[This is a guest post by Kartik Kalra. This piece is the second of a two-part series on the evaluation and application of a rekindled framework to test protective discrimination under Article 15(3). Part One can be accessed here.]
In the previous post of this two-part series, I have proposed a four-pronged test that is capable of navigating the thin line between recognizing and entrenching stereotypes when evaluating the saving of discriminatory laws under Article 15(3). To recall, this test consists of the following prongs:
- the law must be based on stereotypes that are quantitatively verifiable;
- the stereotype must be perpetuated in pursuance of remedying historical disadvantages faced by women;
- there must be no availability of a lesser-discriminatory alternative than the impugned law; and
- the advantage conferred on the historically disadvantaged group (i.e., women) must be greater than the disadvantage generated via the perpetuation of stereotypes.
In this piece, I apply this framework to the pensionary regime in general and remarriage-related Pension Cessation Rules (“PCR”) in particular, demonstrating the test’s ability to dismantle stereotypes without causing tangible disadvantages to women as a class. In doing so, I first introduce the judgement of the Queen’s Bench Division in Green v. Metropolitan Police Commissioner, also discussing the nature of Indian PCRs and the type of constitutional challenge they are susceptible to. Following this, I evaluate PCRs within Article 15(1), showing their indirectly discriminatory nature. Finally, I apply the four-pronged test to PCRs and propose a possible narrowing of the sex-based class to a dependency-based one, preventing the active entrenchment of stereotypes using the test’s third prong.
Remarriage Causing Pension Cessation
Earlier this year, the Queen’s Bench Division of the United Kingdom delivered its judgement in Green v. Metropolitan Police Commissioner, where it upheld a rule that denied pensionary benefits to widows on remarriage. Sharon Green, the lead petitioner, was the wife of a police officer who died during service. After twelve years of staying single and surviving off the pension she received following her husband’s death, she found a partner near her street with whom she envisioned a future. Regulation C9 of the Police Pension Scheme, 1987, however, stood as an enormous obstacle, which mandated a cessation of pensionary benefits on her remarriage or on continued cohabitation with a partner. Green was presented with two options: either continue to survive off the pension and abjure from entering into a romantic relationship, or to enter into one but sacrifice her livelihood.
The condition of remarriage leading to a cessation of pensionary benefits is omnipresent in Indian law, expressly mentioned u/ss. 50(8)(a) of the Central Civil Services (Pension) Rules, 2021, 49(6)(i) of the Tamil Nadu Pension Rules, 1978 and 6.17(4)(i)(a) of the Punjab Civil Services Rules, 1984. This condition is also present, inter alia, in the service rules formulated by Haryana, Jammu and Kashmir, Madhya Pradesh and Rajasthan. Judicial review of such rules along with the regime of pensionary benefits presents a perplexing challenge that I have discussed in the previous post, given that the law’s validation perpetuates sex-based stereotypes and its invalidation causes immediate, tangible disadvantages to women.
The challenge to rules that have the effect of perpetuating sex-based stereotypes occurs within Article 15(1), which prohibits discrimination (both direct and indirect) on grounds of religion, race, caste, sex and place of birth. Such rules can be saved under Article 15(3) if they constitute a “special provision for women”. Presently, under Article 15(1), the constitutional assessment of laws perpetuating stereotypes via direct discrimination yields a direct conclusion of unconstitutionality as held in Navtej (¶438-9), while those doing the same via indirect discrimination is subject to a proportionality-backed justification by the state as held in Nitisha (¶87).
PCRs and Article 15(1)
At this stage, it would be important to note that Indian PCRs, as opposed to the unamended Regulation C9 of the United Kingdom, do not generally discriminate directly on the basis of sex. An exception to this could be ss. 87 of the Pension Regulations for the Air Force, 1961 and 133 of the Pension Regulations for the Army, 2008, both of which deny pensionary benefits to a widower. By and large, however, most states recognize the eligibility of both widows and widowers to obtain pensionary benefits that cease at remarriage. The constitutional challenge, therefore, lies in indirect instead of direct discrimination.
Indirect discrimination under Article 15 concerns disparate impact: neutral rules affect particular groups differently due to pre-existing structural disparities. It serves as a mode to confirm the denial of equality of opportunity from the disproportion of outcomes. Nitisha adopted the test in Fraser v. Canada to address indirect discrimination, which asks whether a neutral rule disproportionately affects a particular group, and whether the impugned rule has the effect of reinforcing, perpetuating, or exacerbating the disadvantage faced by that group (¶86). There is no defined standard of empirical evidence necessary to establish indirect discrimination, and the Court is empowered to make use of its common sense in assessing disparate impact (¶82). Who would be affected disproportionately by a law on the cessation of pensionary benefits on remarriage, men or women?
Data shows that men occupy a disproportionate number of jobs in state employment, and therefore widows are the primary recipients of pensionary benefits until they remarry. PCRs act as a deterrent in their remarriage, for the law demands that they choose between a financially secure life of solitude or an impoverished life of love. Either way, women as a class are disadvantaged: socially and psychologically if they choose the former, and economically if they choose the latter. It would be important to note that Green held that PCRs cannot be characterized as infringing privacy, for the effect of the law is not determinative of the engagement of constitutional rights (¶78). In Indian jurisprudence, however, it is solely the effect of a limitation on the individual that determines the engagement of a constitutional right. PCRs have the effect of preventing women from exercising their rights of intimate decision-making in choosing their marital (or otherwise) partners, which has been repeatedly held to constitute a facet of their right to privacy. Shakti Vahini v. Union of India held the choice to marry a person of one’s choice to be a facet of individual autonomy; Shafin Jahan v. Ashokan KM held the “choice of a partner whether within or outside marriage” to lie “within a core zone of privacy, which is inviolable”; Arunkumar v. Inspector General of Police held the decision of a transgender woman to marry a man to be a facet of her privacy; and Indra Sarma v. VKV Sarma held the decision to cohabit without marriage to be an intimate and personal decision.
The state, in effect, makes its citizens choose between a fundamental right and a compelling financial necessity, which leaves them with no real choice. In literature and case law, a state demand of the citizen’s relinquishment of a fundamental right is navigated within the framework of the doctrine of unconstitutional conditions. Under this doctrine, the way it has been developed in India, the engagement of a fundamental right is triggered whenever the affected individual can show that the state’s demand is “unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution” (St. Xaviers’ College v. State of Guajrat, ¶158). This is undoubtedly the case with PCRs, for the state demands that an individual choose between their rights of intimate decision-making or their financial well-being. There is, therefore, a prima facie engagement of their fundamental rights. The evaluation of the reasonableness of the restriction via PCRs, however, is separate, and would occur within an Article 21 enquiry.
In sum, PCRs disproportionately affect women and have the effect of depriving them of their freedom of intimate decision-making. On this basis, I submit that PCRs, as they currently stand in India, are indirectly discriminatory against women.
PCRs and the Four-Pronged Test under Article 15(3)
At this stage, it must be noted that a failure in meeting the Fraser criteria does result in a direct conclusion of the law’s unconstitutionality, for the law can be saved by a proportionality-based justification offered by the state. While this justification can be offered to save the law from being indirectly discriminatory in the first place, a separate exercise will have to be carried out to save it using Article 15(3). The proposed four-pronged test is of a higher scrutiny as compared to the traditional proportionality test, for it additionally requires the elimination of over-inclusiveness in the law’s application. Given the higher scrutiny of the proposed test, I shall directly examine the possibility of saving the law under Article 15(3) instead of evaluating its justifiability under Article 15(1). Lastly, it must be noted that PCRs would be saved by Article 15(3) only insofar as they function to cease the pension of widows, not of widowers.
- Quantitative Verifiability
The stereotype used and perpetuated by PCRs pertains to the economic dependence of women: they were first dependent on their earlier husband, then on the state, and now on their new husband. The verification of this stereotype must consider, inter alia, the proportion of women’s representation in state employment (around 20%), sex-based division of the total recipients of pensions, and the proportion of unmarried widows dependant on the state (around 90%). The empirical standards pronounced in Nitisha may also be deemed to apply here, meaning that the use of common-sense in the task of determining the quantitative verifiability of stereotypes shall be encouraged (¶82). In the South African Constitutional Court’s judgement in President v. Hugo, the judges concur that the stereotype of women as primary care-givers is true in fact without necessitating intense fact-finding endeavours (¶37, 77, 113). Economic dependence of women, therefore, is a verifiable stereotype and PCRs would satisfy the first prong.
2. Remedying Historical Disadvantage
The economic exclusion of women is a historical process of the solidification of the public-private divide, via which women have been relegated to the domain of the household where the “writ of the king doesn’t run”, and the man becomes the king, the sole breadwinner of the household. It is this historical subordination of women that pensionary benefits function to allay: they recognize that structural factors cause the present economic dependency of women, and that the state takes on the task of eliminating vagrancy that may be caused due to unfulfilled dependency. Correspondingly, PCRs also acknowledge this historical disadvantage by ceasing pensionary benefits when the woman has another partner. Fundamentally, this prong ensures that the vice of essentialism is not committed by portraying women as subordinate or inferior, instead acknowledging the historical and structural reasons that necessitate protective measures.
3. Availability of Lesser-Discriminatory Measures
The test of finding lesser-discriminatory alternatives requires, therefore, the investigation of a narrower class, the application of the law on whom doesn’t jeopardise stereotyping an entire sex-based (or otherwise) class a certain way. There exist such alternatives that are presently operational in India. The class subject to PCRs is the same as that receiving pensions, the possible narrowing of which must be evaluated to determine the availability of lesser-discriminatory alternatives. Consider, for example, Section 133(b) of the Pension Regulations of the Army, 2008, which introduces an additional variable to determine the eligibility to receive a widow’s pension: the maintenance of children. This law holds that if the widow is supporting the children borne out of her previous marriage, she shall be entitled to a full pension; and if she isn’t supporting her children after remarriage, she will be entitled to an amount between 30 and 60% of her original pension. The class eligible for the receipt of a full pension becomes smaller and reflects the variables affecting true dependency, veering the classification away from a sex-based one to a dependency-based one. In addition, the Indira Gandhi National Widow Pension Scheme applies to women who earn below a prescribed level, and the Swadhar Greh Scheme applies to women who are victims of difficult circumstances and require institutional support. There exist, therefore, alternatives measures that are able to narrow the classification, avoiding overinclusiveness and refraining from perpetuating the stereotype of women as dependent. PCRs can, therefore, be remodelled to cease benefits on the attainment of economic independence, not on a change in marital status.
4. Weighing of Advantages and Disadvantages
Given the availability of lesser-discriminatory alternatives that are able to meet the state’s eventual goal of preventing vagrancy, the law would have to be re-evaluated to make it conform to the third prong. For the fourth prong, we must weigh the advantages that women as a class receive under the pensionary regime with the disadvantages caused to them due to the perpetuation of sex-based stereotypes. Judges would arrive at different outcomes for this prong, as the contrasting reasonings offered by O’Regan and Krigler JJ. in President v. Hugo show. While O’Regan J. held that a law cognizant of stereotypes can confer meaningful advantages on women in the present (¶112), Krigler J. held that the perpetuation of sex-based stereotypes is inevitable in their recognition and must be avoided to the greatest extent (¶80).
I consider that an unwavering commitment to constitutional ideals at the cost of livelihoods is also bound to produce sub-optimal outcomes. A reading of this prong must ordinarily be construed in favour of the impugned stereotypical law, given that it reaches this stage after a confirmation of its application to the narrowest possible class. The pensionary regime confers an obvious advantage on women as a class in the form of tangible benefits of pensions, and a declaration of its unconstitutionality due to cessation on remarriage is bound to produce significant disadvantages for women in the present.
Conclusion
Through this two-part series, I have attempted to demonstrate the degree of perplexity one encounters in navigating the conflict between the pursuit of constitutional ideals and the immediate concern of addressing vagrancy via the recognition of verifiable stereotypes. The present framework under Article 15(3) proves inadequate to navigate this question, for it lacks a determining principle to save some laws and reject others. In response to this, I developed a four-pronged test that requires that the investigation of a narrower class within the sex-based classification to whom the impugned law applies. The four-pronged test, while easily susceptible to a critique of the kind levelled in Frontiero v. Richardson concerning the greatest possible avoidance of all sex-based classifications, bears fidelity to social iniquity in fact instead of a dogmatic commitment to constitutional ideals. This, I propose, best balances the twin considerations of dismantling stereotypes and eliminating vagrancy.
The dilemma between the recognition and entrenchment of stereotypes can be vividly observed in the functioning of pensionary benefits, a site for the four-pronged test’s application. The application of this test to the pensionary regime yields a general conclusion of the law’s constitutionality, provided that the class to whom they apply is narrowed, and the classification veered away from a sex-based one to a truly dependency-based one. The process of dismantling stereotypes is long and sustained, one where the law both follows and guides social progress. Immediate declarations of unconstitutionality benefit none, eliminating stereotypes only in law while they continue to thrive in fact. The four-pronged test, therefore, serves as a meaningful instrument in navigating this dilemma, upholding advantageous stereotype-based laws at the present while guiding the stereotypes’ ultimate dismantling.