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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 DelhiAs 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 According to Section 9, “when either the husband or the wife has without reasonable excuse withdrawn from the society of the other, the aggrieved party may apply by petition to the district Court for restitution of conjugal rights and the Court, on being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 According to an Explanation, the burden of proving reasonableness lies upon the party who has withdrawn from the society of the other.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.

 

 

 

 

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Article 15 and Typologies of Discrimination – II: Disparate Impact

To recapitulate our discussion in the last post: disparate impact occurs when policies neutral on their face nonetheless place burdens upon particular groups (e.g., promotion policies dependent upon spending a specific number of days in a year at office have such an impact upon pregnant women). The question is whether Article 15 is attracted in such cases. We have noticed that opinion is divided in other jurisdictions, and the text and structure of Article 15 appears to militate against this conclusion.

Let us now turn to constitutional philosophy. What philosophical reasons exist for arguing against disparate impact generally? It is the Hayekian idea that a violation of liberty must necessarily be specific and intentional to be so. To repeat an example we have examined before on this blog: if someone locks me up in a house, that is a violation of my freedom; however, my inability to fly unaided because of my body structure and the forces of gravity cannot properly be called a violation of freedom – it is a simple inability. Analogising from this, Hayek argues (described here) that the background economic and social structure is much like the forces of gravity and my body structure: if I am too poor to buy a ticket to a movie theatre, that is terribly unfortunate, but it isn’t a violation of my freedom the way it would be is someone physically barred my access to the said theatre even after I had purchased the ticket. Against this, we can place the arguments of G.A. Cohen, for whom the social and economic structure, being State-created and then State-maintained (if I try to get into the theatre without a ticket, the police will physically bar me from doing so) is indeed a violation of freedom. Applying the arguments to disparate impact: let us assume – hypothetically – that because of various economic and social reasons, Dalits are by and large unable to access a good primary education. Correspondingly, they fail to do as well as others on “merit based” college entrance examinations. A Hayekian would argue that this is no discrimination, because the test itself classifies you on your intellectual ability, and the reasons why Dalits cannot make it have nothing to do with the intentions/purposes of the test itself. Readers can construct the opposing argument for themselves.

What about our Constitution? In discussing free speech, we have argued that our Constitution is more Cohen than Hayek, but leave that be for a moment: previously, we have discussed how many aspects of the Indian constitution are transformative in the sense that they seek to replace and transform prior value and ethical systems with different ones altogether. Article 15 is a classic example of this, seeking to transform India from a society in which caste, religion and sex-based discrimination was rife and invidious into one in which such discriminations were entirely invalidated.

But let us think deeper about this. Discriminatory practices did not exist in a vacuum – they were grounded upon a core set of ideas that linked a person’s worth with his birth. Various acts are simply the concrete manifestations of the ideas at play, and it is that that a transformative constitution attacks at its root. In other words, Article 15 doesn’t only seek to legally abolish discriminatory acts and policies – it seeks a transformation of the set of moral, ethical and political values that justified the said discrimination in the first place. But if this is true, then as long as the impact of that value-system continues, the central purpose of Article 15 has not been fulfilled. So suppose that for centuries, Dalits were socially and educationally suppressed because of assumptions about their human worth; because of this, their present social and economic situation is such that an access to good quality primary education is out of reach; and this, in turn, means that they do worse on college entrance examinations. Here, disparate impact is directly traceable to that very set of societal assumptions, policies and practices that Article 15 was seeing to transform out of existence.

Another example may make thing even clearer. Here is an excerpt from a famous article by Joan Williams:

“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.'”

Let us, for the purposes of argument, accept the truth of this critique – that is, wage differentials are directly linked to assumptions about the proper role of women in bringing up a family. But it is also a historically-accepted fact that such assumptions were themselves predicated upon assumptions of women’s ability and character that treated them as less worthy or deserving of respect than men – and furthermore, women themselves had no say in the construction of these assumptions.  Now if the purpose of Article 15 is to transform prior values celebrating oppression to new ones founded on equal respect and valid participation and consent, then we must also accept that a more concrete purpose of Article 15 is to replace the existing set of values that viewed the proper role of women as being confined to the home, the kitchen and child-care – because, as a matter of historical fact, these values are predicated on denying women both respect and agency (the fundamental Article 15 ideas). In which case, a disparate impact upon the earnings of men and women that is founded upon those very set of values (as the Williams’ article shows) is not only problematic, but constitutionally problematic.

In this context, President of the Republic of South Africa v Hugo,  decided by the South African Constitutional Court, is a classic example of transformative constitutionalism working in precisely this fashion. To celebrate his inauguration, President Mandela pardoned a number of prisoners, all of whom shared one common characteristic: they were mothers of children under the age of 12. This move was challenged on the grounds of sex-discrimination. President Mandela argued that his act was motivated by concern for the welfare of the children, who were deprived of the care of their mothers at a young age. Over a strong dissent from Kriegler J., the Constitutional Court upheld the pardons for certain reasons that we need not here go into; but what is of singular moment is how the Court dealt with Mandela’s reasoning:

“The generalisation upon which the President relied is a fact which is one of the root causes of women’s inequality in our society. That parenting may have emotional and personal rewards for women should not blind us to the tremendous burden it imposes at the same time. It is unlikely that we will achieve a more egalitarian society until responsibilities for child rearing are more equally shared… at the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.”

Readers will note that the argument bears the same structure and form as our discussion above.

What objections may be made to our contention? Now it may be argued that after the Constitution came into being, Article 15 lifted women (and Dalits) to an equal status, and therefore, if presently there is a disparate impact, it must be because of individual choice – an argument the US Seventh Circuit Court of Appeals accepted in EEOC v. Sears. But there are two problems with such a suggestion: first, as we have argued before in this blog, such an approach places the burden of change upon the wrong party; not only are we accepting that a set of oppressive values and practices existed, we are also requiring those subjected to that regime to take it upon themselves to change it once the formal barriers have been removed. That does not seem fair. Secondly, as Akhil Amar argues in the context of the American 19th Amendment that gave women the right to vote, constitutional changes of this sort are not merely prospective and forward-looking – they are also admissions of deep, prior historical wrongs, and a further promise to make amends. And if that is true for Article 15, then one obvious way of making amends is a disparate impact test, that places the burden upon the government to show that its actions, that negatively affect hitherto disadvantaged and wronged groups, are necessarily and appropriately called for in the specific circumstances.

This, then, is my suggestion: Article 15 does apply to disparate impact situations, but in a qualified way: where disparate impact is the result of those lingering prejudices, practices, values and ideas that it was the Article’s purpose to eliminate, a constitutional challenge is called for.

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Article 15 and Typologies of Discrimination – I: “Grounds”

Article 15 prohibits discrimination on “grounds” only of religion, race, caste, sex, place of birth or any of them. In previous posts, we have examined the scope of the non-discrimination clause with respect to its enumerated (and unenumerated) categories. It is worth nothing, however, that the seemingly neutral word “grounds” itself incorporates a set of political choices that ought to be examined and critiqued. In this post, we shall analyze two such choices.

First, in choosing the word “ground“, the Constitution, by exclusion, makes motive irrelevant. In R(E) v. Governing Body of JFS, the UK Supreme Court invalidated a Jewish school’s admissions policy under the Race Relations Act, that prohibited discrimination on the grounds of race. The school argued that its policy was actually aimed at selecting orthodox jewish students, which was a question of religion, not of race. Irrelevant, said the Court. Whatever the motive or purpose of the admissions policy, the test that it used for selection was race-based (orthodox jewishness was a function of one’s descent along that matrilineal line). Thus, while the motive behind the classification was arguably legitimate, the grounds on which said classification was made (in order to fulfill the motive) was not, and that was all that mattered.

Suppose, for instance, that the Delhi Police wishes to recruit only Hindi speakers into the force (a form of linguistic discrimination, which the Article 15 does not prohibit); in order to do so, it limits its selection only to people born in Delhi, thinking that this is the most convenient way of making the selection without actually having to test language skills. Such a classification would be vulnerable under Article 15 because while the Delhi Police’s motive (selecting particular language speakers) conforms with Article 15, the grounds it has chosen do not. It is obvious – in addition to the text – to see why this must be so: if motive was brought into play, then the difference between Articles 14 and 15 would dissolve: in the Delhi Police example, for instance, we would be back to analyzing whether there was intelligible differentia between Delhi-born and non-Delhi-born persons that bore a reasonable nexus to the governmental objective of an all-Hindi-speaking police force. If that were so, then Article 15’s specific selection of particular categories would become redundant (this, as most readers would have guessed, bears a close connection with the debate over standards of scrutiny under Article 15, a question we do not have the space to consider at this point). The reason why Article 15 exists is because certain groups have, historically, been invidiously discrimination against on the basis of nothing more than rank prejudice, to the extent that there now exists a near-irrebuttable presumption that classifications targeting such groups are constitutionally suspect. By singling out those categories, Article 15 serves a unique purpose that may not be conflated with the more abstract, formal equality guarantees of Article 14.

Secondly, consider the problem of disparate impact. Disparate impact occurs when facially neutral policies nevertheless cast a disproportionate burden upon specific groups. Let us take a very simple example: promotion in a job is conditioned upon being at work for at least eighty percent of the year’s designated working days. Now, the “ground” upon which the classification for promotion/non-promotion is being made is facially neutral in that it relates to time spent at work; but clearly, pregnant women as a group will be unable to meet the condition imposed. Thus, the promotions policy will have a disparate impact upon pregnant women – as a group, their chances of promotion are reduced to negligible. As is obvious, disparate impact plays a crucial role in affirmative action controversies, labour and workplace law, sex discrimination and so on.

Disparate impact goes under the name of “indirect discrimination” in European jurisprudence. Article 2(b) of the 2000 Council Directive states that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” Whether or not “particular disadvantage” occurs in a particular case is, of course, a factual enquiry, which admits of no bright line tests. For example, assume a governmental institution has sixty percent men and forty percent women, but in every promotion round, eighty percent of the promotees are men – that is the kind of statistic that will establish presumptive indirect discrimination, and place a high burden upon the State to argue that it is “appropriately and necessarily” mandated by a legitimate governmental objective.

Disparate impact, on the other hand, was rejected by the American Supreme Court in Washington Davis,  where the use of verbal skills as recruitment tests in the Washington Police Department was upheld despite disproportionately affecting African-Americans, since no discriminatory purpose was demonstrated. Subsequently, Congress overturned this decision by amending the Civil Rights Act, which in turn was the subject of a contentious Supreme Court case in 2009, Justice Scalia arguing that a disparate impact test violated the guarantee of the equal protection of laws, and the Constitution’s aim of being “color-blind“. The argument here is that by making disparate impact constitutionally relevant, you are violating the Constitution’s commitment to non-discrimination by picking out certain groups over others for favorable treatment. To go back to our pregnancy example – a Scalian would (presumably) argue that making a special exception for the promotion of women would violate Article 15 because it placed men at a legal disadvantage by taking specific sex-based characteristics into account, and thereby discriminating on the grounds of sex. 

The contrasting approaches in the EU and the United States suggest that the relationship between disparate impact, equality and non-dicrimination is a contested one. What does our Constitution say? There are two reasons, grounded in text and structure, that argue against reading disparate impact into Article 15. First, the use of the word “grounds”, as illustrated above, seems to limit the clause to cases where the basis of the classification is one of the prohibited categories. And secondly, the Constitution itself seems to recognize the perils of disparate impact by enacting affirmative action provisions for education and employment – Articles 15(4) and 16(4) . In other words, by providing the government with the tools to remedy the effects of disparate impact that would result from a technical reading of Article 15(1) (and 16(1)), the Constitution mitigates its effect – and thus, by specifically providing for those situations, excludes all other cases by necessary implication (“expressio unius…”)

Unfortunately, the position is complicated by the shift in the Court’s jurisprudence after the 1975 case of State of Kerala v. NM Thomas, where the Court, departing from its established position that 15(4) and 16(4) were exceptions to the equality provisions of 15 and 16, held instead that they were “emphatic expressions” of the basic idea of substantive equality already contained within 15 and 16. In other words, post-Thomaswe are to assume – for instance – that the constitutional justification for affirmative action lies not in 15(4), but in 15(1), and the conception of equality and non-discrimination it embodies. What, precisely, is the content of this concept, and does it extend to other cases of disparate impact? We do not know.

In the next post, we shall consider what our constitutional philosophy has to say about this.

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