Guest Post: Navtej Johar v Union of India – On Intersectionality (We’re not quite there yet)

(This is a guest post by Gauri Pillai).

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The theory of intersectionality, within feminist jurisprudence, views individual identity as arising from an interaction of several grounds, such as caste, sex, disability, age, religion, race, sexual orientation etc. Originating in the context of understanding the identities of Black women as being shaped by both gender and race, the theory recognises that women are not a monolith, facing a single form of oppression; instead their multiple social identities interact, resulting in unique forms of marginalisation. Intersectional discrimination therefore signifies discrimination suffered on the basis of more than one personal characteristic. Such discrimination is not merely a sum or overlap of discriminatory treatment experienced due to individual grounds, but is instead characterised by a “uniqueness and sharedness” arising from the intersection of the various grounds. For instance, a Dalit woman with disabilities shares experiences of discrimination with persons with disabilities, Dalit individuals and other women. However, she also faces a distinctive form of discrimination due to the interaction of her multiple identities, which is more than a mere combination of discrimination on account of disability, caste and sex/ gender.

Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. In interpretation of this provision, courts have placed emphasis on the word “only” to imply that only discrimination on a single ground is suspect under Article 15, thus excluding intersectional discrimination from its scope. For instance, the Calcutta High Court in Mahadeb v Dr BB Sen held, “The impugned law must be shown to discriminate because of sex alone. If other factors in addition to sex come into play in making the discriminatory law, then such discrimination does not, in my judgment, come within the provision of Article 15(1) of the Constitution”. In Dattatraya Motiram v State of Bombay, the Bombay High Court accepted a form of discriminatory treatment as constitutionally valid, arguing, “If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations”. This trend was confirmed in Air India v Nergesh Meerza, where the Supreme Court stated, “[W]hat Articles 15(1) and 16(2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.”

However, previously on this blog, Shreya Atrey has argued that this misinterprets the meaning of the word “only”. Relying on the placement of this word within the text of Article 15(1), which says “on grounds only of” rather than “only on grounds of”, Atrey points out that the word “only” refers to the inappropriateness of certain personal characteristics or grounds being relied on as the basis of discrimination, and does not indicate the requirement of single-ground claims. Further, interpreting “only” to permit solely claims invoking a single ground of discrimination is a partial reading of Article 15(1), omitting to taking into account the phrase “or any of them” which would allow claims to be made under several grounds.

Justice Chandrachud’s concurring opinion in Navtej Singh Johar v. Union of India dismisses the reliance placed on “only” by cases like Nergesh Meerza as a “formalistic interpretation of Article 15” which would render the “constitutional guarantee against discrimination meaningless” [Chandrachud J., ¶ 36]. Though Chandrachud J. does not offer a reinterpretation of the text, as suggested by Atrey, the Court does state that discrimination based on “sex and another ground (‘sex plus’)” would fall within the ambit of Article 15 [Chandrachud J., ¶ 36].

This seems to indicate clear judicial approval for the theory of intersectionality. However, Chandrachud J. bases his observations on the need for recognising intersectional discrimination under Article 15(1) on a critique of Nergesh Meerza, holding that the approach adopted by the court in the case was incorrect since it failed to adopt an “intersectional understanding of how discrimination operates” [Chandrachud J., ¶ 41]. A close reading of Nergesh Meerza, on the other hand, shows that the case concerned discrimination solely on ground of sex. Nergesh Meerza involved a challenge to certain provisions of the Air India Employee Service Regulations, which created significant disparity between male and female crew with respect to service conditions. The Supreme Court, relying on these very differences in service conditions between men and women, dismissed the claim under Article 15(1), stating the discrimination was on ground of “sex coupled with other considerations”. The Court however failed to question the basis on which these “other considerations” were differentially allotted. As Bhatia argues, especially after finding that the nature of work performed by male and female members was similar, the Court should have held that the initial classification, relying on which these “other considerations” were decided, was based on sex. As pointed out by the female crewmembers in Nergesh Meerza, “the real discrimination was on the basis of sex which was sought to be smoke screened by giving a halo of circumstances other than sex”.

Thus, the dictum of the Supreme Court in Nergesh Meerza was certainly incorrect. However this was not due to a failure to account for intersectional identities of women. Rather, it was because the Court did not recognise that the constitution of the separate cadres and fixing of differential service conditions were themselves based on sex, such that the “other considerations” which the Court declared, when coupled with sex, excluded the claim from the scope of Article 15, were products of sex discrimination. Nergesh Meerza is thus not an example for a “sex plus” claim of discrimination; instead it is a case of sex discrimination where the Court omitted to consider that the “other considerations” were also incidents on discrimination on ground of sex.

The Supreme Court, in Navtej Johar, reversed this trend by stating that if the “other considerations” being relied on are stereotypical understandings of the notions of sex, or factors which have a disparate impact on the members of one sex, these cases would not be distinguishable from discrimination solely on ground of sex. For instance, citing Anuj Garg v. Union of India, the Court pointed out that stereotypes regarding socially ascribed gender roles cannot be used as plus factors to argue that discrimination was not only on ground of sex [Chandrachud J., ¶ 41]. Similarly, a rule that only people six feet or more in height would be employed in the army cannot be excluded from the ambit of Article 15(1) as being based on sex and height, since height is often an incident of sex, and classification on the basis of height would have a “disproportionate impact” on women [Chandrachud J., ¶ 36]. In this manner, the Chandrachud J. in Navtej Johar deviated from the dictum in Nergesh Meerza, where the Court adopted a formalistic interpretation of sex discrimination as a facial classification between men and women, relegating the other manifestations of sex discrimination to “other considerations”.

To this extent, the approach of the Court in Navtej Johar (through the opinion of Chandrachud J.) represents a welcome shift in the interpretation of “only” under Article 15(1). Atrey argues that the technical interpretation of “only” relied on so far by courts excludes both a contextual and an intersectional analysis of discrimination. By going beyond cases of facial classification between men and women to include other manifestations of sex discrimination- such as the use of stereotypes- the Court in Navtej Johar places sex discrimination within the existing socio-political context by including within the ambit of Article 15(1) the gendered aspects of sex discrimination. In this way, the Court brings in a contextual lens to the analysis of discrimination under Article 15. However, the examples relied on by the Court, as identified above, are incidents of discrimination on ground of sex, rather than intersection of sex with other grounds such as race, disability, age etc. This implies that the Court in Navtej Johar did not go the entire way in recognising intersectional discrimination, despite references to the intersectional nature of sex discrimination [Chandrachud J., ¶ ¶ 36, 41].

Adopting a more holistic view of sex discrimination, as the Chandrachud J. has done in Navtej Johar, is different from acknowledging the unique forms of oppression created by the intersection of multiple identities, of which sex is only one. For instance, in Shayara Bano v Union of India, the claim of discrimination was brought by Muslim women. Though the decision of the Supreme Court in the case has been critiqued (here and here) for failing to account for intersectional discrimination, the case illustrates how multiple grounds- sex and religion- interact to create a distinctive form of disadvantage. Shayaro Bano is thus an example of a claim of intersectional discrimination; Nergesh Meerza is not. The Supreme Court in Navtej Johar appears to have conclusively established a contextual approach towards analysing claims of discrimination under Article 15(1) by rejecting the interpretation of “only” presented in cases like Nergesh Meerza. However, whether an intersectional lens, which would not just allow but also recognise the distinctiveness of a claim invoking multiple grounds under Article 15(1), has been adopted remains to be seen.

In sum, Justice Chandrachud’s judgment in Navtej Johar recognises the concept of contextual discrimination and acknowledges the concept of intersectional discrimination; however, his actual reasoning is limited to the former. For a judgment that incorporates the concept of intersectional discrimination within the framework of Article 15(1), we may have to wait a little longer.

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(The writer has recently completed her BCL degree from the University of Oxford.)

Guest Post: Inclusive Pluralism or Majoritarian Nationalism: Article 15, Section 377 and Who We Really Are

(This is a guest post by Tarunabh Khaitan, who is an Associate Professor of Law at the Universities of Oxford and Melbourne.)

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The guarantee of non-discrimination under Article 15 of the Constitution is not an essential weapon to fight the criminalisation of victimless consensual sexual acts between adults under section 377 of the Indian Penal Code. The ridiculousness of such criminalisation is so patent that even a deferential quest for reasonableness under Article 14 of the Constitution will find the criminal provision wanting. Nor is the provision likely to pass muster with the guarantee of personal liberty and privacy under Article 21. Indeed, there is even a view that no constitutional provision needs to be invoked—that s. 377 can be defanged through a mere statutory reinterpretation in light of changes social facts.

Judicial minimalism (and, the related notion of constitutional avoidance)—the idea that if a case can be decided on narrower grounds, courts should avoid bringing the big guns out—is usually wise counsel. The case before the Supreme Court, however, is unusual. This is an instance where the Court has a constitutional obligation to unrelentingly apply the full moral force of the antidiscrimination principle embedded in Article 15 against s 377, in addition to the arguments mentioned above. There are at least two reasons why judicial minimalism will be unwarranted in this case.

The first reason is institutional. The Court needs to atone for its own institutional sin in recriminalising homosexual conduct by overruling the constitutionally sound judgment of the Delhi High Court. This is an opportunity for the Court to apologise to the Constitution, for its abject failure to defend its values. The Court also owes an apology to millions of innocent Indians who it rebranded as criminals in 2013. It much acknowledge, loudly and clearly, the violence its judgment visited on so many lives. It needs to recognise that it acted as an organ of a colonial state when it criminalised people based simply on who the were, and mocked their quest for justice as a claim for ‘so-called rights’. The Court inflicted a material injury and an expressive wrong on the LGBTQ people of India. The correction must go beyond the material too, and include an expressive remedy. The Court must make sure that its apology is full-throated, and not muted. One way to do so is to un-condemn and celebrate the difference of those it hurt and insulted under the pluralistic ambit of Article 15.

The second reason for an expansive reasoning is provided by the current political context. In most cases, the primary judicial objective is to reach a just outcome under law. But some cases come to acquire an expressive significance far beyond the remedy the court orders. The litigation over s 377 has shaped our political discourse over the last two decades in ways that would have been unimaginable for activists who first challenged the provision at the start of the century. Within fifteen years, the country moved from not talking publicly about homosexuality to a general election where major political parties promised decriminalisation in their election manifestos. What the Court says in this judgment is going to matter as much as what it does through its order.

But the expressive salience of a case on discrimination against a politically disempowered minority, based purely on the prejudices of a majority, goes beyond the issue of LGBTQ rights. Indian constitutional democracy today is at a crossroads. Its constitutional commitment to an inclusive, composite, secular ethos has never been challenged more seriously than it is today. At a time when sectarianism and majoritarian nationalism are seeking to exclude all sorts of minorities from public life and equal citizenship, the Court has a duty to emphasise the inclusive and pluralist rather than majoritarian character of our democracy. Inclusiveness and pluralism lie at the heart of Article 15, which can be the surest vehicle for the Court to lend its institutional authority to the salience of these ideas in our constitutional identity.

A robust development of the Article 15 jurisprudence, along the path showed by the Delhi High Court in 2008, is more urgent than ever. The Court owes a promise to Rohith Vemula that the judiciary would rigorously examine exclusionary and discriminatory practices. It has a duty to all those who have been lynched, harassed or persecuted for being different that Article 15’s promise of defending their personal autonomy and dignity is not empty rhetoric. It is true that the Court alone cannot deal with rampant discrimination. But its strong endorsement of the antidiscrimination principle could provide a boost for political efforts to enact a comprehensive antidiscrimination law, at least in some states to begin with.

It is true that judicial minimalism and constitutional avoidance are not typical features of the jurisprudence of the Indian Supreme Court. The Court has often been jurisprudentially expansive, while being remedially minimalist. But, in politically sensitive cases, it has found judicial minimalism to be strategically useful (its judgment in the triple talaq case, eschewing all mention of Article 15, is a case in point). Such strategic minimalism can often be important for preserving a court’s legitimacy. In the 377 case, however, it is not just judicial legitimacy that is at stake, but the very nature of our constitutional identity.

In his excellent book on constitutional identity, Gary Jacobsohn identifies the phenomenon of disharmony in constitutional identity (p 87): “Sometimes [disharmony] exists in the form of contradictions and imbalances internal to the constitution itself, and sometimes in the lack of agreement evident in the sharp continuities that frame the constitution’s relationship to the surrounding society.” An inclusive pluralism has, largely, been the dominant narrative in India’s constitutional identity. But seeds of disharmony have always existed—internally, in the form of the cow slaughter directive of the Constitution, and externally in the deeply inegalitarian and sectarian social structure the Constitution has tried to transform. As Jacobsohn argues, constitutional disharmony carries within it the seeds of constitutional change.

Make no mistake: the dominance of inclusive pluralism as the defining feature of our constitutional identity itself is at stake. Majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for the very soul of our polity. It doesn’t just seek to win the game, it is trying to change the rules of the game. Which side the Court comes down on, and how robustly, may not determine, but will surely affect the outcome of this battle over defining who We, the people of India, really are.

Personal Laws and the Constitution: Why the Tripal Talaq Bench should Overrule State of Bombay vs Narasu Appa Mali

(From this Thursday, a Constitution Bench of the Supreme Court will hear arguments about the constitutionality of the Muslim personal law practices of triple talaq, nikah halala, and polygamy. In this guest post, Praharsh Johorey argues that in doing so, the Court ought to overrule the long-standing precedent of State of Bombay vs Narasu Appa Mali, which exempts personal laws from constitutional scrutiny.)

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On the 11^th of May, the Supreme Court will begin hearing arguments on the petition concerning – among other things – the constitutionality of the Muslim divorce process commonly known as the ‘Triple Talaq’.

Before the Court, a number of interveners have canvassed a wide range of propositions. In this post, however, I shall focus on the specific issue of “instant Triple Talaq” (where a man can divorce his wife by unilaterally uttering the word “talaq” thrice in succession), and proceed on the assumption that such manner of divorce is illegal and unconstitutional. Now, in order to declare it unconstitutional, the Supreme Court can do one of two things. First, it can adopt a narrow approach in accordance with J. Krishna Iyer’s plea in A. Yousuf Rawther v. Sowramma, and hold that the instant Triple Talaq practice is not part of Muslim Personal Law and therefore excluded from the Muslim Personal Law (Shariat) Application Act, 1937. Second, it can take the broader approach, and subject all personal law to the test of Constitutional validity, and principally determine the constitutional validity of the practice. To take the broad approach, however, it will have to overrule a 1951 Bombay High Court judgement State of Bombay v. Narassu Appa Mali, which held that personal laws are not subject to the rights enumerated under Part III of the Constitution.

In this post, I will be dealing specifically with the Narasu judgement, and the need for the Supreme Court to overrule this deeply problematic constitutional pronouncement.

Narasu Appa Mali

The central question in Narasu related to the validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946. The primary contention against the Act was that it was in breach of Articles 14 (Right to Equality) and Article 15 (Prohibition of Discrimination), because the law discriminated between a Hindu and a Muslim male with respect to their respective rights (or lack thereof) to engage in polygamy. Article 25 (Right to Freedom of Religion) was also argued, on grounds that this Act infringed with the right of Hindus to practice polygamy, which was argued as forming part of Hindu custom.

However, under the Constitution only a ‘law’ or a ‘law in force’ as defined in Article 13, which invalidates all laws that are in derogation of fundamental rights, can be subject to the rights under Part III. Therefore prior to examining the aforementioned contentions, the Court undertook to answer the more fundamental question of whether Personal Laws (such as the Act in question) are ‘laws’ or ‘laws in force’ under Article 13.

The Division Bench of C.J. Chagla and J. Ganjendragadkar unanimously answered in the negative, with both judges giving somewhat distinguishable reasoning for their decision. I will examine both separately.

Personal Laws as ‘Laws in Force’

Justice Gajendragadkar’s justification is based on a narrow interpretation of Article 13, stated in paragraphs 19 and 20 of his separate opinion:

‘The expression ‘laws in force’..refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India. 

His argument thus proceeds on two grounds. First, that Article 13(1) only contemplates statutory laws, and second, that personal laws cannot be considered statutory law and are therefore outside the scope of Article 13.

Now, to understand the scope of ‘laws in force’ under Article 13(1), we must first look to Article 13(3)(b), which defines the term:

“… ‘laws in force’ includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Respectfully, J. Gajendragadkar’s interpretation is in direct conflict with the wording of 13(3)(b), as it employs the term ‘includes’ in the definition of the term ‘laws in force’, thereby broadening its scope. J. Agarwal, in P. Kasilingam v. PSG College of Technology states that the word ‘includes’ enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import, but also the things as the clause says they shall include. More recently, J. Jain in Bharat Cooperative Bank (Mumbai) v. Employees Union agreed with the dictum of Kasilingam, by holding that ‘includes’ makes the definition enumerative, in that the term defined will retain its ordinary meaning but its scope will be extended to bring within it matters, which in its ordinary meaning may or may not comprise.

Applying this to the interpretation of the definition of ‘laws in force’ under Article 13(3)(b), the ‘ordinary’ or ‘natural’ import of the term must be given effect to. As per its dictionary meaning, a ‘law in force’ is any principle to which parties are legally bound, and which can be relied upon by a Court to resolve disputes. Interestingly, J. Gajendragadkar’s attributes all of these facets to ‘personal law’ in India, stating:

‘There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview.’ However, the expression ‘ laws in force’ is, in my opinion, used in Article 13(1) not in that general sense.’

It remains unclear what specific import he sought for the term ‘general’ to have in this context, and no clear reasoning as to why he resultantly narrows the scope of Article 13. This interpretation is plainly not supported by the enumerative wording of Article 13(3)(b), and it is his own characterisation of personal laws that places it well within the scope of the ordinary meaning of ‘laws in force’.

Even if one were to accept the contention that Article 13(1) is limited only to statutory pronouncements, for the Narasu dictum to withstand scrutiny, it must be established that there exists a clear distinction between ‘law’ under Article 13 and personal laws. To this end, J. Gajendragadkar states:

It is well-known that the personal laws do not derive their validity on the ground that they have been passed or made by a Legislature or other competent authority in the territory of India. The foundational sources of both the Hindu and the Mahomedan laws are their respective scriptural texts.

‘…the duty of a Judge who is under the obligation to administer Hindu law is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal. In fact, the different schools and sub-schools of Hindu law which are recognised by our Courts are distinguished solely on the ground of the different texts to which they owe allegiance.’

This argument proceeds on the contention that personal laws are based upon an untrammelled application of the scriptural texts ‘to which they owe their allegiance.’ However, this reasoning ignores the significant role played by the Judiciary and the Legislature in moulding religious texts in light of modern constitutional principles – which have in several instances been accepted by the schools that are responsible for their application. As a result, the High Court’s singular premise for excluding personal laws from Article 13 is unfounded.

The Evolution of Personal Law in India

‘We ought not to be guided by Hindu law, which is a new introduction of our own.’

• Mountstuart Elphinstone,

This contention can be demonstrated through an examination of how personal law came to be defined by religious practice in the colonial era. The British administration took upon itself the duty of both defining and adjudicating personal law, which required that it determine which practices would constitute law, and which would simply have social force. (Sturman, 2012) For this purpose, Courts, the Privy Council in particular, developed a three-step test to determine what constituted religious custom – that any principle must be ancient, invariable and supported by clear evidence. This made the establishment of any custom invariably difficult, leading to the greater homogenisation and enforcement of Brahmanical law by Courts, irrespective of the diverse religious leanings of parties to a dispute. (Sturman) The British insistence on ‘clarity, certainty and definitiveness’ was alien to Hindu and Islamic traditions, whose traditions and custom were ‘not of a nature to bear the strict criteria imposed by British lawyers.’ (Galanter, 1968) The establishment of the High Courts in India in 1864 also rendered null the position of ‘law officers’, like Shastris and Maulvis, who were responsible for offering textual interpretations and opinions pertaining to personal law.

This process also replaced the idea that socio-religious polities were based on changing beliefs and faith with the authority instead granted to objective experts, like Courts, to identify fixed beliefs determined at the time of the origins of such polity. For example, the Aga Khan case (High Court of Bombay, 1866), treated the Khoja community as Muslim and the Pushtimargis as Hindu instead of them being considered as independent polities within these larger faiths. The consequence of this was clear – polities that previously determined their own idea of the religious traditions in which they engaged were now subjected to the Western conception of Hindu and Islamic law. (Shodan, 2001)

Therefore, the idea that religious/personal law exists as it was written in the Smriti or the Quran ignores the intricate systems of ‘contractual governance’ within religious sects that enabled them to re-interpret text in light of changing societal norms. By taking away the ability of these local collective structures to make decisions for themselves, these structures were compelled to surrender all decision-making, concerning personal law, among other things, to the Imperial government which made decisions in light of international or a collective mode of logic – vastly different from the ones followed at the local level. The movement to bring the local community into the public sphere was thus not an organic one, and was done for the sole purpose of making them more amenable to coexistence with societal and religious norms defined by the British. Thus, J. Gajendragadkar’s notion of a clean and inextricable link between religious texts and personal law is deeply ahistorical and largely a colonial construct, as it denies entirely the crucial role played by customary law at the local level in developing this law, and subsequently shaping its application.

We can now turn to C.J. Chagla’s conception of the scope of law under Article 13, and where personal laws may be placed in this spectrum.

‘Expressio Unius Exclusio Alterius’ under the Constitution

It was argued before the bench that personal law can even be considered as ‘custom or usage having the force of law’ under the definition of law under Article 13(3)(a). J. Chagla dismisses this contention:

‘.Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.’

Evidence of this difference, J. Chagla argues, can be found in the inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) and Article 372 (Power to Adapt and Modify laws); the implication being that the drafters did not intend to subject personal laws to Constitutional provisions, because otherwise it would be ‘unnecessary to specifically provide for them.’

This reasoning is flawed for a number of reasons. His distinction between custom and personal law is, in my opinion, based on a misguided reading of the Constitution. This can be proven through an examination of the very basis of the argument, the principle of expressio unius exclusio alterius, i.e. the expression of one excludes the other, and its present application.

This principle is used sparingly as a tool of interpretation, being described as a ‘dangerous master’ because the conditions in which it can be conclusively applied remain unclear. Guidance is provided by the Calcutta High Court in Union of India v. BC Nawn, which held that primary purpose of this principle is when a provision in a statute expressly mentions one or more particulars, but does not mention some others, then those others not mentioned are taken to have been excluded from the provision. J. Chagla stretches the application of this principle far beyond this contemplation to encompass all provisions of the Constitution – holding in effect that any Constitutional declaration specifically relating to personal law is further evidence of its exclusion as a ‘law’ under 13(3)(a). This reading cannot be reconciled with the actual wording of Article 13, because it does not define ‘law’ or ‘laws in force’ in an exhaustive manner, with the broad import of the word ‘including’ in the definition of both terms exemplifying the intent of the drafters not to subject them to restrictive tools like the exclusio principle. It should not be said, as a result, that Articles relating to personal law under the Constitution occupy a field independent of Article 13.

This underlying logic of this principle is made weaker in light of its problematic implications. Take for example Article 23, which establishes a right against discrimination on grounds of religion, caste or class. As per J. Chagla’s reasoning, the inclusion of a specific right against caste-discrimination would signify its exclusion from the scope of Article 14, which establishes a right to equality. However, this is apparently untrue, with the Supreme Court holding in a catena of decisions that certain provisions in the Constitution must be read together, due to the broad wording of certain provisions under Part III, and the ‘abundant caution’ of the drafters lead to the inclusion of certain provisions. A relevant example is that of the inclusion of Article 13 itself. C.J. Kania in his decision in A.K Gopalan v. State of Madras wrote that even in the absence of Article 13(1) and (2), Courts would still have the authority to strike down unconstitutional enactments; but the drafters still included Article 13. This inclusion, he argues, demonstrates the exercise of ‘abundant caution’ by the Constitutional drafters to ensure that all prospective laws and laws already in force were immediately invalidated, irrespective of subsequent litigation. Similarly, the inclusion of Article 17, which criminalises untouchability, can be said to have been included on similar grounds, to enable the State to impose adequate sanction upon those engaging in the practice, without having to wait for its declaration as being ultra vires.

Conclusion

Therefore, one would hope that the Supreme Court recognises this, and overrules Narasu, in light of both its incorrect reading of Article 13, as well as the ahistorical understanding of the distinction between personal law and ‘laws in force’ as recognised under the Constitution. Only if the Court undertakes such an exercise can we move beyond the current trend of judicial ‘cherry-picking’ in relation to what religious doctrines are and are not in fact personal law, and principally examine the legal validity of these principles in light of Part III. Here’s to hoping.

 

Taxing Sanitary Pads and Article 15(1) of the Constitution: Some Clarifications and Responses

In the last post, I argued that taxing sanitary pads non-trivially disadvantages women, on the ground of their sex, and consequently, violates Article 15(1) of the Constitution. There have been a substantial number of responses to the argument, both in the comments section of the blog, and elsewhere, which have pushed me to clarify and refine some of my thinking that went into the original post. In this post, I shall attempt to respond to some of the points that have been made.

“Sex” is Not a Biological Fact

I should start by clarifying that my original post assumed “sex” to be both binary, and a given, biological fact. We now know that this framing of “sex” is just that: an assumption, or a social construction. Without getting into complex terminological debates about the difference between “sex” and “gender”, it was correctly pointed out in the comments that in NALSA vs Union of India, the Supreme Court has (at least implicitly) accepted that “sex” under Article 15(1) of the Constitution is as much a matter of personal identification, as it is a matter of biology. It was also pointed out that the argument bypasses the rights of transgender individuals.

I accept the thrust of these criticisms, insofar as there exist individuals who do not identify as women, but who also menstruate, and require sanitary pads. For the purposes of this post, however, while acknowledging this reality, I want to continue using “sex” in terms of a distinction between men and women – only for the reason that the argument depends on working within existing law and jurisprudence, both of which are committed to the binary, objective understanding of “sex”. Once we succeed in establishing the case for sex discrimination on the old, classic model, we can then explore how we might extend it to our present, more nuanced understandings of “sex” and “gender”.

The Gendered Implications of Taxation Regimes

At the heart of a lot of comments disagreeing with my argument, I think, lies a sense of unease with running together tax law and discrimination law. We are accustomed to thinking of taxation as a sovereign function, which conceptually depends upon the State having to make discretionary choices about how best to raise revenue, through a system of financial incentives and disincentives. Taxes, ultimately, are guided by economic considerations and an assessment of goods and services, not of people. Consequently, while it is possible that tax might be used as a weapon of discrimination (jizya is a classic example) – and indeed, both the American and the Indian Supreme Courts have noted the possibility of punitive taxation being used to stifle the free press – this is limited to exceptional cases where the State is clearly acting with hostile purpose.

I would suggest, however, that according taxation law a high threshold immunity from the norms of discrimination would be a mistake. On the contrary, taxation gives the State such a powerful weapon to mould behaviour, that we should be specially solicitous of testing a taxation regime against constitutional norms. Goods and services are intrinsically linked to peoples’ conduct, choices, and ways of living. In my last post, I took the example of a tax levied only on crucifixes: while this might be dismissed as a very obvious, and unlikely example, there are other, indirect ways, in which tax regimes can be discriminatory.

An excellent judicial example of this is the judgment of the Canadian Supreme Court in Symes vs Canada. In Symes vs Canada, it was argued that disallowing childcare expenses as “business deductions” under the Income Tax regime was discriminatory on grounds of sex. The Appellant argued that, in view of the fact that women bore a disproportionate burden of childcare within the family, and consequently, were far more likely to need to hire child-carers in order to pursue their business interests, refusing business deductions amounted to sex discrimination. More broadly, the Appellant’s argument attacked the central assumptions of the Income Tax regime, which had been enacted at a time when gender roles were more rigid, and it was presumed that businesspeople would be male. For instance, under existing precedent, expenditures on taking clients out to golf, or to dinner, were deductible as business expenses, on the ground that these expenditures bore a proximate relationship with promoting the assessee’s business. Under that logic, however, paying a child-carer to free up time to pursue business was equally proximate. The only reason why it was not allowed as a business deduction was that the Income Tax regime was founded upon the assumption of a clear separation between the home and the business world, and was unable to envisage a reality in which women would be primed to pursue business while continuing to be burdened with responsibilities of childcare.

We can therefore see how a seemingly innocuous element of tax policy – disallowing childcare expenses as business deductions – was based upon a set of assumptions that were presumptively sex discriminatory. Ultimately, by a 7 – 2 majority (interestingly, the only two women on the bench were also the two dissenters), the Supreme Court rejected the case of the appellant; but it did so on the technical ground that the appellant had not shown that women bore a disproportionate share of the expenses on childcare (as distinct from responsibilities of childcare). What remains important, however, is that both the Majority and the Dissent(s) agreed that the taxation regime could – and often did – impact gender equality in both direct and indirect ways.

Condoms, Aftershave Lotion, Lipstick, Underwear, and Disadvantage

Many of the objections to my arguments took the form of counter-examples: if I was resting my case against taxing sanitary pads on the proposition that only women used them, then by the same logic, (men’s) condoms, (men’s) aftershave lotion, (women’s) lipstick, and (women’s) underwear should also be exempt from taxation under Article 15(1).

I should start by clarifying that there are two responses to this that I am not relying upon. First, I am not relying upon Article 15(3) of the Constitution. As I have argued before on this blog, I do not believe that Article 15(3) provides a carte blanche to the State to pass any law benefiting women at the expense of men. Article 15(3)’s location within the broader anti-discrimination clause clearly indicates that it is limited to saving those laws that benefit women with a view to remedying historical and structural discrimination. Consequently, if the principles of my argument applied equally to sanitary pads and to aftershave lotion, then 15(3) could not be a ground to legitimately deny men the benefits of tax-free aftershave.

Secondly, I am not resting my argument purely on a distinction between essential items and luxury goods. That distinction is important, but – as I shall go on to show – it is better understood as an argument not about essentials/luxuries, but about disadvantage.

In the last post, I had argued that the key to my argument under Article 15(1) is a shift from understanding discrimination law as being about a strict comparison between two classes, to understanding it as being about remedying historical and structural disadvantages. These disadvantages – which could take the form of deprivation of goods and services, or humiliation and insult – were located around the sites – or grounds – set out by Article 15(1): sex, race, religion etc.

I should clarify what I mean by this: I do not mean that we should stop thinking of discrimination as a question of equality. However, the kind of equality that is at stake when we think of discrimination law is – in the words of the South African Constitution – “the full and equal enjoyment of all rights and freedoms.” The shift is a subtle, but important one: our enquiry is now not whether “X” action applies to “A”, but not to “B” (the strict comparator approach, under which sanitary pads do not raise a discrimination issue because – as a commentator pointed out – men do not menstruate); but rather, does “X” action affect “A’s” “full and equal enjoyment of all rights and freedoms” in a manner that it doesn’t affect “B’s”.

Now if we understand a sanitary pad tax as – effectively – a tax on menstruation, then the applicability of the second framing of discrimination (as disadvantage) should become easier to analyse. It is important to start by noting the well-documented social, cultural, and economic role played by perceptions of menstruation in upholding (unequal) gender roles in society: many societies have viewed menstruation as a symbol of impurity and inferiority; but perhaps more importantly for our purpose, the physiological effects of menstruation have serious economic ramifications upon women’s participation in the workplace on equal terms with men (consider the recent debates on paid menstrual leave, for instance), as well as upon their reproductive health.

I have only set out the form of the argument here: a complete argument would require a detailed scientific and sociological study of the societal affects of menstruation, and the role of sanitary pads in that context. It would also require dealing with an objection raised in the comments, namely, that in view of the fact that only 12% of Indian women use sanitary pads (and the other 88% have to make do with alternatives), in the Indian context perhaps sanitary pads are luxuries: to answer this objection, we would need to consider both women’s testimony, and scientific evidence, on how sanitary pads mitigate the debilitating effects of menstruation

Presumptively, however, I hope that this makes clear the distinction between sanitary pads on the one hand, and condoms, lipsticks, aftershave lotion, and underwear on the other (this is apart from the fact that neither condoms nor underwear is sex-specific): a tax on sanitary pads is effectively a tax on menstruation. It is discriminatory because it entrenches and perpetuates – both materially and symbolically – disadvantages (of different kinds) suffered by women in society because they menstruate. Now if a similar argument can be made for other items, then there is a ground for exempting them from tax as well.

Why Not Article 21? 

Many commentators were of the view that Article 21 – through arguments about the right to dignity and the right of access to health – might provide a better constitutional foundation for an argument against taxing sanitary pads. I would, however, prefer to maintain a focus on Article 15(1), for three reasons: first – for the reasons advanced above – I do actually believe that a tax on sanitary pads is predicated upon long-held assumptions that are basically gendered and discriminatory; secondly, an Article 15(1) argument helps us to move beyond the strict comparator bind that we’ve been in for the last six decades, and to think of fresh ways of conceptualising discrimination; and thirdly, I’m hesitant about an expansive reading of Article 21. As I have argued before on this blog, we should be wary of continuing to use Article 21 in a manner that both dilutes the core right (life and personal liberty), as well as risks taking us to a place where Article 21 begins to swallow up other rights under the new judicial fad of “balancing rights”. This does not, of course, take away from the fact that the sanitary pad tax does raise a core issue of access to health (as much as it raises an issue of discrimination), and under existing jurisprudence, Article 21 does include a right of access to health.

Specific and Holistic

One commentator raised an important point: would the tax on sanitary pads remain discriminatory if it was shown that overall, the tax regime as a whole was more favourable to women than men? In other words, what if it could be shown that the burden on sanitary pads was offset by other benefits in the IT Act, so that at the end of the day, women had a smaller overall tax burden?

In my view, I think this argument would have force if we continued to think about discrimination as centred around a strict comparative approach. On the shift to the disadvantage approach, however, it doesn’t matter if overall women are placed better off than men: the tax on sanitary pads – which is effectively a tax on menstruation – causes disadvantage that is of concern to discrimination law, even if that disadvantage is offset by advantage elsewhere. However, I am not entirely convinced of this response.

Conclusion

In conclusion, therefore, I think that despite some nuanced and important objections, the basic form of the argument – that a tax on sanitary pads presumptively constitutes sex discrimination under the Constitution – continues to hold. Whether it actually constitutes sex-discrimination depends upon producing the kind of evidence that I have outlined above, including – and especially – the personal testimonies of women.

Haji Ali Dargah: Bombay High Court Upholds Women’s Right to Access the Inner Sanctum

In an important judgment delivered today, the Bombay High Court upheld the right of women to access the inner sanctum of the Haji Ali Dargah, and also held that, consequently, the Haji Ali Dargah Trust’s decision to exclude them was illegal and unconstitutional. Previously, on this blog, we discussed some of the legal and constitutional issues arising out of this case, concluding that there were good constitutional arguments in favour of the right of access.

Coming in at 56 pages, the Bombay High Court’s judgment is a crisp and lucid elucidation of the existing state of religious freedom jurisprudence under the Constitution, as well as application of that jurisprudence to the facts of this case. The Court began by recounting the three reasons provided by the Trust for barring women’s entry; first, that “women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts… [secondly] for the safety and security of women; and [thirdly] that earlier they [i.e., the Trust] were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.” (paragraph 5) It is this last reason that needed to be considered in the greatest detail, since it went directly to the heart of the Constitution’s religious freedom guarantees, granted to both individuals and to religious denominations.

In dealing with this submission, the Court considered the minutes of the meeting which had led to the Dargah Trust passing the Resolution to exclude women. Four reasons emerged out of the minutes, which overlapped with (but were not identical to) the three submissions made in Court; first, that the women being in close proximity to the grave of a saint was a “sin” in Islam; secondly, that the Trust had the fundamental right to manage its own affairs in the matters of religion under Article 26 of the Constitution; thirdly, that it was in the interests of the safety and security of women; and fourthly, at no point were women allowed to come within the proximity of the dargah (paragraph 22) This last issue was quickly disposed off by the Court, since the record made it clear that until 2011 -12, women were, as a matter of fact, allowed into the inner sanctum (paragraph 23).

This brought the Court to the core argument, which was based upon the Trust’s interpretation of Islam. The Trust argued that the Quran and the Hadith prohibited proximity of women to the tomb of a male saint, that menstruating women were ‘unclean’, and that men and women had to be separated at holy places. To substantiate this argument, it placed verses from the Quran as well as the Hadith before the Court. The Court found, however, that none of these texts stated that the presence of women in proximity to the tomb of a saint was a “sin”, and nor did they support “the absolute proposition” for banning the entry of women into the inner sanctum because of the need for “segregation”. While the Petitioners had also produced verses from the Quran in support of gender equality, the Court held that there was no need to go into these, since the Trust, on its own terms, had failed to show that the entry of women into the inner sanctum was a sin under Islam (paragraph 26).

The Court then turned to the arguments under Article 25 (freedom of religion), and Article 26(b) of the Constitution – namely, that every religious denomination, or section, had the right to mange its own affairs in matters of religion. On Article 25, relying upon the long-standing religious freedom jurisprudence of the Supreme Court, the Court first invoked the “essential religious practices test” – i.e., was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of Islam? According to the Court, the test for an “essential practice” was that it must  “constitute the very essence of that religion, and should be such, that if permitted, it will change its fundamental character” (paragraph 29). This being the case, the Court found that the Trust had failed to demonstrate that Islam did not permit the entry of women into Dargahs/Mosques, a claim that was further weakened, given that women had been allowed entry up until 2011 – 2012 (paragraph 31). Of course, the Trust argued that it was only after 2011 that its attention had been drawn to what the Sharia actually required; to this, the Court’s swift response was that the Trust had placed nothing on record to show what specific aspects of the Sharia had been drawn to the Trust’s attention that changed the position so drastically (paragraph 31).

The Court then turned to Article 26(b), which guaranteed to religious denominations the right to manage their own affairs in matters of religion. The Court first went into the history of the Trust itself, and its operations. It noted that the Haji Ali Dargah stood on public land, leased to the Trust by the Government; a scheme for managing the Trust was drawn up by a government-appointed commissioner in 1936; the role of the Trustees was to prepare books of account, conduct business, maintain the properties, and so on (paragraph 33). This enquiry was important, because under the Supreme Court’s Article 26(b) jurisprudence, especially insofar as it concerns the rights of trusts or maths, a distinction must be drawn between religious activities on the one hand, and secular activities bearing the trappings of religion on the other (unlike the essential practices test, this distinction is actually grounded in the Constitutional text – for instance, Article 25(2)(a), which permits State intervention into secular aspects of religious practice – as well as the Constituent Assembly Debates). Consequently, the Court found that:

“The aims, objects and activities of the Haji Ali Dargah Trust as set out in the Scheme are not governed by any custom, tradition/usage. The objects of the Haji Ali Dargah Trust are in respect of purely secular activities of a non-religious nature, such as giving loans, education, medical facilities, etc. Neither the objects nor the Scheme vest any power in the trustees to determine matters of religion, on the basis of which entry of woman is being restricted.”

It’s important to note here that unlike many other cases before it, the Court did not here get into the question of whether the exclusion of women from the dargah was a “religious” question or not. It simply held that the Trust was never authorised to deal with matters of religion, and that therefore, Article 26(b) was not even attracted in the first place. And there was a further reason why Article 26(b) could not apply:

“Admittedly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its decision solely based on a misreading of Article 26. The respondent No. 2 Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion’ under Article 26 and as such, the State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against discrimination based on gender.” (paragraph 36)

In other words, the Dargah’s public character took it out of the protective scope of Article 26(b), and made it subject to Articles 14, 15 and 25 of the Constitution. This is a fascinating point, especially given the long history of temple-entry movements in India. Ever since the time of Ambedkar, temple-entry movements have framed the basic question as being about access to public spaces, a right that could not be curtailed on grounds of caste etc. In this case, the form of the Trust – as well as the fact that the Dargah was “open” to all – allowed the Court to hold that the question of access was of a “public” character, and therefore, impliedly, outside Article 26(b).

The Court then went on to hold, however, that even if it was attracted, Article 26(b) could not override other constitutional provisions:

“Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution.” (paragraph 36)

With respect, this might not be correct. It is, in fact, Article 25 of the Constitution that contains the prefatory term “Subject to other provisions of this Part…” This suggests that when the framers wanted to subordinate one provision of Part III to the others, they did so expressly. The omission of this phrase in Article 26 would suggest, therefore, that it is 25(1) that is subject to 26 (in case of a clash), and that, at the very least, more work must be done before holding that Article 26(b) is subject to Articles 14 and 15.

Lastly, the Court swiftly disposed off the ‘women’s security’ argument, holding that it was for the Dargah (as well as the State) to take effective steps to guarantee the security of women, instead of banning them outright (paragraph 37). It ordered, therefore, that status quo be restored, i.e. “women be permitted to enter the sanctum sanctorum at par with men.”

The reader will note, at this point, that a final step in the argument appears to be missing. Even after holding that the arguments of the Dargah, based on Articles 25 and 26 failed, on what legal or constitutional basis were the women enforcing their right of access against the Dargah? The Dargah was not, after all, a State body, and consequently, there could be no direct relief against it under Articles 14, 15, or 25. The Court didn’t address this question separately, but the answer is found back in paragraph 18:

“… the State cannot deprive its citizens of the constitutional rights guaranteed under Articles 14 and 15. It would then be the Constitutional responsibility of the State to ensure that the principles enshrined in the Articles 14 and 15 of the Constitution are upheld. Article 14 of the Constitution guarantees that `the State shall not deny any person equality before the law or the equal protection of the law within the territory of India’ and Article 15 guarantees `the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The State would then be under a constitutional obligation to extent equal protection of law to the petitioners to the extent, that it will have to ensure that there is no gender discrimination.”

In other words, what the Court held was that under Part III, the State did not merely have a negative obligation not to infringe fundamental rights. Rather, it had a positive obligation to prevent a private party from infringing upon another private party’s fundamental rights (this, I argued before, was a move open to the Court in light of the Supreme Court judgments in Vishaka and Medha Kotwal Lele). In technical terms, this is called “indirect horizontality” (discussed previously here). If a private party is infringing my fundamental rights, I cannot move the Court directly against that private party, and ask the Court for relief against it; I must make the State a Respondent, and ask the Court to direct the State to take necessary action in order that I may vindicate my fundamental rights (by deploying police, security, or whatever else). And interestingly the petitioners in this case did make the State a party – in fact, the State was the First Respondent.

Let us now summarise the structure of the judgment:

1. The Haji Ali Dargah Trust justified the exclusion of women from the inner sanctum on the basis of the freedom of religion (Article 25(1)), and the right of religious denominations to manage their own affairs in the matters of religion (Article 26(b).
2. The Court rejected the Article 25(1) argument on the basis that the Trust had failed to place any material on record to demonstrate that the exclusion of women from dargahs was an “essential feature” of Islam. The Dargah’s claims were thrown further into doubt by the fact that women had been accessing the sanctum up until 2011 – 12.
3. The Court rejected the Article 26(b) argument on the basis that:
   1. The Scheme of the Dargah Trust did not allow it to adjudicate upon religious matters. Hence, Article 26(b) was not attracted.
   2. The Dargah Trust was a public charitable trust, and the Dargah was a public space open to all. Hence, Article 26(b) was not attracted.
   3. Even if Article 26(b) was attracted, it was overriden by Articles 14, 15 and 25(1)
4. The exclusion of women from the inner sanctum of the Dargah violated their rights under Articles 14 (equality), 15(1) (non-discrimination) and 25(1) (freedom of religion).
5. Consequently, insofar as the Dargah Trust was impeding the women’s enjoyment of their fundamental rights, they were entitled to call upon the State to perform its positive obligations under Part III of the Constitution, and vindicate their rights by taking appropriate enforcement-oriented action.

By way of conclusion, let me make two points. On this blog, I have strongly opposed the “essential features” test as being a doctrinal, historical and philosophical mistake (see here), and proposed an alternative interpretation of Articles 25 and 26 (see here). If, however, there is to be a change, that change must be initiated by the Supreme Court, sitting in a bench of appropriate strength (at least seven judges). Whatever the Bench’s personal views on the essential religious practices test, sitting as the Bombay High Court, they had no choice but to follow and apply it. This they did. What is important to note, however, is that they applied it in a narrow, circumspect, and sensitive manner, and to the extent that they necessarily had to. They limited themselves to examining only the material placed on record by the Trust. Even though the Petitioners had placed on record material arguing that Islam mandated gender equality, the bench refused to make observations on that point, one way or another. Unlike far too many previous cases, they refrained from making grand, overarching claims about the religion before them. Given that the whole problem with the essential practices doctrine is that it allows judges to impose an external view upon the lived practices and traditions of the community, the Bombay High Court’s reticence in doing that must be applauded.

This brings me to the second, related point. Over the past few years, cases of this sort – which involve issues of fundamental rights, religion, and gender equality, among others, have seen much judicial grandstanding. There have been broad and sweeping statements, which do not stand up to rigorous scrutiny, very little attention to the Constitution and to legal doctrine, and the privileging of rhetoric over reason. The Bombay High Court’s judgment is the exact opposite of all this. The bench decided the case on closely-reasoned legal grounds (as any court must) refused the obvious temptation of buccaneering into the political and religious thicket, and avoided doing anything more than was absolutely necessary for deciding the case. If we criticise the judiciary when it plays to the galleries, we must also praise it when it abstains from doing so. For that reason, apart from everything else, today’s judgment deserves much praise.

 

 

 

Female Intestate Succession under Hindu Law: Analyzing its Constitutionality

(This is a guest post by Ayushi Singhal)

Under the present legal system of India, people from different religions are governed by their own personal laws in matters of inheritance, marriage, separation, guardianship etc. In this regard, the succession in Hindus is governed by the Hindu Succession Act, 1956 (‘HSA’). A peculiar fact about this Act is that it makes a differentiation between the intestate succession of females and males. The female intestate succession is further dependent on the source from which the property was received by the deceased female. This post after critiquing the Act as it stands (it being discriminatory and therefore unconstitutional) discusses the development in law brought by a Bombay High Court decision, which I hope will be affirmed by the larger bench putting an end to the present scheme of female intestate succession amongst Hindus.

The property of a Hindu female under the HSA has been divided into three categories, viz. property inherited by a female from her father or mother, property inherited from her husband or father-in-law and the third kind, the properties which are not governed by the first two categories. This kind of differentiation, depending upon the source of property and gender, is not seen in any other religion across the world. Under §15 r/w §16 of the HSA, the general rule for succession of all kinds of the properties is that it will pass on to the children (or if children predeceased the female, to the predeceased children’s children) and the husband. However, in case there is no one in existence from the above at the time when succession opens, the first kind of property will be inherited by the heirs of her father and the second by the heirs of her husband. Perhaps, the intention of the legislature was that the property should go back to the source from which it was received. It is the succession procedure of the third kind of property, which includes the self acquired properties or properties received in any other manner or from any other source, provided the female has absolute rights in that property, which is under question in this post. §15(1) of the act provides for a specific order, in which this property divests;

“(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother”

The discriminatory nature of this law can be understood using the case of Om Prakash v. Radha Charan (‘Om Prakash’). The case pertains to Narayani, after whose death, there was a dispute regarding the succession of her properties. Ramkishori, the mother of Narayani, filed an application for grant of succession certificate under §372 of the Indian Succession Act, 1925. The respondents, who were the brothers of Narayani’s husband, also filed a similar application to get the succession of Narayani’s self acquired properties. To understand the complication in the situation, it is important to know the background of the way the properties were acquired.

Narayani’s husband died of snake bite within a short period after marriage. She was then thrown out of her matrimonial place by her in-laws who were the respondents here. She was never enquired of for the 42 years she stayed in her parents place after the husband’s death. She was educated by her parents and subsequently gained a well paid job. Therefore, she left a huge amount of property including bank accounts, provident funds, land etc. She died intestate at the end of these 42 years. Despite these facts, the Judges said that sentiments and sympathy cannot be a guiding principle to determine the interpretation of law and it should not be interpreted in a manner that was not envisaged by the legislature. The court stating so said that the HSA specifically mentioned that the self acquired properties will pass on to the husband’s heirs in the absence of any issues and husband, which was the case with Narayani also and so the court will have to pass the judgment in favor of the respondents.

Although it is understandable that the court couldn’t have gone beyond the intention of the legislature, however, neither did the court give full effect to what the Parliament intended. The argument of the advocate for Narayani’s mother holds weight in this regard. The lawyer argued that since the intent of the Parliament while introducing the said section was to send the property back to the source and not to a stranger, it is logical that since here the property was earned via the money spent by Narayani’s parents, the money so earned should be returned to her parents. This wasn’t accepted by the court.

It should be noticed that the succession laws are not only about the ones who are entitled to the property, but also about the ones who should be disentitled. The 21st edition of Principles of Hindu Law (Mulla) also observes that §15(2) is based on the grounds that property should not pass to the individual “whom justice would require it should not pass.” Here, the court granted the property to the very people who behaved cruelly with the deceased and did not maintain the relationship when she needed it the most. As has been argued by the scholar Dr. Poonam Pradhan Saxena, the court should have denied them the locus standi of asking the property of a person whom they had disregarded for more than four decades. Support can be drawn for the above argument from §25 of the HSA, where a murderer is disqualified from inheriting the property of the person he/she has murdered. It is based on the belief that the deceased person will never want the person who murdered him/her to inherit property.

On the other hand, §8 of the Act which deals with succession in the case of males, gives precedence to blood relatives over the relationships arising out of marriage. This prejudiced scheme of the act is evidently ultravires the constitution since the rules for males and females in the Act are different and thus they discriminate only on the basis of gender which is prohibited under Article 15(1) of the Indian Constitution.

In contrast to the Parsi, Muslim or Christian law, where the blood relatives of the women inherit even in the presence of her husband or her husband’s relatives, the blood relations of a Hindu woman are given an inferior position in contrast to her husband’s heirs. This leads to a situation where her own relatives will never be able to inherit in case there is even a remote heir of the husband. There is judicial imposition of the husband’s relatives over her own blood relations. The entire group of husband’s heirs inherits from her, whereas she does not inherit from them. The marriage of a man doesn’t make a difference on the way his property gets devolved, but the marriage of a woman changes the pattern of inheritance for her properties. This is a result of the thinking that a woman has no family of her own, it is either the husband’s or the father’s that she lives in. The woman is not treated as an independent individual capable of transferring her property to her blood relatives, but an epitome of her husband. The law is also a suggestion of the discarded view that the woman has a limited stake in the property. This view which was sought to be removed by §14(1) of the HSA, still clearly lingers in the scheme of succession.

However a recent Bombay High Court decision in Mamta Dinesh Vakil v. Bansi S. Wadhwa has tried to change the position in this respect. The case is a regular female intestate succession issue, however one of the few to challenge the constitutionality of the law as it stands today. To understand the basis of the judgment, one needs to understand the principles on which affirmative discrimination is made in the law.

Under Article 15(1) of the Indian Constitution, discrimination cannot be made “against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. This being the case, discrimination based only on the above grounds is unconstitutional, but not the one which is based on the above factors coupled with some other criteria like social and educational backwardness. Taking this argument further, it was argued in the Bombay High Court case that the inequality which exists in §15(1) of the Act, is not based on gender alone but also on family ties. Building it further, it was said, “that the woman, upon marriage, goes into the family of her husband; the converse is not true. A woman gives up her maternal/paternal ties upon her marriage and assumes marital ties. Hence, intestate succession for Hindus takes into account this ground reality.” It was argued that it is considering this reality that the legislature has provided for the heirs of the husband in the woman’s property.

It needs to be noticed that the constitutional validity of the section in question was also brought to the judiciary in an earlier case of Sonubai Yeshwant Jadhav v. Bala Govinda Yadav. It was held there that

“… the object of the legislation was to retain property with the joint family upon marriage which brought males and females together forming one institution. It, therefore, accepted that in recognition of that position when the wife’s succession opened, the class known as heirs of the husband were permitted to succeed as a result of initial unity in marriage upon which the female merged in the family of her husband”.

The court in the present case, rejected this argument, and added that the discrimination in the section is only based on gender and not also on family ties. The court analyzed the succession scheme of the male intestates under the HSA to check the viability of the argument. It noticed that keeping the property within the family wasn’t being envisaged, otherwise the property of a male Hindu wouldn’t be inherited by daughters, sister’s sons and sister’s daughters, since they marry off to homes of other people. It was thus observed that the only basis of this classification was gender. It was further concluded that the Section is extremely discriminatory in as much as the female’s property even if self acquired is not inherited by her core heirs. Further a Hindu female who would expect to inherit from the estate of another “receive(s) setback from distant relatives of husband of deceased not even known to her or contemplated by her to be her competitors”. Therefore the Section is ultra vires the scheme of the Constitution and hence invalid.

The question that judiciary shouldn’t interfere in personal laws was also brought up. The court considered that it will be a blemish that even when the Hindu society was thriving towards gender equality, the succession laws discriminate. It was said that a legislation which discriminates only on the basis of gender, can be questioned, as was done when §§ 10 and 34 of the Indian Divorce Act were amended (in the cases of Ammini E. J. v. Union of India and N. Sarda Mani v. G. Alexander). Moreover, there have been progressive changes in the Hindu law itself, e.g. the amendment in §6 giving women the right to coparcenary and deletion of §23 which deprived women of sharing the dwelling house by the 2005 amendment. It was recognized that although there can be different laws for different religions, there cannot be different laws for different sexes and thus the judiciary has a right to interfere in the latter case.

Although a magnum opus, this judgment has been passed by a single bench of the High Court and needs to be affirmed by the division bench. Once it is so done, it will be a watershed judgment to bring in equality in the Hindu law. Once declared unconstitutional, the government can use the recommendations of the 207^th Law Commission Report to bring reforms in the law. The report suggests two options, one of bringing the intestate succession laws in parity with the males, and the other of dividing the property equally among the matrimonial and natal heirs taking into note the ground reality that the woman ultimately leaves her natal place and works under the constant support of her in-laws. Either of these options will be progressive changes in the Hindu law.

Sex Discrimination and the Constitution – XII: Indirect Discrimination in Sareetha vs Venkatasubbaiah

Before ending our discussion on sex discrimination under the Constitution, it would be interesting to take note of two (overruled) High Court cases that pushed interpretive boundaries in their understanding of Article 15(1). The first is the Delhi High Court’s judgment in Naz Foundation vs NCT of Delhi. As is well-known, the High Court invalidated Section 377 of the IPC, which criminalised “carnal intercourse against the order of nature” (read: homosexuality), on grounds of Articles 14, 15 and 21. One of the things the High Court did was to read “sexual orientation” into the word “sex”. In a guest post last week, Vansh Gupta examined this issue in some detail, so I won’t reiterate the argument in full. Briefly, there are two ways of understanding the Court’s interpretive move. The first – which is what the Court itself seems to say – is that sexual orientation is read into Article 15 as a ground “analogous” to sex. This, I believe, is a mistake, since the text of Article 15(1) makes it clear that the “grounds” stated therein constitute a closed list (compare, e.g., with the anti-discrimination provisions of the South African and Canadian Constitution). However, the other – more acceptable – reading is that the criminalisation of homosexuality constitutes sex discrimination, properly understood. This is because, at its heart, it rests upon the same gender stereotypes (including assumptions about sexual roles) that form the basis of sex discrimination.

Let us now consider the judgment of the Andhra Pradesh High Court in T. Sareetha vs Venkatasubbaiah. The constitutionality of S. 9 of the Hindu Marriage Act, which provides for the “restitution of conjugal rights”, was challenged. According to Section 9, “when either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights and the Court, on being satisfied the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.” According to an Explanation, the burden of proving reasonableness lies upon the party who has withdrawn from the society of the other. Under the CPC, a decree under S. 9 may be enforced through attachment of property, or detention in a civil prison.

A full history of this concept would be beyond the scope of this essay. Suffice it to say here that the “restitution of conjugal rights” is a common law doctrine, introduced into India by the British, and the subject of some notorious court battles in the late-19th century, at the dawn of the women’s movement.

The Andhra Pradesh High Court struck down Section 9, primarily on the ground that it violated the right to privacy. The judgment’s conception of privacy is novel and fascinating, and repays close study. What is of particular significance, however, is that towards the end of its judgment, the Court also invalidated the provision on the grounds of Article 14. This seems prima facie counter-intuitive, since Section 9 clearly applies to “the husband or the wife“, and makes no distinction between the two. It is, therefore, facially neutral. The Court observed, however:

“… by making the remedy of restitution of conjugal rights equally available both to wife and husband, it apparently satisfies the equality test. But the requirements of equal protection of laws contained in Article 14 of the Constitution are not met with that apparent though majestic equality at which Anatole France mocked… the question is how this remedy works in life terms.  

In our social reality, this matrimonial remedy is found used almost exclusively by the husband and is rarely resorted to by the wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this fact. The learned author recorded that although the rights and duties which marriage creates may be enforced by either spouse against the other and not exclusively by the husband against the wife; a suit for restitution by the wife is rare”.

The reason for this mainly lies in the fact of the differences between the man and the woman by enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievably whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s future plans of life and prevents her from using that self-destructive remedy. Thus the use of remedy of restitution of conjugal rights in reality becomes partial and one-sided and available only to the husband. The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

There are two important aspects of this analysis. The first is a factual finding that a facially neutral statute has a disproportionate effect upon a certain class (although one would have liked statistical evidence beyond a quotation from Gupte’s Hindu Law in British India!) The technical term for this is “disparate impact”. The second is that the reason for the disparate impact cannot be linked with any constitutionally justifiable purpose. Here, the Court finds that, in light of the deeply unequal familial power structures prevailing within Indian society, a textually neutral legal remedy operates to the severe disadvantage of women. The two findings together constitute the vice of indirect discrimination (in other jurisdictions, a finding of disparate impact shifts the burden upon the discriminator to show that his or her actions could be justified by a legitimate and proportional purpose).

It is important to acknowledge indirect discrimination as a form of constitutionally proscribed discrimination, since statutes and policies are not always consciously designed to exclude groups and classes. As we have seen before, prejudices can be subconscious or unconscious, and entire exclusionary social and economic structures can be erected without the intention of harm anyone. Anuj Garg’s focus on the effect of policies upon protected groups, and the Andhra Pradesh High Court’s factual and normative analysis of Section 9 of the Hindu Marriage Act, together constitute a powerful foundation from which to place indirect discrimination at the heart of the non-discrimination guarantee.

Two things remain to be noted. The first is that T. Sareetha examined indirect discrimination within the context of Article 14, and not Article 15. The logic, however, remains exactly the same, especially when coupled with the effects test under Article 15. Secondly, Sareetha was quickly overruled by the Supreme Court, which warned against bringing constitutional law into the domestic sphere. Whatever the merits of that ruling, Sareetha is no longer good law. However, much like Koushal and Naz on “sex” and “sexual orientation” under , there was no specific finding by the Supreme Court on the issue of indirect discrimination. Neither of these two propositions, therefore, have been expressly rejected by the Court. As such, their normative power and attractiveness makes them ideal candidates to be adopted in some future time.

 

 

 

 

Sex Discrimination and the Constitution – XI: The Justification of the Anti-Stereotyping Principle

We have seen that in Anuj Garg, the Supreme Court adopted the anti-stereotyping principle: sex-based classifications could not be saved under Article 15(1) if their only justification was to invoke stereotypes about women’s sexual or social roles in the community. What, however, is the basis of this principle? Since the Supreme Court borrowed it from American jurisprudence, we must take a brief detour, and examine the history of constitutional sex discrimination claims in the United States. That history throws up a surprising link: between sex equality, and the right to vote.

Until 1919, women in the United States did not have the right to vote. The denial of this right was justified – among other things – on a theory of virtual representation: that the interests of women were represented (before marriage) by their fathers and (after marriage) their sons, so there was no need for a separate vote. The idea of virtual representation was not restricted to the sphere of voting, but extended to an entire legal regime known as coverture: through which men disposed off property, entered into contracts and engaged in commercial relations on behalf of their wives or daughters. The social philosophy underlying the law of coverture is now called “the separate spheres” theory: i.e., it holds that men and women belong to naturally-ordained separate spheres – the public sphere for men, and the private sphere for women. To perform the functions required of one’s sphere is a natural obligation, and the two spheres are exclusive and non-overlapping.

The denial of the right to vote, therefore, rested upon the legal framework of coverture, which, in turn, was justified by the social theory of the separate spheres. So when the women’s suffrage movement in the United States’ concretely demanded the right to vote, it was not simply asking for access to the ballot box, but challenging the legal regime of coverture and the philosophy of the separate sphere itself. This is evident from the 1848 Seneca Falls Declaration, widely believed to herald the start of the suffrage movement. The Declaration accused man of “claiming it as his right to assign for [woman] a sphere of action, when that belongs to her conscience“, and attempting to “destroy her confidence in her own powers, to lessen herself-respect, and to make her willing to lead a dependent and abject life.” The twin ideas of dependency and an imposed restriction of social roles formed the heart of the claim for suffrage. This was understood by opponents of the movement as well, who linked the right to vote and the transformation of the separate spheres, asking “if our ladies will insist on voting and legislating, where, gentlemen, will be our dinners and our elbows? where our domestic firesides and the holes in our stockings?” The American legal scholar, Reva Siegel, argues therefore that “the arguments of suffragists and their opponents tied the idea of women voting to the prospect of women’s emancipation from traditional roles in marriage and the market. Once the question of woman suffrage was infused with this social meaning – once the question of woman suffrage was known simply as the “woman question” – the nation’s debate about whether women should vote turned into a referendum on a whole range of gendered institutions and practices.”

Of course, between 1848 and 1919, the suffrage movement developed multiple currents, not all of which were in harmony. Around the turn of the century, for instance, another strand of the movement began to invoke the separate sphere to justify the claim for suffrage, arguing that because of women’s unique knowledge about issues related to welfare, the bringing up of children, sanitation and hygiene etc., they ought to be allowed the power of the ballot box in shaping policy. A decade later, yet another strand raised the spectre of the recently-enfranchised African-American community overwhelming the Whites at the polls, and asked for the vote to counteract this threat (See Alieen Kraditor, The Ideas of the Woman Suffrage Movement). As is the case with al social movements, it is impossible to tell which strand had the greatest contribution towards ultimate constitutional success. However, what is important to note is that the 19th Amendment, which granted the women the vote, was framed as a right. Neither the second, nor the third arguments for the vote, that we have outlined above, were framed in the language of constitutional principles or rights. It was only the first, and original suffragist argument against the theory of the separate spheres, that was framed in the vocabulary of rights. Consequently, whatever the intentions of the drafters of the Nineteenth Amendment, its very language reflects the constitutional acceptance of the anti-separate spheres movement. More importantly, this is how the Courts understood it – at least initially. In 1923, in Adkins vs Children’s Hospital, the Supreme Court struck down differential working hours of men and women. In so doing, it overruled the pre-Nineteenth Amendment case of Muller vs Oregon (which some of our courts have relied upon), noting that “… the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued ‘with diminishing intensity.’ In view of the… revolutionary changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment… these differences have now come almost, if not quite, to the vanishing point.” Fifty years later, in Frontiero vs Richardson, the judgment which kickstarted the modern American law of sex discrimination, Justice Brennan referred to “traditional belief that the “paramount destiny and mission of women are to fulfill the noble and divine offices of wife and mother”, before stating:

“As a result of notions such as these, our statute books gradually became laden with gross, stereotypical distinctions between the sexes and, indeed, throughout much of the 19th century the position of women was, in many respects, comparable to that of blacks under the pre-Civil War slave codes.”

Justice Brennan’s opinion makes the link between the anti-stereotyping principle and the separate spheres theory. The transformative moment that changed separate-sphere based stereotypes from accepted classificatory tools to unconstitutional, discriminatory ones, was the Nineteenth Amendment, which repudiated virtual representation and its underlying justifications by affirming the right of women to vote.

It is, of course, dangerous to draw connections between jurisdictions in too facile a manner. Two things ought to be noted, however. The first is that the link between the right to vote and the repudiation of separate spheres is a conceptual link, and not jurisdiction-specific. And the second is that a brief look at our pre-Constitutional history reveals some striking similarities. Scholars like Partha Chatterjee and Tanika Sarkar have demonstrated that the public/private divide in the form of ghar/bahir (although in a subtly different form) arose in India towards the end of the nineteenth century, with British efforts at social reform resisted on the grounds of interference with the “inner domain” of community life, which was often represented by the figure of the woman. Chatterjee notes, for instance:

“The world is [deemed to be] a treacherous terrain of the pursuit of material interests, where practical interests reign supreme. It is also typically the domain of the male. The home in its essence must remain unaffected by the profane activities of the material world – and woman is its representation. And so one gets an identification of social roles by gender to correspond with the separation of social space into ghar and bahir.”

This, as we can see, closely corresponds to the separate spheres theory (again, one must be careful of too much reductiveness in comparisons – for the purposes of this argument, however, a rough analogy will suffice). The separate spheres theory spilt over powerfully into the nascent demand for self-representation during the 1920s and 1930s phase of the freedom movement. Initially, during the first opening up of suffrage by the colonial government, separate electorates were proposed for women. As Wendy Singers points out, these “characterized a candidate as a stand-in for her constituency. In other words, separate electorates for women made manifest the idea of a women’s constituency that represented women’s issues and was embodied by the candidate.” (See Singers, A Constituency Suitable for Ladies 25) This was strongly resisted by the All India Women’s Conference (AIWC) and other organisations; on the other hand, as Gerladine Forbes points out, the proposition that only women could represent the interests of the “home” was endorsed by leading figures such as Sarojini Naidu, who urged “women to utilize their housekeeping skills to put the ‘national house’ in order.” This was also reflected – as Forbes notes – in initial demands to restrict suffrage to educated women, who were better placed to advocate social reform. The fact that suffrage was being demanded on two very different grounds, which were based on two incompatible visions of society, was clearly understood by the representatives of the women’s movement during the Second Round Table Conference. Mrinalini Sinha notes that “the representatives speaking on behalf of the Indian women’s movement had insisted that women were neither a “minority” nor a “special interest”, but an integral part of the people… Hence they demanded only universal adult suffrage and a declaration of fundamental rights in the new constitution that removed sex, along with caste, class and religion, as the grounds for any political disqualification.” (Mrinalini Sinha, Spectres of Mother India 223) Here, for the first time, we see the implicit connection between the right to vote, separate electorates, separate spheres, and equality and non-discrimination, being made explicit.

This is, admittedly, a sketchy history; what is worth pointing out, however, is that the Indian Constitution rejected both separate electorates for women and educational qualifications for suffrage. The intentions behind the framers’ decisions are complex, but what matters is that the text of the Constitution merely speaks about adult suffrage. This, in turn, would suggest – based upon our previous arguments – a rejection of the separate spheres theory, much along the lines of the Nineteenth Amendment in the United States.

The anti-stereotyping principle, therefore, is grounded in the transformative nature of the Constitution, which – in simultaneously guaranteeing women the unconditional right to vote along with a guarantee of non-discrimination, rejected separate spheres (and therefore, stereotypes) as justifications for sex-based classifications. Consequently, the line of High Court cases culminating in Anuj Garg was correctly decided, and should be followed in the future. Of course, as Reva Siegel points out, “anti-stereotyping” is an empty phrase without more; to decide whether or not classifications are based on stereotypes needs detailed historical enquiry, tracing the roots of the classifications and their evolution over time. It is an enquiry that the Court is yet to seriously embark upon, but Anuj Garg has, at least, laid the foundation for the future.

—

(A more detailed version of my argument drawing a link between sex equality, anti-stereotyping, and the right to vote, is available here)

 

Sex Discrimination and the Constitution – X: The Culmination of the Anti-Stereotyping Principle in Anuj Garg

In the last three essays, we discussed the complex intersections between labour and service laws, and sex discrimination. Let us now return to our original line of cases, which present discrimination claims in a simpler and starker background. In A.M. Shaila vs Chairman, Cochin Port Trust, decided by the Kerala High Court in 1994, the question was whether the Cochin Port Trust’s decision to exclude women from working as shed clerks violated Articles 14 and 15 of the Constitution. The Court held that it did not, noting that “if women are excluded from employment of a particular category because of their physical structure and special susceptibilities, it means that women have been placed in a class by reason of the distinct circumstances. In such a case the denial of opportunity of employment, though it strikes at women ceases to be “solely” on the ground of sex.” In noting some of the differences in “physical structure” and “special susceptibilities”, the Court relied upon American cases that had referred to the “natural functions of motherhood” and “social and moral hazards, which had already been pointed out as having been overruled in Rajamma, twelve years before. Summing up, the Court held:

“The continuous work while standing or moving and the movement at the shipping wharf amidst the menacing movement of cranes and forklifts demand protective restriction on the right to employment. The policy of the Port Trust indeed protects women from the hazardous effect of such work on their well being. Therefore the policy is not based only on sex. A woman working at the shipping wharf away from the main office, isolated and alone can be an object of violence on her person-especially at night. That is why Curt Muller v. The State of Oregon (supra) used the words” protect her from the greed and passion of man”. The policy of the Prot Trust impugned in this case does not violate Articles 14 and 15(1) of the Constitution of India for these reasons.”

 The problems with this line of reasoning have been examined at length before, and need not be repeated. In the 2000s, however, numerous High Courts were moved against provisions of the Factories Act that allowed governments to prohibit women from working in certain kinds of employment between 7 PM and 6 AM. In 2001, in Vasantha vs Union of India, this was challenged before the Madras High Court. Much like in A.M. Shaila’s case, this was justified on the ground that it was a “benign” measure designed to protect women, so that they could avoid “strenuous work”, and fulfill their household duties. Rejecting the argument, the Court noted that “it is not always so easy to verify whether discrimination that is claimed to be “affirmative action” or “benign” whether really is and at times it is demonstrably established that such a discrimination actually reinforces a negative and untrue stereotype of them.” In other words, it was not enough for the State to simply claim that it was enacting measures to benefit women under Article 15(3) (as the Supreme Court had held earlier, in its adultery decision). The measure itself would be subjected to judicial review, to confirm whether it was based on negative stereotypes. The Court struck down the provision, and also issued guidelines by requiring employers to take steps in order to prevent sexual harassment, provide secure working conditions, separate canteen and transportation facilities for women, etc. That same year, in Triveni vs Union of India, the Andhra Pradesh High Court followed suit, expressly agreeing with the Madras High Court and disagreeing with the Kerala High Court. The Court also observed:

“We have been told that there is a G.O. by which certain safeguards have been provided to the women who are working in Fish industry during the night hours. The same safeguards shall be given to women workers in other industries during the night time.”

Recall Catherine MacKinnon’s observation that the judgment upholding the prohibition of women from working in jails took the viewpoint of the “reasonable rapist.” The Madras High Court’s guidelines, and the Andhra Pradesh High Court’s observation are important, because they make it clear that the State cannot invoke social realities as grounds to burden women, but rather, has a positive obligation to change that reality in order that the need for discrimination disappear. In A.M. Shaila, the Court held that the dangers to women from “the greed and passion” of man formed part of the immutable background conditions (along with the “physical structure” of the sexes), which, if taken into account by the State in classifying the sexes for differential treatment, would be constitutionally valid. In this case, however, those “immutable background conditions” were treated as human-made social structures, which were allowed to flourish through State inaction – consequently, placing a duty upon the State to remedy them. The difference between A.M. Shaila and Vasantha and Triveni reflects, yet again, that the analytical baseline chosen by the Court, which is a deeply political choice, will end up having a profound effect upon the final judgment, even though the assumptions remains hidden.

Three years later, however, when the same provision was challenged before the Kerala High Court, the Court adopted the opposite reasoning, once again invoking the place and role of women in society: “the very nature of their commitment to the family and the social environment require that they cannot be entrusted with all those duties which men may be asked to perform… The place of women has been recognized in the Indian society since the hoary past. The Constitution has made a special provision in Article 15(3). It is calculated to protect and promote the interest of women, The impugned provision clearly falls within the protective umbrella of Article 15(3). It does not embody a principle of discrimination on sex, but is calculated to save women from the hazards of working during night in factories.”

 Examples need not be multiplied. But by now, the deep conflict in the basic understanding and interpretation of Article 15(1) should be evident, across time and place. In 2007, however, it would appear that the Supreme Court finally definitively settled the issue, in favour of the anti-stereotyping principle. In Anuj Garg vs Hotel Association of India, which we have discussed previously on this blog, the validity of Section 30 of the Punjab Excise Act, which prohibited the employment of women (and men under 25 years) in premises where liquor or other intoxicating drugs were consumed by the public, was challenged. The Delhi High Court struck down the statute, which was carried in appeal. Before the Supreme Court, it was defended by the State on the grounds of maintenance of security, akin to the arguments in A.M. Shaila and Triveni. The Court rejected the argument, holding – as in Triveni – that “new models of security must be developed, if necessary.” In a separate paragraph titled “Stereotype Roles and Right to Options”, it then quoted with approval the judgment in Frontiero vs Richardson, USA vs Virgnia, and Justice Marshall’s dissent in Dothard vs Rawlinson, all of which were based upon the anti-stereotyping analysis, and observed:

“The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

The High Court’s judgment in striking down the Section, therefore, was upheld.

There has been some controversy over whether the Supreme Court in Anuj Garg incorporated a standard of “strict scrutiny” in dealing with sex discrimination claims. In paragraph 44, the Court stated that “strict scrutiny should be employed” in cases assessing the validity of sex-based legislation. In paragraph 47, however, the Court seemed to adopt a proportionality test: “the legislative interference to the autonomy in employment opportunities for women is justified as a legitimate aim and proportionate to the aim pursued”, before going on to cite cases from the ECHR. It is important to note that strict scrutiny in sex discrimination claims is not the existing position of law, even in the United States. Such claims are adjudicated under a less exacting, “intermediate scrutiny” standard of review, which is fairly close to the proportionality review employed by the ECHR. It is therefore unlikely that the Supreme Court meant to adopt the standard of strict scrutiny as followed in the United States, given the rest of the tenor of its judgment.

It is also unlikely for another reason: the Supreme Court in Anuj Garg did not merely settle the controversy about whether or not stereotypes about women’s sexual and social roles could be invoked to justify a discriminatory law on “sex-plus” grounds. It also settled the controversy about whether an Article 15 enquiry was limited to the motive, or purpose of law, or whether it also included its effects. The Court held:

“Legislation should not be only assessed on its proposed aims but rather on the implications and the effects.”

And again:

“No law in its ultimate effect should end up perpetuating the oppression of women.”

In Anuj Garg, the law at issue was directly discriminatory – i.e., the law, in its very wording, created two categories (men and women), that were composed entirely and exclusively by the two sexes. However, note that the effects test necessarily includes both direct and indirect discrimination: a pregnancy-based classification, for instance, has the effect of disproportionately burdening women, even though the classification is not along the lines of sex. This is extremely important, since – as we have seen before in this series – it tracks an interpretation of the word “grounds” in Article 15 that qualifies not the motive/intent of the law (or lawmakers), but protected personal characteristics. Although the Court did not follow this analysis in Anuj Garg, it is clear that an effects-oriented interpretation of Article 15 must necessarily be based on the second meaning of “grounds”.

In most other jurisdictions, indirect discrimination is analysed within a proportionality framework, making it more likely that the Court’s invocation of strict scrutiny was not in its technical sense.

However, if the framework within which Article 15(1) is to be analysed is an effects-based one, then where does anti-stereotyping come in, which is concerned with motivations? In Anuj Garg, while responding to the State’s contention that the purpose of the law was to protect women, the Court noted that two conditions would have to be satisfied in such cases:

“… (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle, (b) the same should be proportionate in measure.”

The anti-stereotyping principle is relevant insofar as it rules out certain kinds of principled justifications (i.e., those based on stereotypes). In other words, at the first stage of enquiry, the effect of a statute will be analysed, to ascertain whether Article 15(1) is infringed. At the second stage, if the State then advances a justification (whether based on Article 15(3) or otherwise), it will be prohibited from relying upon stereotypes.

Anuj Garg, therefore, is authority for two crucial interpretive propositions: first, that both direct and indirect discrimination are covered under Article 15, within the framework of a broad, effects-based test; and secondly, the State may not rely upon stereotypes to justify prima facie discriminatory legislation. While there are many issues it does not deal with (and did not need to), such as whether different standards apply for direct and indirect discrimination, it nonetheless lays the foundation for a conceptually solid jurisprudence on sex equality. Whether and how it will be followed remains to be seen.

 

Sex Discrimination and the Constitution – IX: Rajendra Grover, the Culmination of the Air Hostess Cases, and Thoughts on the Supreme Court’s Institutional Role

After two decades of litigation, Air Hostesses, Air Flight Pursers and the Union of India met again, in one final battle before the Courts. After the decision of the Supreme Court in Yeshaswinee Merchant, refusing the merger of cadres, the struggle for equalisation was taken (again) outside the judiciary. In 2003, Air India allowed its female cabin crew members (who had been recruited after the first equalisation in 1997) to undertake flying duties until the age of 58, bringing them on par with the male cabin crew. Two years later, in 2005, Air India also decided that henceforth, executive female crew members would be eligible for the post of “In Flight Supervisor” (IFS), thus effectively merging a promotional category that had only been open to men. In Rajendra Grover vs Union of India, this was challenged by the male cabin crew that had been recruited before 1997.

Recall, once again, the tortuous history. In 1995, for the first time, the management and cabin crew of Air India had entered into an understanding, clarifying that for new recruits, cabin crew functions would be interchangeable, but without affecting promotional avenues. Promotional avenues up until the first executive level were themselves merged in 1997, when one cadre – that of “cabin crew” was created. It was the 1997 settlement that had been challenged by the Air Hostesses who were part of the executive class, leading to the Bombay High Court order creating absolute parity between male and female cabin crew – which, in turn, had been struck down in Yeshaswinee Merchant. But now, what Nargesh Mirza and Yeshwasinee Merchant had refused to do via the Constitution, had been done by Air India through Office Orders: complete equalisation of male and female cabin crew.

Before the Delhi High Court, the Petitioners argued that Air India was not entitled to disturb the status that had been guaranteed to them by Nargesh Mirza and Yeshaswinee Merchant, as well as by numerous prior settlements. They contended that the “In-Flight Supervisor” was a promotional post, specifically part of the male cabin crew cadre, which had clearly been held to be separate and different from the Air Hostess cadre in both Nargesh Mirza and Yeshaswinee Merchant, as well as by the Settlements. Consequently, “the impugned administrative order inasmuch as it seeks to grant parity between two unequal classes and separate and distinct cadres is a violation of Article 14 of the Constitution of India.” The Respondent Air Hostesses, on the other hand, argued that the IFS was an entirely functional post (and not a promotional one), and that it was therefore not bound to any one particular cadre. In any event, the equalisation did not affect either the Nargesh Mirza judgment or the settlements, since IFS was a supervisory or executive post, whereas the controversy in the prior cases had been between cabin crew who constituted “workmen” within the meaning of labour law. The Air Hostesses countered the male cabin crew’s invocation of the Constitution by making constitutional claims of their own: “denying a woman the functions of the IFS and maintaining it as a male preserve is violative of Articles 14, 15 and 16 of the Constitution.”

The Delhi High Court found that, on a close reading of Nargesh Mirza and Yeshaswinee Merchant, those cases had only held that the existing status quo did not constitute hostile discrimination. They had not, however, barred the government from changing the status quo by exercising its executive prerogative. This, indeed, was what had happened: “Post 1997, there has been a merger of the cadres of the male and female members of the cabin crew. This is quite different from what prevailed at the time of the judgment in Nergesh Meerza. It is nobody’s argument that such a merger is unconstitutional or invalid or that it runs contrary to what was held in Nergesh Meerza. In fact, in Yeshaswinee Merchant also, the Supreme Court recognized that the employer can take a policy decision to re-organise its organizational structure to remove elements of discrimination.”

The last line is particularly interesting, because of course it was the Court’s opinion in Nargesh Mirza and Yeshaswinee Merchant that unequal service conditions of male and female cabin crews did not amount to discrimination. Taken literally, the Delhi High Court’s sentence would lead to the odd result that the Supreme Court had acknowledged that discrimination existed, but contrary to the requirements of the Constitution, left it to the State to deal with them (of course, our argument throughout this series has been that that was what the Court effectively did, but that is neither here not there).

In any event, the Court concluded the matter by saying that after the merger of cadres in 1997, “in the matter of either flying duties or in the matter of seeking avenues of promotion, the rights of one cadre need not be to the exclusion of the rights of the other. In fact what has happened is that in terms of the impugned order both the pre-1997 male and female cabin crew have an equal chance of being considered for performing the function of IFS in accordance with their seniority.”

The Delhi High Court’s decision was carried in appeal to the Supreme Court which, in 2011, dismissed the appeal with a few perfunctory lines that need not concern us. Thus, the decades-long battle ended. But the thirty-year long litigation compels us to ask a few important questions about the Supreme Court’s institutional role.

As we have seen, the basis of the dispute was the undeniable fact that male cabin crew and female cabin crew were treated differently. In the first round of litigation before the Supreme Court, the treatment of the female cabin crew was clearly inferior: compulsory retirement upon first pregnancy or within four years of marriage, or on attaining the age of 35. Despite the fact that the entire basis of division was the sex of an employee, the Court managed to find that there was no discrimination under Articles 14, 15 and 16 of the Constitution. The Air Hostesses took their case to the Parliament, and won important concessions, such as an increase in retirement age (although still not on par with men) – and, in 1997 – an equalisation of functions. Partly based upon this, the Bombay High Court then ordered complete parity and a merger of the cadres. The Supreme Court reversed this decision, and reinstated the old, unequal system. Parity was finally made complete through executive action, which – ultimately – was upheld by the Court.

Notably, all three institutions of the State were involved in various stages: the Supreme Court, Parliament and the Government. Out of these, the Air Hostesses failed to find relief in only one of the three: the Court. Equalisation was repeatedly rejected by the Courts, which refused to find unconstitutional discrimination, but was won before the Parliament and the Government. If you agree with the basic analysis that constitution of cadres (with unequal service conditions) is clearly sex-based discrimination (as even the Delhi High Court seemed to do in Rajendra Grover), then this entire litigation is strangely counter-intuitive: civil rights were, ultimately, protected not by the institution that is constitutionally mandated to do so, but by the institutions that they are supposed to be protected from.

The Air Hostess litigation, and the area of non-discrimination law, is not an isolated example. In the domain of free speech, the Supreme Court in 1952 upheld the constitutionality of the draconian Press (Emergency) Powers Act, which had been passed by the colonial British government in 1931, with sweeping powers of censorship designed at controlling newspapers. The Act was repealed five years later by Parliament. In the domain of personal liberty, the Court upheld the stringent provisions of the Terrorist and Disruptive Activities (Prevention) Act, which systematically denuded criminal procedure safeguards. The TADA was repealed by Parliament soon after, in the face of sweeping criticism. More recently, the draft women’s rights bill put out by the Delhi government has the first mention of non-discrimination on the grounds of sexual orientation, two years after the Supreme Court upheld the constitutionality of Section 377.

While these are merely anecdotal references, there is something amiss when whatever protection is accorded to civil rights, is won in majoritarian institutional fora, and lost in the constitutional court. I think this points to a need to fundamentally reappraise the institutional role of the Supreme Court within the Indian constitutional scheme. Over the last three decades, a narrative has developed that has characterised the Court as activist and interventionist, aggressively going beyond the text of the Constitution to find and enforce new rights, and coaxing or goading a moribund executive into performing its mandated functions. This narrative is based entirely on the Court’s PIL jurisprudence. Supporters have praised the Court for fulfilling the vacuum left by a non-functioning executive and fractious coalition politics, and for interpreting the Constitution in a way that is “pro-people”; critics have accused the Court of violating the separation of powers and encroaching into the domain of elected representatives. But in all this debate over whether the Supreme Court has gone beyond its mandated functions and whether that is justified, the question is rarely asked now whether the Court is effectively doing what it is uncontroversially required to do: protect civil rights under Part III of the Constitution. Does the fact that the Court has, more and more, begun to resemble the executive in its sweeping directions and its rhetoric, bear any connection with the gradual erosion of its counter-majoritarian role in protecting civil rights? We need to ask not only what (if anything) we have gained through “social action litigaton” (what one scholar describes – in my opinion with extreme inaccuracy – as “demosprudence”), but what we have lost with a Court that has become – as Lord Atkin once said – “more executive-minded than the executive.” And my sense is that with an honest analysis, we might find that what we have lost has not been worth losing after all.