative and doctrinal guidance to India in developing the constitutional jurisprudence on indirect discrimination.

Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: 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 (link) 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 (e.g., the introduction of structural mechanisms to ensure accountability)].


[This is a guest post by Ashwin Vardarajan.]


On 6 July 2020, the University Grants Commission (‘UGC’) released guidelines directing all colleges, universities and institutions of higher education to conduct final year/ terminal semester examinations before 30 September 2020 (‘Guidelines’). These Guidelines had been released at a time when the number of COVID-19 cases continued, and still do, to increase exponentially with every passing day; and have added to additional stress on universities, colleges and students across the country. Naturally, several petitions were filed before the Supreme Court (‘SC’) challenging these Guideline on several grounds, which were all collectively heard and decided by a three-judge-bench in Praneeth K and Ors. v. University Grants Commission [Writ Petition (Civil) No.724 of 2020] (‘Praneeth’) on 28 August 2020.

Among other things, two constitutional questions were raised against the Guidelines before the SC: first, whether the UGC demanding Universities to conduct examinations under Section 12 of the University Grants Commission Act, 1956 (‘UGC Act’) were referable to Entry 66, List I, Seventh Schedule (‘E-66’) of the Constitution of India (‘Constitution’); and second, whether the Guidelines violated the rights of students under Articles 14 and 21 of the Constitution. Not only does the SC – in its 160-page judgment – fail in its duty to logically appraise the existing position of law, it also adopts a surprisingly un-empathetic approach towards the plight of the students . Furthermore, the judgment has also created friction within the existing framework of law. This essay examines the two constitutional questions enumerated above.

E-66 and ‘standards of education’

The first issue was whether the Guidelines prescribed under Section 12 of the UGC Act were beyond the UGC’s competence referable to E-66. E-66 reads as follows:

Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions

The SC, inter alia, looked at the meaning of ‘standards for education’ – within the meaning of E-66 – through a catena of decisions and proceeded to determine whether the Guidelines also fell within the gamut of the entry. Section 12 of the UGC Act allows the UGC to undertake steps ‘for the determination and maintenance of standards of teaching, examination and research in Universities’, and the impugned Guidelines were issued under this provision. For the SC, use of the term ‘examination’ under Section 12 meant that the UGC is permitted by law to demand universities to conduct examinations through the Guidelines vide E-66 – as it stimulates coordination and determination of the ‘standards of education’, which also includes ‘standard of examination’. The SC understood Section 12 in light of the preamble of the UGC Act, and held that the phrase ‘standard of examination’, under Section 12, fell in line with the phrase ‘standard of education’ within the language of E-66, thus ruling in favour of the UGC (Praneeth, paras.57, 62).

Admittedly, a Constitution bench of the SC in Preeti Srivastava v. State of MP [(1999) 7 SCC 120] had set down several illustrations to define ‘standards of education’ under E-66. For them, ‘standards of examination’ – which included ‘the manner in which the papers are set and examined and the clinical performance is judged’ – was contained within the phrase ‘standard of education’. This remark, however, was made specifically in the context of how ‘examinations’ need to improve the ‘standards of education in an institution or college’ (Preeti Srivastava, SCC p.154-5).

This means that ‘standard of education’ under E-66 speaks of the ‘quality’ (as a synonym for ‘standard’) of examinations. Therefore, the standards of questions in an exam, their difficulty levels, who would correct and formulate the questions, and other aspects of like nature would ideally fall within the bracket of ‘standard of examinations’ as a taxonomy of ‘standard of education’ under E-66. But here, the Guidelines do not alter the examinations’ character to further ‘coordination or determination’ in ‘standards of education’. They merely mandated the Universities to organise and complete them before 30 September 2020. In this light, SC’s conclusion that the Guidelines are in consonance with E-66 through Section 12 of the UGC Act is far-fetched and, at best, incorrect.

The petitioners also relied on the SC’s decision in Modern Dental College v. State of MP [(2016) 7 SCC 353] (‘MDC’) – where it was categorically observed that ‘standard of education…would not include conducting  of  examinations’ as it does not affect any ‘standards’ – to establish that the Guidelines issued under Section 12 are not in referable to E-66. In MDC, the SC was, inter alia, tasked to determine whether ‘admissions’ were covered exclusively under E-66. While answering the question in the negative, the SC passingly noted that mere conduction of examinations would not be included under E-66 (MDC, para.101). However – and it is submitted, incorrectly – the SC rejected this assertion by the petitioners by distinguishing MDC on facts; and in their quest to do so, they observed the following:

62. The Constitution Bench in paragraph 101 has used the expression ‘not include conducting of examination etc.’  In the present case, there is no claim on behalf of the   UGC that it is the UGC which shall conduct the examination of the graduate and postgraduate students. The examinations are to be conducted by the respective Universities only. The above observations made by Constitution Bench in paragraph 101 as relied by learned senior counsel for petitioner, cannot be treated to be laying down any preposition that University Grants Commission has no competence to lay down any standards with regard to examination.

This clearly misses the point. Put simply, the petitioners never argued that the UGC could not conduct the exams. The petitioners rather argued against the Guidelines being in furtherance of coordination of determination of the ‘standards of education’ vide Section 12 of the UGC Act – which essentially meant that the UGC could not demand/force colleges to conduct examinations within a deadline. Demanding colleges and universities to merely conduct ‘examinations’ would not lay down the standards of how exams are to be conducted, in the sense that they do not alter the quality or determining principles surrounding the examinations. Thus, the SC’s misinterpretation (of arguments and law) led them to go beyond what E-66 has been historically interpreted to mean, and creates friction within the existing position of law. However, considering that the decision was specifically in regards to Section 12 of the UGC Act, a future bench might yet distinguish its reasoning on facts.

Fundamental Rights and Fundamental Omissions

The petitioners also contended that the Guidelines violates the students’ rights under Articles 14 and 21 of the Constitution. For the petitioners, prescribing a single date deadline for examinations throughout India treated ‘unequals as equals’, which amounted to an Article 14 violation. And in light of the exponential rise in the number of COVID 19 cases, it was contended that ‘lakhs of students, teaching and nonteaching staff will be forced to risk their health and lives of their family members if they are asked to participate in the Final year/ Terminal examination’ (Praneeth, para.76). The SC rejected both the contentions as follows:

First, for them, the UGC ‘rightly’ fixed a common deadline to maintain uniformity in the academic calendar and that their decision was taken after careful assessment of the situation throughout the country, which ensured the ‘welfare of students’ and protected the ‘career prospect’ of final year students. To them the ‘criticism’ of the Guidelines ‘that they are unreasonable does not inspire any confidence.’ (para.74-5).

Second, clause 6 of the Guidelines required Universities to ‘carry out the academic activities following necessary protocols/guidelines/directions/advisories issued by the Central/State Governments and MHRD/ UGC from time to time, in view of COVID-19’. This took the SC to the official memorandum (‘OM’) released by the HRD Ministry on 6 July 2020, which laid down the standard operating procedures universities and colleges would follow while conducting examinations. Upon reading the Guidelines read with the OM, the SC found it to be ‘abundantly clear that UGC, MHRD … are fully concerned with the health of all stakeholders’ and led them to the conclusion that Article 21 was not in violation (paras.81-2).

At the onset, one notes that the court rejected the argument by stating that the Guidelines were not ‘unreasonable’ or ‘manifestly arbitrary’. Article 14 concerns ‘equality’ before law, and courts must ideally acknowledge that the impugned law leads to unequal treatment before deciding whether such treatment was ‘reasonable’ or not; and they clearly did not do so although such treatment is violative of Article 14. Further, it is bewildering how setting one uniform date throughout the country for examinations was enough to treat unequals as equals in a reasonable way. UGC governs over thousands of colleges and several hundred universities throughout India, and not all those institutions would have students socially and economically capable of travelling to different cities for giving examinations, or afford safe means of transportation . This would, as the Delhi High Court in Madhu v. Northern Railway [2018 SCC OnLine Del 6660] has observed, have a ‘disparate impact’ on the disadvantaged students or lead to an operational inequality (also, Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971) and here). The SC inability to consider this issue through the aforementioned lens reflects a serious gap in reasoning, and a lost opportunity.

Further, the SC’s assessment of Article 21 was flawed, as their decision seems to have given precedence to the concerns raised by Government functionaries without actually appraising whether the life and personal liberty under Article 21 is at a threat of violation – which is an accepted ground for filing an Article 32 petition (and seems to have been the case here). Their reliance on the OM is further impeachable as it overlooks the risks students would be exposed to when they travel from one place to another to appear for the final year exams. The OM only lists the protocols colleges and universities are to follow after the students enter inside the campus to give their examinations. It does not consider the risks they would be exposed to before or after that – considering that many students would have to cross borders and cities to appear for their exams in person. The SC should have considered the ground realties that students would be confronted with – many of them have returned to their hometowns and would find it difficult to travel during times as transportation is a risky affair during an ongoing pandemic, thereby prima facie posing a threat to their lives and personal liberties.

Guest Post: On the Dangers of Reading Disparate Impact into Manifest Arbitrariness – a Response to Dhruva Gandhi

[This is a guest post by Shreyas A.R.]


Previously on this blog, Dhruva Gandhi had suggested that the Court in Navtej Johar attempted to read disparate impact analysis into the manifest arbitrariness test. In this piece, I will respond to Dhruva’s arguments by arguing why such a formulation is unnecessary, especially considering that the impacts analysis has been read into the reasonable classification test in Navtej itself, making the arbitrariness doctrine quite irrelevant for this purpose.

A brief recap is in order.

Reasonable classification and manifest arbitrariness are the two grounds which the Courts use to determine the constitutional validity of a measure when faced with an Article 14 challenge. Under the former test, a law will be held violative of Article 14 if it (a) classifies people without an intelligible differentia, and (b) the object sought to be achieved through the law has no rational nexus with the classification made. The manifest arbitrariness test, on the other hand, is well, arbitrary – in the sense that the Supreme Court itself has been unable to determine what the test really requires them to do. Indirect discrimination happens when a policy or a measure which appears neutral on the face of it puts members of a protected group at a disproportionate advantage as compared with the members of a cognate group. Disparate impacts analysis is the name given to the test to determine whether indirect discrimination has occurred.

For the purposes of this post, I will restrict myself to a specific question: does the test of manifest arbitrariness support a finding of indirect discrimination?

There are two reasons why it should not:

I. As Prof. Khaitan points out, indirect discrimination is structurally comparative, insofar as it disadvantages certain groups of people in relation to a cognate group. The arbitrariness test, on the other hand is a “test of unreasonableness of measures which do not entail comparison.” Take Nariman, J.’s framing of “manifest arbitrariness”, as laid down in Shayara Bano:

Manifest arbitrariness, therefore, must be something done capriciously, irrationally and/or without determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

None of the underlined words in the definition above seem to suggest that a comparative analysis could be possible under the test, which explains why manifest arbitrariness is also termed ‘non-comparative unreasonableness’. Seervai shares this suspicion, when he notes that the test “hangs in the air, because it propounds a theory of equality without reference to the language of Article 14”. Also note that when Navtej struck down Section 377 as being manifestly arbitrary, no equality analysis is done. Dhruva recognizes this objection, and argues that:

The words ‘excessive and disproportionate’ appear to refer to the impact of a measure and to that extent cover the disproportionate, adverse effect which constitutes disparate impact. The absence of an ‘adequate determinative principle’ is the absence of a justification necessary to sustain a measure of indirect discrimination. Therefore, it is possible for judges in Navtej to apply this doctrine to arrive at a finding of disparate impact.

What it means is this: in order to support a finding of indirect discrimination, the Courts will ask whether there is a reasonable justification, or an ‘adequate determinative principle’ for upholding the differentia, i.e. the disadvantaged and the cognate group. In Navtej of course, the Court does not ask what the differentia is while determining the arbitrariness – it does so when it is testing Section 377 under the classification test itself.

In my opinion, Dhruva’s interpretation of manifest arbitrariness resembles the rational nexus prong of the traditional reasonable classification doctrine, much less an entirely separate ground of review. Recall that under the rational nexus prong, the Courts will ask whether there exists a reasonable connection between the objectives sought by the impugned measure and the differentia. In the absence of a rational nexus, or an ‘adequate determinative principle’, the Court will strike down the law as being violative of Article 14.

II. Another objection I take to the manifest arbitrariness test is that it prescribes no thresholds for the test to be activated. This could possibly be attributed to Bhagwati, J.’s framing of equality as being antithetical to arbitrariness in Royappa:

Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…

My point is this: What capricious/ irrational/ without determining principle/ excessive/ disproportionate could possibly mean for the purposes of Article 14 has not been clarified by the Courts as yet. Why? By Royappa’s logic, the Court is not required to do so – the inequality is implicit in the arbitrariness of the measure itself. But even for the sake of playing the devil’s advocate, how do we determine what the implicit inequality is? There is no answer to this, and the Courts do not know either. This possibly explains why the Courts do not do much in terms of equality analysis while applying the manifest arbitrariness test. This enables individual judges to impose their own standards of morality to legislative review, which often results in the legislature’s wisdom being replaced by that of the judge, thus allowing the Court to enter into policy making under the garb of rights protection.

While this could occasionally have positive effects, such as Navtej where the Court applied constitutional morality to strike down a colonial law, it could easily go the other way as well. This objection is best exemplified by the Court’s judgement in the Bar Dancers case, where the Court chose to apply, and uphold the same colonial morality it had struck down in Navtej. (A detailed analysis by Anup Surendranath of all that was wrong with Bar Dancers is available here). This arbitrariness in application of the arbitrariness test does not bode well for equality jurisprudence, and can leave it at the mercy of the caprices of the judges who happen to be hearing the case.

Why does this matter?

Cases of indirect discrimination, and civil rights in general often involve inquiries into deeper questions on the moral goodness of a law, and what it means to be equal. On the other hand, the arbitrariness test divorces the content of equality from the inquiry. By characterizing discrimination as the mere result of an arbitrary state action, the Court loses an opportunity to afford judicial recognition to the various forms of structural inequality as they currently exist, (and as I will argue in the next section) update its jurisprudence accordingly, and possibly redeem itself. Navtej is transformative constitutionalism at its best– using constitutional morality to advance a notion of equality that could contribute in altering popular morality.

Having demonstrated the dangers of the arbitrariness test, I will now show that the reasonable classification test was used to make a disparate impact analysis in Navtej.

Typically, under the disparate impact test, when it is shown that a measure has led to disproportionate harm being caused to a group as against the cognate group, the Courts will hold that the right to equality has been prima facie infringed. It will then shift the burden to the defendant, and ask whether the measure nevertheless achieves its intended goals. In some jurisdictions, even if the defendant shows that there exists a legitimate justification for the practice, the plaintiff will prevail if it is demonstrated that there exists a better, alternate measure which can achieve the same goal without the disproportionate harm. On similar lines, Prof. Khaitan argues that the scope of inquiry under the nexus prong of the classification test could be expanded by asking the following questions:

Is the measure necessary to achieve the objective? Can the same objective be achieved using means that do not restrict fundamental rights?

I would suggest that Misra, C.J.’s reasons for finding Section 377 unconstitutional under the classification test employed the same analysis as well:

A perusal of Section 377 IPC reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse. That being so, now it is to be ascertained whether this classification has a reasonable nexus with the object sought to be achieved. The answer is in the negative as the non-consensual acts which have been criminalized by virtue of Section 377 IPC have already been designated as penal offences under Section 375 IPC and under the POCSO Act.

Per contra, the presence of this Section in its present form has resulted in a distasteful and objectionable collateral effect whereby even consensual acts, which are neither harmful to children nor women and are performed by a certain class of people (LGBTs) owning to some inherent characteristics defined by their identity and individuality, have been woefully targeted. [paragraph 237]

Misra, C.J.’s reasoning here is quite simple: not only is the objective of protecting women and children from carnal intercourse already achieved by other laws (thereby making Section 377 unnecessary for that purpose), the measure also has the effect of excluding the LGBT peoples, thereby violating their fundamental rights. Therefore, it is my opinion that Misra C.J. read in a crude disparate impact analysis into the classification test, albeit without using the same words. Elsewhere on this blog, Gautam has analyzed how Chandrachud J.’s critique of the classification test recognized indirect discrimination for the first time in Indian equality jurisprudence. Navtej has been celebrated for several reasons – expanding our understanding of equality and its jurisprudence should be one of them.

Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]


Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.

Gender Equality in the Armed Forces

[Editor’s 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.]


On this blog, we have discussed in some detail the judicial approach to gender discrimination under the Constitution. Two recent judgments of the Supreme Court – delivered by a bench of Chandrachud and Rastogi JJ – have made an important contribution to contemporary jurisprudence on the subject. Both concerned the intersection of service law and gender equality – and, in particular, gender equality in the armed forces, a particularly fraught and thorny topic.

Babita Puniya

Secretary, Ministry of Defence v Babita Puniya concerned the grant of Permanent Commissions in the Army. Section 12 of the Army Act prohibits the recruitment of “females” into the army except where – and to the extent that – the Central Government might allow. In 1992, the Union Government issued notifications allowing women to join certain branches/cadres of the army (all were non-combat roles). These notifications – which were intended to operate for a stipulated period of five years – were later extended in 1996, 2005, and 2006, along with promotional opportunities. Then, in 2008, the Ministry of Defence issued a Circular authorising the grant of Permanent Commissions [PCs] to women, but only prospectively, and only in certain cadres.

Adjudicating writ petitions challenging this, the High Court of Delhi held in 2010 that women who had entered the army on Short Service Commissions [“SSCs”], were entitled to PCs on par with their male colleagues. The Union of India appealed this decision to the Supreme Court. During the pendency of the hearing, it also proposed a separate policy for grant of PCs to women, which nonetheless was limited to staff positions, imposed different standards, as well as only applying prospectively.

Before the Supreme Court, the Union argued that this was a matter of policy – based on a consideration of “the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care” (paragraph 28), and that in any event, Article 33 of the Constitution allowed for the fundamental rights chapter to be restricted when it came to the Armed Forces. It also argued that “the Army has to cater for spouse postings, “long absence on account of maternity leave, child care leave” as a result of which “the legitimate dues of male officers have to be compromised”.” (paragraph 31). In a Written Note, the Union of India added to these submissions by referring – once again – to “pregnancy, motherhood, and domestic obligations”, differences in physical capabilities, the “peculiar dynamics” of all-male units, and issues of hygiene.

These submissions were rejected by the Court. Chandrachud j. began his analysis by noting that while Article 33 did allow for restrictions upon fundamental rights in the Armed Forces, it also made it clear that these rights could be restricted only to the extent that it was necessary to ensure the proper discharge of duties and the maintenance of discipline. On the other hand, from 1991, there had been an “evolutionary process” towards inducting women into the armed forces (paragraph 50) – to the extent that in the 2019 Policy Document submitted before the Court, even PCs (in certain fields) had been opened up to women. In fact, this created an internal contradictions within the submissions of the union of India, as:

The decision of the Union Government to extend the grant of PC to other corps in the support arms and services recognizes that the physiological features of a woman have no significance to her equal entitlements under the Constitution. (paragraph 52)

Going further, however, the Chandrachud J. noted that:

The submissions advanced in the note tendered to this Court are based on sex stereotypes premised on assumptions about socially ascribed roles of gender which discriminate against women. Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are „too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas. (paragraph 54)

On a similar basis, the Court also rejected the blanket prohibition upon the grant of PCs to women in command appointments (and restricted only to staff appointments), noting that the Army bore the burden of justifying such exclusion, and that in any event, it could only be done on a case to case basis (paragraph 67). In sum, therefore, it accepted the 2019 Policy, but (a) made it applicable across the board, and (b) removed its limited scope to staff appointments.

Annie Nagaraja

The case of Union of India vs Lt. Cdr. Annie Nagaraja – involving Permanent Commissions in the Navy – was somewhat more complex. According to Section 9 of the Navy Act, women are not eligible for enrolment in the Indian Navy, except where – and on such terms and conditions – that the Central Government might specify (Chandrachud J.’s judgment refers to an interesting piece of history – at the time of the drafting of the Navy Act in 1957, there was a strong dissenting note in the Parliamentary Joint Committee objecting to this exclusion of women).

Now – simplifying the position somewhat – under the Navy Regulations, one of the qualifications for being inducted into the navy on a Short Service Commission [“SSC”] is that the applicant must be an “unmarried male.” SSC officers may subsequently be granted Permanent Commissions [“PCs”] on the basis of vacancies and suitability. In 1991, the Union Government issued a notification opening up certain branches of the Navy to women. Women, therefore, were entitled to take up SSCs, and it was noted that the policy for the grant of PCs would be formulated subsequently. Subsequently, in 1998, by another Notification under Section 9 of the Navy Act, more branches of the Navy were opened up to women. Soon after that in, in 1999, in a communication from the Ministry of Defence, it was clarified that women could serve on board ships, and that the policy governing PCs would be that which was already stipulated in the Regulations (see above).

Then, in 2008, the MoD issued another communication, stating that PCs to women SSC officers would be considered prospectively, and limited only to certain branches. In other words, women who had joined the Navy as SSCs following the opening up of recruitment after 1991, would not be considered for PCs. It was this that triggered the initial challenge before the Delhi High Court and the Armed Forces Tribunal, before finally winding its way to the Supreme Court.

Chandrachud J. began his analysis by noting that both the 1991 and 1998 Notifications lifted the bar for enrolment of women into the Navy, in certain branches (without expressly limiting them to SSCs) (paragraph 60). Consequently, when in 1999 the Government stipulated that the normal Regulations would apply for grant of PCs (which made them conditional on vacancies, suitability, and a recommendation from the Chief of Naval Staff), it was obvious that this would “cover both men and women serving on SSCs (paragraphs 64 – 65, 67). Consequently, the 2008 communication – which did not refer to these previous notifications and communications – could not change that fact.

As with Babita Puniya’s Case, however, the judgment’s bite lay in the analysis that came after the hard work of service law was done. In a section called “The Stereotypical Sailor”, the Court noted that the government had attempted to justify its stand by arguing that sea-duties were ill-suited for women as “there is no return to base”, and that Russian naval vessels had no separate bathrooms for women (paragraph 72). These arguments were roundly rejected, with Chandrachud J. noting that “the contention that certain sea-going duties are ill-suited to women officers is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.” (paragraph 74), and that:

arguments founded on the physical strengths and weaknesses of men and women do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To accept the contention urged by the ASG would be to approve the socially ascribed gender roles which a commitment to equal worth and dignity of every individual belies. (paragraph 74)

The Court concluded by moulding the relief in accordance with the different positions occupied by different sets of claimants, on the basis of the legal position that eligibility for PCs flowed from the 1991 and 1998 Notifications, and that the 2008 Communication making PCs prospctive from that date, was not valid (to that extent).

Analysis

Both judgments raise a few interesting issues. The first is that they add to the growing body of jurisprudence that brings the anti-stereotyping lens to issues of gender discrimination. In both cases, differential treatment of men and women in the armed forces was sought to be justified by invoking stereotypes about physical and psychological capabilities – broad generalisations that reflected deep-rooted beliefs and assumptions about gender roles in society. As we have argued before on this blog, Articles 14 and 15 rule out discrimination based on such stereotypes and generalisations. While the Court’s historical record on this front – especially in the domain of service law – has been patchy, at least since 2007, there has been a more consistent application of the anti-stereotyping principle. These judgments, with their clear invocation of the principle, will make it even more difficult in the future for stereotype-based arguments to be justified in Court.

Secondly, these judgments reiterate that in a constitutional democracy, the Armed Forces are not – and cannot be – a rights-free zone. While Article 33 admittedly authorises the restriction of fundamental rights to the Armed Forces, any such restriction must be “necessary” for allowing the Armed Forces to fulfil their goals, and the burden of sowing necessity lies upon those who want to exclude the operation of fundamental rights. In both judgments, the Court was careful in how it navigated this thorny area: it reiterated the need for Article 33 to exist, while also ensuring that it could not be used as a sword to cut down the rest of Part III.

Thirdly, these judgments demonstrate an oft-neglected truth: that the Court ought not to bear the sole burden of articulating and enforcing fundamental rights. What is notable about both these cases is – as the Court itself noted in Babita Puniya – that the induction of women into the armed forces had been an evolutionary process that had begun in 1992. The State’s sweeping arguments about the unsuitability of women to be granted PCs, therefore, were undercut by its own evolving policy decisions. This made the task of the Court substantially easier: instead of forcing gender equality down the throat of a recalcitrant institution, it could simply point to how the institution’s own logic was at variance with the exclusionary arguments that it now put forward. Thus, instead of ending up in an adverserial situation – where the Armed Forces justified discrimination and the Court opposed it – what happened here was that the Court engaged in an immanent critique, essentially requiring the Armed Forces to follow their own policies to a logical conclusion.

Fourthly – and relatedly – this also shows, perhaps, the limitations of the possibility of reform through adjudication. Notably, the relevant provisions of both the Army and the Navy Act, which bar the recruitment of women into the Forces except where the government allows it – were not under challenge, and the Court was at pains to point out that fact, apart from also noting that the suitability of women for combat roles was not an issue about it. What would happen, however, if those Sections were to be challenged? Logically speaking, the anti-stereotyping approach – and, more particularly, the Court’s explicit rejection of blanket prohibition of PCs to women in command areas – clearly rules out the blanket restriction on recruitment in the Armed Forces (except where the government permits). Would that be a step to far for the Court to take, especially if the State and the Armed Forces were to take the defence of national security considerations? That would be interesting to see, but at the same time, the Army’s own opening up over the years – combined with the Court’s incremental approach in these cases – probably obviates the immediate imperative for more radical challenges.