Guest Post: The Kerala High Court’s Judgment Reinforces the Need for an Anti-Discrimination Law

[This is a guest post by Megha Mehta.]

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The Kerala High Court has recently held in Dr. Prasad Pannian v. The Central University of Kerala that sex-based discrimination per se is not covered by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 [“POSH”]. According to the High Court, sexual harassment necessarily mandates unwelcome behaviour with sexual undertones (Dr. Prasad Pannian, ¶13). Therefore, the creation of a hostile work environment for a woman employee will not be actionable under POSH unless it is accompanied by direct or implicit sexual advances.

This definition of sexual harassment as being limited to sexual conduct, as outlined under both POSH and the Supreme Court’s Vishaka guidelines (Vishaka v. State of Rajasthan, (1997) 6 SCC 241) originates from the U.S. Equal Employment Opportunity Commission’s (“EEOC”) guidelines. As I have pointed out in an earlier post, feminist scholars in the U.S. have long-since critiqued this conceptualization for propagating a “desire-dominance paradigm” which exclusively focuses on sexual advances by male supervisors against female subordinates. This paradigm excludes equally discriminatory but non-sexual conduct against employees of all genders who challenge hegemonic masculinity. For example, repeated sexist comments on an employee’s performance can undermine their job prospects as much as unwelcome sexual advances, though the degree of social stigma attached to sexual conduct may be higher.

In other words, sexual desire is not the driving factor behind sexual harassment in most cases, though it may be an important component. Sexual harassment is primarily used as a “technology of sexism”, i.e., a tool for enforcing underlying gender hierarchies in various institutional settings. Further, current definitions of sexual harassment ignore that cisgender women are not the only victims of harassment, though they are disproportionately impacted. LGBTQ workers are equally vulnerable to harassment for challenging gender and sexuality norms. Moreover, men often commit same-sex harassment against other men whom they consider as being too “femininized” for the job, as is common in workplace/college hazing rituals. Similarly, women may also harass fellow women employees who are perceived as transgressing societally prescribed boundaries of femininity (See here).  

The manner in which we define sexual harassment has significant implications for the framing of redressal strategies. Though Article 15 of the Constitution of India (“Constitution”) prohibits discrimination in access to public spaces, there is no domestic equivalent of say, the U.S. Civil Rights Act of 1964, or the U.K. Equality Act 2010, for enforcing this prohibition. Similarly, though Article 16 guarantees equality of opportunity in State employment, there is no legislation or agency for monitoring workplace discrimination in the private sector, or even the public sector for that matter. Instead, POSH provides for the constitution of Internal Complaints Committees (“ICCs”) at workplaces to inquire into sexual harassment complaints. It also provides for Local Committees to inquire into cases in the unorganized sector, or where the complaint is against the employer.

Theoretically, ICC inquiries are supposed to be a more convenient mechanism than criminal trials as they involve less rigorous procedures and lower evidentiary burdens. However, in practice, ICC inquiries re-enact the same adversarial he-said, she-said conundrum. This detracts from how the employer or the general workplace environment may have facilitated gendered harassment, e.g., through a “locker room talk” atmosphere. Hence the failure to enforce gender-cum-labour rights is reduced to a “private affair between two private parties”.

Moreover, since ICC’s are constituted from within the same hostile workplace environment, and may include people who are acquainted with the harasser, this creates conflict of interest for conducting the inquiry impartially. They are also unlikely to recommend structural reforms. Consequently, if a sexual harasser knows that their employer is unlikely to treat complaints seriously, this increases their incentive for committing hostile acts. It also means that the victim is less likely to speak out due to fear of retaliation (See here for a more detailed analysis). This is precisely why the Justice J.S. Verma Committee on rape law reform had recommended constituting independent Employment Tribunals to adjudicate sexual harassment complaints (See here, p 130), though arguably ICCs should continue to remain an option for those who find internal remedies more convenient.

Further, neither the Vishaka guidelines nor POSH provide for claiming civil reliefs from an employer who has failed to ensure workplace equity. Notably, the genesis of Vishaka was a public interest litigation highlighting the injustice meted out to Bhanwari Devi, a social welfare worker for the Rajasthan State government, who was gangraped by upper-caste men in her village. The assault was allegedly in retaliation to Bhanwari Devi’s campaign against the practice of child marriage prevalent in the upper-caste community. However, the Supreme Court refrained from addressing the State’s failure to protect Bhanwari Devi from, or compensate her for, the caste and gender-based violence her work engendered. Instead, it noted that criminal adjudication against the perpetrators was sufficient to impose liability (Vishaka, ¶2). Similarly, POSH only posits non-compliance with its mandate as a criminal offence against the State, for which the maximum penalty is a fine of Rs. 50,000 (POSH, Section 26).

This position appeared to have changed when the Supreme Court recently held that under Vishaka, even non-sexual acts of prejudice and discrimination against women employees will constitute a violation of their fundamental rights under Articles 14 and 21 of the Constitution (Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394). Accordingly, a woman may claim compensation from her employer for failing to redress such violation of her rights. I had opined in my earlier post (See supra) that this decision paves way for a broader definition of sexual harassment, with an emphasis on unwanted discrimination, not desire; and institutional, instead of individual liability. Prior to this, the Delhi High Court had also noted that sexual harassment is only a species of sex-based discrimination, referring to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) (Punita K. Sodhi (Dr.) v. UOI, (2010) 172 DLT 409, ¶82).

Unfortunately, Dr. Prasad Pannian shows that Indian sexual harassment law is yet to break out of the desire-dominance paradigm. The High Court circumvented Nisha Priya Bhatia by drawing a distinction between cases decided under Vishaka (such as the former), and the present case, which was instituted under POSH. Since the text of POSH circumscribes the definition of sexual harassment to sexualconduct, the High Court held that it was bound by the same. Further, that there was no need for referring to Vishaka or the CEDAW guidelines for interpreting the term more expansively. Therefore, the High Court chose to adopt a strict, textualist interpretation instead of referring to working women’s constitutional right to equality and dignity of life.

Dr. Prasad Pannian sets a troublesome precedent by allowing the text of the legislation, i.e., POSH, to control the constitutional guarantee against sex-based discrimination, instead of vice versa. On the other hand, in the High Court’s defense, judicial revisionism can only plug legislative gaps so far. Even if the definition of sexual harassment under POSH is interpreted in accordance with Nisha Priya Bhatia, it will continue to exclude forms of harassment such as sexual orientation discrimination, transphobia and same-sex harassment. It may also be argued that given the special stigma attached to sexual offences, sexual harassment and gendered discrimination need to be defined separately for legal purposes, though both are ultimately symptoms of the same malaise.

Further, POSH demarcates sexual harassment as a separate labor rights violation instead of accounting for its intersectionality with other forms of discrimination. There are no special procedures or aggravated penalties for protecting victims of caste-based or economically coerced sexual violence at the workplace. The Local Committee mechanism is largely inaccessible to women working in the informal sector, who are particularly vulnerable to such exploitation. Domestic workers don’t even have the option of civil relief against the individual respondent-they are legally compelled to pursue a police complaint (POSH, Section 11(1)).  POSH is also ill-equipped to deal with cases of third-party harassment, e.g., street harassment. In such cases, it is the State, rather than any specific employer, which is best placed to intervene to make public spaces safer for women.

Hence, the decision in Dr. Prasad Pannian reinforces the need for a holistic anti-discrimination legislation which mandates State and institutional liability for maintaining equality of opportunity at the workplace and equal access to public spaces. It also needs to be explored whether the constitutional guarantees under Articles 15, 16 and 19(1)(g) should be amended to expressly prohibit discrimination in the private sector, particularly in the context of housing and employment. Until then, courts will continue to compartmentalize sexual harassment within silos of individual sexual misconduct against women, instead of tracing its linkages to broader patterns of discrimination and inequality.

Gender Equality in the Armed Forces

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

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

Babita Puniya

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

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

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

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

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

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

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

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

Annie Nagaraja

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

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

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

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

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

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

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

Analysis

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

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

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

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

Guest Post: Sex Discrimination and Pregnancy – Reviewing Khusbu Sharma’s Case

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

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[This is a guest post by Satyajit Bose.]

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

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

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

The Equality of Opportunity

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

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

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

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

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

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

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

Pregnancy and the Meaning of “Choice”

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

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

 

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

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

Conclusion

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

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?“

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Supreme Court Decriminalises Adultery

Today, in Joseph Shine v Union of India, a Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, and decriminalised adultery. As we have discussed before on this blog, this was not a difficult case. The asymmetric nature of the provision – which punishes only the male participant, and that too only on the instance of the husband, and also not if the husband has “consented” or “connived” with respect to the act – is clearly based upon gendered stereotypes that view women as the property of their husbands, and also, as sexually submissive, liable to be “seduced” by men at any moment. Once that fact is clearly understood, there is precious little that can be said to defend the provision under the Constitution.

The four concurring opinions proceed along expected lines. They hold that the asymmetric character of the provision is indeed grounded upon ideas of gender subordination, is therefore “manifestly arbitrary”, and fails the test of Article 14 of the Constitution (and also puts paid to the State’s argument that the provision is necessary for preserving marriages). This would, of course, leave the door open for the legislature to recriminalise adultery through a gender-neutral provision. The Court, however, closes that door as well, noting that criminalisation of what is essentially a private matter – with no broader societal interest – would be an infringement of privacy. These two findings together mean that adultery is gone from the statute books – and will stay gone.

Equality and Non-Discrimination 

In addition to these – expected – lines of reasoning, there are certain interesting aspects on the issues of equality and discrimination in the concurring opinions of Justices Chandrachud and Malhotra, which carry forward the views that they had expressed last month in Navtej Johar v Union of India (the 377 judgment). Justice Chandrachud, for example, reiterates his argument that Article 14 analysis must go beyond the traditional classification test, and focus on substantive disadvantage:

Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. (para 38)

It is important that this argument is made not in the context of Article 15(1), but Article 14. Framing Article 14 in the language of disadvantage means that the five groups that are not mentioned in Article 15(1) (sex, race, caste, religion, place of birth), but are nonetheless analogous to those groups by also representing sites of structural or institutional disadvantage (such, as for instance, disabled persons), are entitled to a more searching and rigorous scrutiny under Article 14, than the traditional (deferential) rational classification standard.

Chandrachud J. then goes beyond Article 14, and tests the adultery provision on grounds of Article 15(1) (non-discrimination on the basis of sex) as well. Advancing his Navtej Johar framework of analysis – which combined a contextual  approach to understanding the effect of the law on the one hand, with an interpretation of Article 15 that prohibits distinctions based on class stereotypes on the other – Chandrachud J. finds that the adultery provision discriminates on grounds of sex, as it is founded in stereotypes about women’s sexual agency, and gender roles within the family. As part of this analysis, he makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the “private sphere.” This leads him to make the following important observation:

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage  In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. (paragraphs 51 – 52)

And, subsequently:

It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’ …  While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. (paragraphs 62 – 63, 67).

The interrogation of the public/private divide is, of course, a significant part of the longer-term project of transformative constitutionalism; here, however, it has two immediate implications. By holding that the family structure and the institution of marriage are not immune from constitutional scrutiny, Chandrachud J.’s concurrence casts a shadow over two provisions, both of which have been discussed before on this blog: the marital rape exception under the Indian Penal Code, and restitution of conjugal rights (Section 9 of the Hindu Marriage Act). The defence to the first is invariably the “preservation of the institution of marriage”, while the latter was, actually, upheld on the basis that “cold constitutional law” could not be introduced into the warmth of the home. Both these justifications are now invalid: what Chandrachud J.’s opinion clarifies is that the autonomy of a social institution (whether the institution of marriage, or the home) is always subordinate to individual right to autonomy, exercised within that institution. Or, to put it another way, the Constitution exists to democratise private relationships, breakdown inequalities and hierarchies within those relationships, and ensure individual dignity and freedom not simply against the State, but also against social institutions and structures.

Justice Malhotra also carries forward her reasoning in Navtej Johar. On Article 14, she holds that as the historical foundation of the adultery provision was, indisputably, in the premise that women were chattels, the classification that it draws (between who is aggrieved and who isn’t, and who can sue and who can’t) is vitiated by an illegitimate constitutional purpose. Therefore, while the classification may be intelligible, and there may exist a rational nexus with a goal, that goal itself (in this case, the subordination of women) is ruled out by the Constitution:

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. (paragraph 12.2)

This is an important step forward in centering the “illegitimate purpose” prong of the classification test under Article 14.

One last point: when adultery was upheld in 1954, it was upheld on the basis of Article 15(3) of the Constitution, which allows for “special provisions” to be made for women and children. Not punishing women for adultery was held to be a “special provision” for their benefit. All four opinions make it clear, however, that Article 15(3) cannot be pushed into service where the entire rationale of the law is discriminatory against women. Justice Malhotra articulates the point most clearly:

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation.” (para 14)

Treating Article 15(3) as an affirmative action provision (even though the language is broader) is, to my mind, an important step forward in articulating a clear and principles interpretation of this clause. Of course, as the example of President v Hugo shows us, this is not always as easy an enquiry as the adultery case allows. Often, disadvantage and stereotypes are bound up together, because stereotyping is the prelude to disadvantage. When you are trying to remedy disadvantage, then, sometimes you need to take stereotypes as your bases to do so. How the Court negotiates this, of course, is a question for the future.

Two Objections 

Two quibbles. The first is procedural. In 1954, the constitutional validity of the adultery provision was upheld by a five-judge bench. The present bench was bound by that. The Chief Justice and Chandrachud J. are both aware of this, and try to get around it. The Chief Justice argues that that case was on the “narrow point” of Article 15(3), while Chandrachud J. argues that it was on the distinguishable point of the woman not being made an abettor. I am unconvinced. Here is the first line of Yusuf Abdul Aziz:

The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution.

 

15(3) or no 15(3), abettor or no abettor, you can’t get clearer than this. The case was about a constitutional challenge to Section 497, and the constitutional challenge was rejected. Maybe there is a case that Article 21 was not raised, and that therefore, a five-judge bench could rule on that. I do think, however, that if Yusuf Abdul Aziz was to be overruled on the grounds of Article 14 and 15, a seven-judge bench needed to be constituted.

Secondly, at one point in his judgment, Nariman J. notes that Hindus never had the concept of divorce, because marriage was considered a sacrament. This is, with respect, historically inaccurate. It is true that among caste Hindus, divorce was an anathema; divorce, however, was frequent and accepted among lower castes, and this is a fact that has been recorded in multiple works of social and cultural history. It does, however, raise some interesting questions about what exactly do we talk about when we talk about transformative constitutionalism. As Karl Klare noted in the famous article that began it all, transformative constitutionalism is not simply about how you interpret the Constitution, but also about how law is taught and discussed. One important part of that is to focus more closely on the sources (both historical and otherwise) that are relied upon in judgments: for example, it is notable that, in a case of gender equality under the Indian Constitution, the first footnote in the Chief Justice’s opinion refers to John Stuart Mill, a British and white man, who lived in the 19th century. Transformative constitutionalism, I feel, must also deepen the sources that it relies upon – otherwise, we’ll still be decriminalising adultery while also making sweeping statements that are both incorrect and result in historical erasure, about the nature of marriage and divorce “among the Hindus.”

Guest Post: On the Gendered Criminalisation of Adultery

(This is a guest post by Dr. Tarunabh Khaitan, discussing the constitutional challenge to adultery, which is presently being heard by a Constitution Bench of the Supreme Court.)

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As the Supreme Court considers the constitutionality of a gendered criminalisation of adultery, is has the opportunity to reorient Indian fundamental rights jurisprudence in several significant, and necessary, ways.

Article 21

As Anuj Bhuwania has convincingly showed, the post-Emergency PIL-turn in the Supreme Court did nothing to fix the main weakness of our constitutional jurisprudence, represented by the now overruled judgment in ADM, Jabalpur—the refusal to take civil liberties seriously. Even as the Court became populist and developed a social rights jurisprudence, its record on civil liberties remained mixed at best.

Now, the Court has an opportunity to reinvigorate the guarantee of ‘personal liberty’ in Article 21 by underscoring firm liberal limits on the powers of the police state in relation to its citizens. It should also recognise that criminal law is a particularly blunt tool even when there is a genuine problem, and must be a tool of last resort (and must require very special justification). A robust articulation of personal liberty, and a rigorous proportionality test for its infringement will give the much-needed vigour to the guarantee of civil liberties protection under Article 21.

Article 14

While Article 21 should be the main vehicle for a finding of unconstitutionality in this case, the Court also has an opportunity to revisit its muddled Article 14 jurisprudence. In this chapter, I had argued that the arbitrariness doctrine under Article 14 confuses administrative law standards with constitutional review. I also showed that, contrary to what is commonly believed, the arbitrariness standard is usually deeply deferential to the state, and does not in fact leave Article 14 with sufficient bite. Finally, I argued that, at least with regard to legislative review, Article 14’s classification test should be reinterpreted in a less formalistic and less deferential manner than has hitherto been the case. In particular, the real-world impact of the classification, both material and expressive, should be part of the justification analysis under Article 14.

Article 15

The gendered dimension of the criminalisation of adultery also affords the Court with an opportunity–in conjunction with its anticipated judgments in the s 377 and the Sabrimala cases–to articulate a meaningful Article 15 jurisprudence. The criminalization of men only for adultery affords the court to identify that the disadvantage caused by discriminating can be both material as well as expressive. In three instant case, clearly the male adulterous partner suffers material and expressive disadvantage inflicted by criminalization. But even though she is not criminalized and may not therefore suffer material disadvantage, the expressive harm inflicted by the provision on women is significant. The symbolism behind the provision reflects attitudes that treat women as property of men. Section 497, IPC, which criminalises adultery, permits no other reading—it allows the husband to give his ‘consent or connivance’ to another man having sex with his wife, in which case no offence is committed. It is a collection of such social norms that support the institution of patriarchy, and their expressive force cannot be underestimated.

Furthermore, the provision also discriminates on the ground of marital status. But for the woman concerned being married, the offender would not have committed a crime. The social construction of gender norms is deeply intertwined with the norms surrounding marriage. Section 497 embodies a conception of marriage which entails the transfer of a woman (as property) from her father to her husband. Its gendered aspect cannot be separated from its connection with a particularly patriarchal understanding of the institution of marriage.

It is true that Article 15 is a closed list, and the Court has to do some creative interpretation to declare that ‘marital status’ is a constitutionally protected characteristic. There are two options before a progressive Court: either interpret ‘sex’ broadly to include ‘marital status’, given the deep sociological connection between the two. Courts in India, and elsewhere, have after all read pregnancy, maternity, sexual orientation, gender identity and other gendered characteristics as aspects of ‘sex’/’gender’ protection. A second alternative would be, as I argued in this paper, to read Article 15 as a sub-species of Article 14, and use the broader mandate of Article 14 to supply new grounds under Article 15. This second approach requires a caveat—while it is true that Article 15 is a sub-species of Article 14, the level of protection afforded under Article 15 is of a special character. Courts cannot continue to apply the same level of scrutiny to a law that distinguishes between sellers of tea and sellers of coffee (which is an Article 14 case, but not an Article 15 case), and one that distinguishes between Hindus and Muslims (which is an Article 15 case). This invites the Court to articulate a clear jurisprudence of the socio-political and economic conditions that elevate a characteristic for special protection under discrimination law (on this issue, see chs 2 and 3 of A Theory of Discrimination Law, especially pp 31-38 and 49-60).

Levelling-Up

To be clear, a finding of discrimination does not entail that the solution is to criminalise men as well as women. When two groups are treated differently, there are two ways of making them equal: either you bring the dominant group down to the level of the disadvantaged group (“levelling-down”) or you lift the disadvantaged group up to the level of the dominant group (“levelling-up”) (see, generally of A Theory of Discrimination Law, especially pp 153-4). It is clear that the right judicial response to discrimination in this case would be to level up by decriminalizing men, rather than level down by criminalizing women as well.

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(Dr Tarun Khaitan is an associate professor at Oxford and Melbourne, and the General Editor of the Indian Law Review.)

Asking the Right Questions: The Supreme Court’s Referral Order in the Sabarimala Case

In April 2016, a three-judge bench of the Supreme Court had heard arguments in a PIL challenging the Sabarimala Temple’s practice of barring menstruating-age women (between the ages of 10 and 50) from entering the precincts of the temple. In a brief order delivered today, the case has been referred to a five-judge bench for adjudication.

As we have discussed previously on this blog, the Sabarimala Case is a particularly complex one, involving the interaction of statutes, government rules, custom, religious practice, and the Constitution. For a satisfactory adjudication of the case, therefore, it is important that the Court ask the right questions. As we shall see below, today’s referral order succeeds in that enterprise, and lays the foundation for a clear verdict on the constitutional issues involved.

Recall that the justification for excluding menstruating-age women from entry into the Sabarimala is grounded in religious custom and usage. What complicates the issue is that there is also an existing legislation: the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965. Section 3 of that Act stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. Section 4 of the Act authorises persons in charge of places of public worship to make regulations for the “due performance of rites and ceremonies“, with the proviso that the Regulations cannot discriminate against Hindus of “any class.” Acting under Section 4, in 1965, the Kerala Government framed certain rules. Rule 3 of these Rules deprived certain classes of people from offering worship, and Rule 3(b) included within this class “women at such time during which they are not by custom and usage allowed to enter a place of public worship.”  

Keeping in mind this statutory framework, we are now in a position to understand the issues involved in the Sabarimala Case. The first – and simplest – issue is whether Rule 3(b) is legally valid, given that Section 3 of the Parent Act – i.e. – the primary legislation – mandates that places of public worship must be open to all “sections and classes”. If women constitute a “section” or a “class” of Hindus, then clearly Rule 3(b), being subordinate legislation, is ultra vires the parent statute, and must fall. Consequently, the first question that the Court must answer is whether, for the purpose of temple entry, women constitute a “section” or a “class” of Hindus. To answer this question, the Court must undertake a historical examination of temple entry legislations, the kinds of exclusion that they were trying to combat, and the social movements that necessitated their enactment. While at the core of the temple entry movements was the exclusion of Dalits and other castes, it is also important to note that the root of such exclusion was ideas of ritual pollution and purity; notably, that is exactly the justification being offered for the exclusion of menstruating age women from Sabarimala. Consequently, if temple entry laws were framed for the purpose of making ideas of pollution and purity irrelevant to temple entry, then there is a strong case for including women – as a class – within their protective ambit.

Now, in the event that Section 3(b) is consistent with the parent Act, the larger question of constitutionality arises. The 1965 Act – and the Rules – are pieces of primary and subordinate legislation respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act and the Rules are invoked to justify the exclusion of women from the Sabarimala Temple, therefore, there is a clear violation of Articles 14 and 15(1) of the Constitution.

That, however, does not settle the issue, because the further argument is that the Act and the Rules merely codify the practice of existing religious mandates. These religious mandates, however, are grounded in something beyond merely the 1965 law: they are protected by Article 25(1) of the Constitution, which protects the freedom of religion. Or, in brief: the exclusion of menstruating age women is a religious mandate protected by Article 25(1) of the Constitution.

This raises a few difficult issues. The first issue is this: once the Kerala legislature passed the 1965 Temple Entry Act, then does there remain any independent right of places of public worship to regulate entry? Or, in other words, is the 1965 Act a “complete code” on the issue of temple entry? Readers will recall that a somewhat similar issue was at stake in the recent Triple Talaq judgment. The question there was whether the 1937 Shariat Act codified Muslim personal law, or whether it only recognised it. If it was the former, then if the 1937 Act was struck down as unconstitutional, the practice of triple talaq would go along with it; if the latter, however, then triple talaq was grounded not in a statute (which could be challenged and struck down for being unconstitutional), but was a part of “uncodified personal law”.

Consequently, the Court will have to decide whether, after the 1965 Act, it can be claimed that there exists an independent right under Article 25(1) to prohibit menstruating women from entering Sabarimala. If the Court decides that it cannot, then there is no further issue: insofar as the 1965 Act bans menstruating women from entering Sabarimala, it clearly violates Articles 14 and 15(1) (it may be argued that banning only menstruating women, and not all women, does not constitute sex discrimination; however, on this blog, it has repeatedly been pointed out how such arguments are flawed, and I will not rehearse them here).

However, if the Court holds that the claim can be made, then under existing Indian jurisprudence, it must ask a further question: is the banning of menstruating women an “essential religious practice” under Article 25(1), and is it consonant with the requirements of “public order, morality, and health”, to which Article 25(1) is subject. This will require the Court to go into the doctrines of the religion, and adjudicate whether the practice in question is essential, or merely peripheral.

Lastly, Article 26(b) of the Constitution guarantees to “religious denominations” the right to manage their own affairs in matters of religion. Two questions arise, therefore: do the worshippers at Sabarimala constitute a “religious denomination”? And is the question of temple access a question of “religion”? On the first issue, there exists substantial jurisprudence. My own suspicion is that in view of the fact that Sabarimala is governed by the Travnacore Devaswom Board (a State institution), and a State legislation, the religious denomination argument will not succeed. There is also a clear public element involved here (to an even greater extent than in the Bombay High Court’s Haji Ali Dargah decision).

The last sub-issue – whether temple access is a pure question of “religion” or not – appears straightforward, but is actually rather complex. This is because, historically – right from Ambedkar’s temple entry movements of the 1920s – issues of temple entry have always been framed as issues of civil rights, involving access to public spaces (for an account, see Anupama Rao’s book, Caste Question). Exclusion from temples has been understood to be an embodiment of social hierarchies and deeper social exclusions, and has been opposed in these terms. In fact, temple entry movements were so politically successful, that the Constitution contains a specific exception to the freedom of religion clause (Article 25(2)(b)) that categorically authorises the State to throw open religious institutions to all classes of Hindus. Consequently, a nuanced analysis might have to acknowledge that for historical, political and social reasons, the issue of temple access is no longer restricted to the purely religious domain, but is inextricably linked with civil status and civil rights.

In my view, therefore, the Court would have to answer the following questions in the Sabarimala Case:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

In its referral order, the questions that the Court has framed are as follows:

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

While my own framing is almost exactly the reverse of how the Court has chosen to go about it, readers will note that the ground covered is virtually identical. One thing that is particularly interesting to note is that in Question 1, the Court refers not only to Articles 14 and 15, but to Article 17 as well. Article 17 bans the practice of “untouchability”. In framing the question, therefore, the Court has at least acknowledged the possibility that banning women on grounds of menstruation creates and perpetuates a stigma that is similar in character to the stigma faced by caste-untouchability (during the hearings last year, this argument was advanced by Ms Indira Jaising).

The invocation of Article 17 is crucial for another reason. In the recent Triple Talaq judgment, the dissenting opinion by Justices Khehar and Nazeer, after holding that triple talaq was an “essential practice” under Islam and therefore protected by Article 25(1), went on to hold that the phrase “subject to public order, morality and health and to the other provisions of this Part“, which prefaced the Article 25(1) right, could not make triple talaq subject to Articles 14 and 15(1). This was because these Articles only protected the individual against the State, while Triple Talaq was an issue between two private individuals. Note, however, that Article 17 is horizontally applicable – that is, it prohibits untouchability between private parties. If, therefore, the Court is to find that excluding menstruating women from temple access amounts to “untouchability” within the meaning of Article 17, then even if that exclusion is an “essential religious practice” under Article 25(1), it will fall. This, of course, is assuming that Khehar and Nazeer JJ’s views in Triple Talaq, on this point, were correct; my own view is that they were not.

Consequently, the Court’s framing of the referral questions has set up a host of fascinating constitutional questions. And at its heart, the issue is this: should the question of temple access be left purely to the discretion of religious heads, or is it something that should be governed by constitutional norms of equality and non-discrimination? In my view, given the role played by religion in private and public life in India, given how religious status is often inextricably linked with civil and social status, and given the unique history of temple entry movements in India, constitutional norms should apply, and the exclusion of menstruating women from Sabarimala should be stuck down.

In view of the importance of the issues involved, however, it is to be hoped that the Constitution Bench is set up swiftly, and the case heard and decided finally.

 

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.

Does a tax on sanitary pads violate Article 15(1) of the Constitution?

The last few days have seen a campaign asking for a removal of the tax on sanitary pads (which is 5% in Delhi, and goes up to 14% in certain states). It has been argued that the premise of taxing sanitary pads is that they are luxury items; however, their impact on reproductive health and the overall well-being of women, at home and in the workplace, marks them out as essential items rather than luxury goods.

In this post, I will attempt to advance an alternative, legal argument: I will contend that a tax specifically on sanitary pads is unconstitutional, since it amounts to “discrimination on grounds… of sex“, which is prohibited by Article 15(1).  While the argument itself is simple, the possible objections to it are many and complex; consequently, I shall address them in some detail.

Sanitary Pads and Article 15(1)

Article 15(1) prohibits, inter alia, sex discrimination. Discrimination, both in its common usage, as well as in the understanding of the Supreme Court, broadly means to unequally allocate benefits and burdens among identifiable classes of people.

Sanitary pads, by definition, are used only by women. A tax on sanitary pads therefore amounts to a burden upon women. Or, to put it another way, but for being a (menstruating-age) woman, an individual would not be burdened by the sanitary pad tax. Under the classic definition, therefore, the tax discriminates on “grounds of sex.”

This probably sounds rather counter-intuitive. Perhaps the following analogy might help: would not a specific tax on crucifixes amount to discrimination on grounds of religion? If, intuitively, we think that it would, then there is every reason to hold that a tax on sanitary pads amounts to discrimination on grounds of sex: sanitary pads are, arguably, even more important for women than crucifixes are for Christians. That it does not intuitively appear to be so is probably because of a host of political and historical reasons, which have ensured that religious identity is salient in a way that sexual identity is not.

Let us now consider the objections.

Objection 1: The tax is on items, not on persons

The first, obvious, objection is that the tax in question is not a tax on women, but a tax on sanitary pads. Article 15(1) only prohibits discrimination “on grounds of sex“. It does not prohibit discrimination that will ultimately effect a particular sex only (readers will notice echoes of Koushal vs Naz, which held that Section 377 punished only acts, not people).

It is far too late in the day, however, to advance this argument. It is now firmly established, through more than six decades of constitutional jurisprudence (and indeed, pre-constitutional jurisprudence), that the correct test to be used in determining the constitutionality of a statute is not its object or form, but its effect upon rights. This was the holding of the Constitution Bench of the Supreme Court in Khandige Sham Bhat vs Agricultural Officer, in Prem Chand Garg vs Excise Commissioner, and – specific to Article 15(1) – in  Anuj Garg vs Hotel Association. Consequently, the fact that the tax is not a tax on women makes no difference; the fact that it affects women, and women alone, brings it within the ambit of Article 15(1).

Objection 2: “On grounds only of…“

A second possible objection might point to the text of Article 15(1), which prohibits discrimination on “grounds only of… sex.” Focusing on the word “only“, the argument would then be that the tax does not burden all women, but only menstruating-age women who use sanitary pads. Consequently, it does not amount to discrimination on grounds only of sex, but “sex-plus”, as it were.

In the early years of Indian sex discrimination jurisprudence, various High Courts disagreed precisely on this issue. While some High Courts upheld putatively discriminatory laws on the basis that they took into account sex and other factors not within the ambit of Article 15(1), other High Courts held that Article 15(1) was applicable to discriminatory laws that were based on sex, and other factors “arising out of sex.” For our purposes, however, the controversy was put to rest by the judgment of the Supreme Court in Air India vs Nargesh Mirza, which held that pregnancy-based discrimination was hit by Article 15(1). The case of pregnancy, I would submit, is on all fours with the case of sanitary pads: not all women get pregnant, but only women get pregnant; similarly, not all women menstruate (and thereby need sanitary pads), but only women menstruate.

More broadly, jurisdictions world over are moving away from what the discrimination law scholar Tarunabh Khaitan calls the strict comparator test. In other words, it is no longer necessary to show, in order to make out a claim of discrimination, that a law must burden all members of one defined class, as opposed to the other. Discrimination law is shifting its focus, rather, to the question of whether laws disadvantage members of a class by virtue of their belonging to that class. That, as we have seen, is clearly the case here.

Objection 3: No Comparator

A more subtle form of the objection, however, might be as follows: given that there is simply no equivalent to sanitary pads for men, it makes no sense to say that a tax on sanitary pads discriminates against women; the whole point of discrimination law is that it is comparative. If, therefore, you cannot by definition tax men on the equivalent of sanitary pads, because such an equivalent doesn’t exist, then the act of taxing women might be problematic in other respects, but it is not an act of discrimination.

Readers will note that this argument restates the comparator claim in a more subtle form: the claim is no longer that the comparison must be between all women and all men, but that there must be something to compare to.

There are three responses to this argument. The first is that the logic of Nargesh Mirza covers this situation as well. In Nargesh Mirza, it was held that penalising pregnancy amounted to sex discrimination, notwithstanding the fact that men could not, by definition, get pregnant. Here, the State is penalising the use of sanitary napkins, notwithstanding the fact that men do not, by definition, use sanitary napkins. The analogy with Nargesh Mirza might not be immediately intuitive, perhaps because, on reflex, we think of pregnancy as a condition, and sanitary pads as an item of use. On the comparator logic, however, both are the same.

Secondly, we can restate Khaitan’s point that the focus of discrimination law is shifting from comparison to disadvantage. Discrimination law now sees as its focus the redressal of structural and institutional conditions that have been historically responsible for subordination on the basis of certain personal characteristics, such as race, religion, gender, etc. Placing a monetary premium upon menstruation fits within this particular understanding of discrimination.

Thirdly, let us go back to our hypothetical of a tax on crucifixes: there is no specific equivalent of a crucifix in other religions. Can we then say that a tax on crucifixes does not discriminate against Christians? The answer is no. Now, you might argue that the comparator there is other religious symbols, such as the Muslim skullcap, or the Sikh turban. Fair enough; but let us imagine that there are only two religions, Christianity, and Religion X, which has no “symbols“, but is an entirely abstract religion. Now, would we say that a tax on crucifixes does not discriminate on grounds of religion? I would submit that the answer would remain no, suggesting that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons.

Objection 4: After-shave lotions?

The last objection is a consequential one: there are many products used exclusively by women, and many products used exclusively by men: for instance, aftershave lotion. Holding a tax on sanitary pads unconstitutional would mean that none of those products could be taxed. This is an absurd consequence, and any interpretation that supports this consequence must be rejected.

While I am somewhat tempted to bite the bullet and say yes, a tax on aftershave lotion would be unconstitutional on grounds of Article 15(1), I think that there is a crucial distinction between sanitary pads and aftershave lotion, and that it is a distinction that is relevant to discrimination law. This distinction requires us to stress once more that the point of discrimination law is not to capture every instance of dissimilar treatment on the “grounds” set out under Article 15(1), but to remedy disadvantage. It is here that the arguments made by the political campaign – referred to at the beginning of the post – become relevant, because it has been shown that the use of sanitary pads is crucial to women’s reproductive health, as well as their participation in the workforce on equal terms with men. Placing a monetary premium on sanitary pads, therefore, is discriminatory because it disadvantages women, on grounds of their sex, in a non-trivial way. I am not sure if a similar case can be made for aftershave lotion.

Conclusion

Let me sum up my argument. A tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution. The fact that it does not affect all women (only menstruating women) makes no difference from the perspective of Article 15(1). The fact that it does not, by definition, affect men at all, also makes no difference from the perspective of Article 15(1). And finally, Article 15(1) is attracted because discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex. This makes the initial, presumptive applicability of Article 15(1) absolute.

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*I am grateful to Suhrith Parthasarathy and Jawahar Raja for helping me think through some of the issues in this piece.

The Bombay High Court’s S. 56 CPC Judgment and the State of Indian Sex Discrimination Jurisprudence

In a brief judgment delivered in late October, a division bench of the Bombay High Court rejected a constitutional challenge to Section 56 of the Code of Civil Procedure. Section 56 of the Code states:

“Notwithstanding anything in this part, the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.”

The challenge was on the basis of Articles 14 (equal protection of laws) and 15 (non-discrimination on grounds of, inter alia, sex) of the Constitution. On the Article 14 question, the Court held:

“Taking into consideration the object of such provision, the classification between men and women is quite reasonable, and the classification has sufficient nexus with the object.” (paragraph 5)

However, the Court at no point actually spelt out what the object of the provision was. Consequently, assessing the validity of this argument is somewhat difficult. More importantly, the Court then went on to hold:

“That apart, whilst Article 15(1) of the Constitution of India provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them, Article 15(3), in terms provides that nothing in Article 15 shall prevent the State from making any special provision for women and children. According to us, Section 56 of the CPC, which makes special provision for women, is clearly a provision relatable to Article 15(3) of the Constitution of India, and therefore, there is no reason to declare the same as unconstitutional.”

I have argued before that the invocation of Article 15(3) as a carte blanche to uphold laws that impose differential benefits and burdens upon men and women, ostensibly to the advantage of women, is unjustified. Article 15(3) is not a stand-alone constitutional provision, but nestled within the Articles 14-15-16 equality scheme. The use of the phrase “nothing in this Article“, as a precursor to Article 15(3) suggests that where a legislative classification might otherwise have fallen foul of the non-discrimination guarantee of Article 15(1), Article 15(3) would save it. However, given that Article 15(3) is itself a part of Article 15 suggests that the goal of such classification must also fit within the concept of equality. For instance, reservations or quotas for women in Parliament, which serve to correct a historical wrong, caused by the structural inequality between the sexes for many generations, can be justified by recourse to Article 15(3) because the differential benefits/burdens are aimed at mitigating the effects of a concrete, historical and institutional inequality.

Consequently, laws making “special provisions” for women (and children) ought to be judicially reviewed for whether or not they bear some connection with remedying the historical and structural subordination of women. With the partial exception of Anuj Garg vs Hotel Association, however, this form of reasoning has been entirely absent from Indian sex discrimination jurisprudence.

The Bombay High Court, in fact, relied upon the 1954 Supreme Court judgment that is the origin of the carte blanche approach to Article 15(3): Yusuf Abdul Aziz vs State of Bombay. In that case, the Supreme Court rejected a constitutional challenge to the adultery provision in the IPC, which is asymmetrical in that women cannot be prosecution for adultery. The Court upheld the law by a simple invocation of Article 15(3), ignoring the fact that the basis of the adultery provision was precisely the kind of stereotypical gender-based assumptions that the Constitution intended to do away with: i.e., that women are passive partners, lacking in sexual autonomy. This inattention to how Article 15(3) ought not end up becoming a shield to perpetuate sexual and gender-role based stereotypes has plagued the Court’s jurisprudence ever since.

An fascinating example of the rich and nuanced arguments that arise in cases of this kind is exemplified by the judgment of the South African Constitutional Court in President vs Hugo. In that case, Nelson Mandela granted a Presidential pardon to “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years.” This was challenged on the basis that the refusal to extend a like pardon to fathers with minor children under the age of twelve years was sex-discriminatory, and based upon stereotypical assumptions that it was women’s primary responsibility to bring up children. By a majority, the Constitutional Court rejected the challenge. What is of particular interest is the debate between O’Regan J (concurring) and Kriegler J (dissenting). Both judges agreed that the affirmative action provisions of the South African Constitution could be invoked only where the ostensibly discriminatory legislation or executive act bore some connection with remedying a historical or current structural inequality; where they disagreed was the extent of fit that was required between the challenged provision or act, and the remedial goal. While O’Regan J. would grant the State a degree of leeway, Kriegler J. insisted on a tighter fit, and was suspicious of legislation or executive actions that relied upon stereotypes in order to achieve substantive equality.

The Bombay High Court’s judgment, unfortunately, represents a missed opportunity to break free of the carte blanche approach to Article 15(3), and to take steps towards a principled, equality-based interpretation of that provision.