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.

The Delhi High Court on Pregnancy and Sex Discrimination

Recently, my attention was drawn to a fascinating judgment of a division bench of the Delhi High Court, delivered last month. Inspector (Mahila) Ravina vs Union of India concerned a challenge to the CRPF’s denial of promotion to a female inspector. The facts are somewhat complex. For our purposes, it is sufficient to note that the Petitioner, an inspector in the CRPF, was unable to attend a Pre-Promotional Course, conducted between July and August 2011, because she was pregnant. Consequently, after her pregnancy was over, she attended the next Course, conducted in July and August 2012, and qualified, thus fulfilling the requirements for promotion to the next-higher post. However, when the CRPF released its promotion list in 2014, the Petitioner’s name was not included, and consequently, she lost her seniority vis-a-vis her batchmates and juniors. When the Petitioner filed a representation before the CRPF, she was informed that she had lost her seniority because of her “unwillingness to attend the promotional course [held in 2011].” The Petitioner challenged this decision before the High Court.

The question before the High Court, therefore, was whether “the Petitioner’s pregnancy would amount to unwillingness or signify her inability to attend a required promotional course and if she is entitled to a relaxation of rules to claim seniority at par with her batchmates.” The Court upheld the Petitioner’s claim on two grounds, both of which merit close attention.

First, the Court held penalising the Petitioner for her pregnancy violated Article 21 of the Constitution. In paragraph 9, Justice Ravindra Bhat observed:

“To conclude that pregnancy amounts to mere unwillingness – as the respondents did in this case- was an indefensible. The choice to bear a child is not only a deeply personal one for a family but is also a physically taxing time for the mother. This right to reproduction and child rearing is an essential facet of Article 21 of the Constitution; it is underscored by the commitment of the Constitution framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times. This commitment is signified by Article 42 (“Provision for just and humane conditions of work and maternity relief- The State shall provide conditions for securing just and humane conditions of work and for maternity relief”) and Article 45 (“Provision for early childhood care and education to children below the age of six years- The State shall endeavour to provide for early childhood care… ”)…”

There are two important points that need to be noted here. The first is that under the Court’s interpretation of Article 21, personal liberty is violated not only through coercive State action, but also State action that puts persons in a position where they must choose between availing a State benefit, or exercising a constitutional right. In other words, if “unwillingness” is to be construed as including absence due to pregnancy, then a woman is put in a position where she has to either forego her promotion, or forego her pregnancy. The State is therefore penalising women who exercise their constitutional rights by withholding the benefit of promotion from them. Readers will note the similarity between the argument here, and the doctrine of unconstitutional conditions discussed in the last post. The petitioner’s position here was even stronger, however, because denial of promotion is a more tangible and direct harm than withdrawal of a tax exemption.

The second is the Court’s use of the Directive Principles of State Policy – in particular, Articles 42 and 45. As I have attempted to argue before, a conceptually sound approach towards the DPSPs must respect the fact that the framers chose to make them unenforceable, while finding a textually and structurally relevant role for them in constitutional interpretation. There are two possible ways of doing this. One is that where a legal provision may be reasonably interpreted in two different ways, the interpretation that furthers the Directive Principles ought to be given precedence. The second is that the Directive Principles may be used to provide concrete content to the abstract concepts contained in Part III of the Constitution. In paragraph 9, the Delhi High Court does both. Referring to Articles 42 and 45, it holds that the guarantee under Article 21 is not merely a negative prohibition against coercive State action, but also casts a positive obligation upon the State “to ensure that circumstances conducive to the exercise of this [Article 21] choice are created and maintained by the State at all times.” In the instant case, this concretely translates into prohibiting the State from indirectly penalising a person if they choose to exercise their constitutionally guaranteed right to personal liberty. The Court also uses the DPSPs interpretively, by preferring an interpretation of the word “unwilling” that excludes pregnancy rather than one that includes it.

In its Article 21 analysis under paragraph 9, the Court stresses that pregnancy is a “deeply personal” choice. This is an ideal segue into the second part of the Court’s analysis. In paragraph 12, the Justice Bhat holds:

“It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees- i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory. Unlike plain unwillingness – on the part of an officer to undertake the course, which can possibly entail loss of seniority – the choice exercised by a female employee to become a parent stands on an entirely different footing. If the latter is treated as expressing unwillingness, CRPF would clearly violate Article 21. As between a male official and female official, there is no distinction, in regard to promotional avenues; none was asserted. In fact, there is a common pre-promotional programme which both have to undergo; both belong to a common cadre. In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.“

There are some crucial points here that need to be unpacked. The first is the express acknowledgment of pregnancy-based discrimination as a form of sex discrimination, which brings it within the non-discrimination guarantees under Articles 15 and 16 of the Constitution. As we discussed recently on this blog, the Supreme Court in Nargesh Mirza’s case (1981), dealt a serious blow to Indian sex discrimination jurisprudence by failing to consider pregnancy on the touchstones of Articles 15 and 16, and instead considering it under the “arbitrariness” prong of Article 14. Bizarrely, in Nargesh Mirza, the Supreme Court held that termination on a first pregnancy would be unconstitutional because arbitrary, but termination on a third pregnancy wouldn’t be (since it helped the nation’s family planning program and helped women become good mothers!). The discontents of the arbitrariness approach under Article 14 are legion, and I do not need to recount them here. The Court’s analysis of pregnancy discrimination under Article 16 represents a significant advance.

What is even more important, however, is how the Court does it. Justice Bhat observes that “a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.” This is the language of indirect discrimination: facially “neutral” provisions have a discriminatory impact because they end up reproducing existing social inequalities and hierarchies. As we have seen in our discussion of the evolution of Indian sex discrimination jurisprudence, indirect discrimination still has only a tenuous hold upon the imaginations of our judges. A large number of cases have chosen to interpret the word “grounds” in Articles 15 and 16 as referring to the reasons, or motives, behind a law, and have consequently refused to find discrimination even when there is a clear case of differential impact. In my analysis of the text of Articles 15 and 16, I advanced an alternative reading of the word “grounds”, one that referred not to the motive of the law, but to the characteristics that were protected from adverse impact (sex, race, caste etc.). An effect or impact-based test was accepted by the Supreme Court in Anuj Garg. However, even in Anuj Garg, the law itself was directly discriminatory: it prohibited women from working as bartenders. The Delhi High Court, however, applies the framework of indirect discrimination to a facially neutral law, which discriminated not on the basis of sex, but on the basis of pregnancy. In this, it follows an analytical tradition, the finest exemplar of which is the Andhra Pradesh High Court’s judgment in 1983, which struck down the restitution of conjugal rights provision under the Hindu Marriage Act as discriminatory, because of its strongly adverse impact upon women.*

It is also fascinating to note that Justice Bhat places the word “normal” within quotation marks. In the first part of the paragraph, he notes that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct. In other words, the “normal” is constructed form the perspective of a privileged subject position. Previously on this blog, I have cited the work of Joan Williams, who makes the point in the context of workplace discrimination:

“... society is structured so that everyone one, regardless of sex, is limited to two unacceptable choices – men’s traditional life patterns or economic marginality. Under the current structure of wage labor, people are limited to being ideal workers, which leaves them with inadequate time to devote to parenting, and being primary parents condemned to relative poverty (if they are single parents) or economic vulnerability (if they are currently married to an ideal worker). Wage labor does not have to be structured in this way… [the recent] massive shift in the gendered distribution of wage labor has produced intense pressures to challenge the assumption that the ideal worker has no child care responsibilities. But this pressure is being evaded by a cultural decision to resolve the conflicts between home and work where they have always been resolved: on the backs of women. In the nineteenth century, married women “chose” total economic dependence in order to fulfill family responsibilities.’ Today, many women with children continue to make choices that marginalize them economically in order to fulfill those same responsibilities, through part-time work, “sequencing,” the “mommy track” or “women’s work.” In each case, the career patterns that accommodate women’s child-care responsibilities often are ones that hurt women’s earning potential.”

The “normal” worker, therefore, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective. It is this edifice of exclusion that the Delhi High Court’s judgment interrogates, and then finds to be inconsistent with the Constitution.

By de-mythologising “normalcy”, the Delhi High Court has made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice. In his dissenting opinion in Volks vs Robinson, Justice Albie Sachs of the South African Constitutional Court observed that “the purpose of constitutional law is to convert misfortune to be endured into injustice to be remedied.” The Constitution guarantees not only formal equality, but also promises that entrenched power structures which, over decades, even centuries of sedimentation, have attained the status of facts of nature, will no longer be treated as immutable in the very existence of things, but as human-caused instances of injustice, and will be dismantled. In a very profound sense, this judgment implements Justice Sachs’ vision of the transformative Constitution.

—

(*NB: The case before the Delhi High Court was an easier one than the one before the AP High Court, because while only women can get pregnant, both men and women can invoke the restitution of conjugal rights provision. The AP High Court rested its decision upon the unequal power relations within the family, which would mean that restitution of conjugal rights would adversely impact wives to an enormous degree, while having very little impact upon the lives of husbands. That judgment was reversed in one year by the Supreme Court. Perhaps it was too far ahead of its time. One hopes that thirty years later, as indirect discrimination continues to struggle for a foothold within Indian discrimination jurisprudence, the Delhi High Court has not also committed the error of being far ahead of its time.)

Female Intestate Succession under Hindu Law: Analyzing its Constitutionality

(This is a guest post by Ayushi Singhal)

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

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

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

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

(c) thirdly, upon the mother and father;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: Women and the Constituent Assembly – II: The Framing of the Non-Discrimination Clause

Initial Drafts

The initial drafts of the equality and non-discrimination provisions were prepared by B.R.Ambedkar (B Shiva Rao Ed. “The framing of India’s Constitution- Select Documents’ Universal law publishing co. Pvt. Ltd Vol II (2004) PP 86-88) and K.M.Munshi (Vol II PP 74-75). Ambedkar’s draft referred to the ‘prohibition of disqualification inter alia on the ground of sex’ only once in respect of holding of public office or practicing of trade or calling (Vol II 84-88). The remainder of the draft provisions were gender neutral using either the words and phrases “all persons, person, public, or people (Vol II 84-88), or “all citizens or every citizen” Moreover, he did not recommend any special provisions for women or children.

However, in comparison to B.R. Ambedkar, K.M. Munshi’s draft attached more significance to gender (Vol II 74-75) in two respects;

• Calling for treatment of women at equal basis with men generally and;
• Providing justification for exceptions to the rule against sexual discrimination.

He was also less gender neutral in his approach than Ambedkar and used the words ‘women and men’ (rather than citizens). Clauses 1 and 3 of his draft are worth noting.

• All persons irrespective of…….. sex are equal before the law and are entitled to the same rights and are subject to the same duties.
• Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the civil rights and subject to same civil duties unless where exception is made in such rights or duties by the law of the Union on account of ‘sex’(Vol II 74)

Ironically, he did not advocate prohibition of ‘discrimination on the ground of sex’ in respect of equal access to public places and enjoyment of equal opportunities in spheres of public employment and office of power and honour, the exercise of trade, profession or calling and exercise of franchise (Vol II 74-75). Thus, unlike Ambedkar who espoused formal equality, the draft of Munshi was a combination of paternalism and formal equality and was influenced by cultural feminism.

Based on both drafts, the sub-committee on fundamental rights produced a non-discrimination provision: draft Article 5. This Article apart from recognizing the principles of equality before law and the equal protection of the law also prohibited discrimination on the ground of sex (but not gender). The obligation of non-discrimination was not only vertical but also horizontal, bringing into its scope ‘wells, tanks, roads, schools and places of public resort’ (Vol II P 138). Constitutional adviser B. N. Rau expressed concern that,

“…. The clause as drafted would prejudicially affect the institution of separate schools, hospitals etc for women” (Vol II P 148)

The Minorities Sub-Committee, endorsing the suggestion of Rau, decided to remove ‘sex’ as one of the prohibited grounds of discrimination, so far as ‘the use of wells, tanks, roads and places of public resort’ was concerned and also excluded ‘schools’ from this clause. (Vol II P 208)

The above views of both these committees were discussed by Advisory Committee. Although there was consensus in the committee to have a strong Anti-discrimination provision, it was also felt that,

“..the drafting of a clause which would prevent discrimination and at the time would serve the practical social ends was somewhat complicated.” (Vol II P 208, P 221, 253-255)

According to the Committee the same was crucial in respect of discrimination on the ground of ‘sex’. In order, therefore to redraft the Anti-discrimination clause, yet another sub-committee consisting of Munshi, Rajgopalachari, Pannikar and Ambedkar was constituted. (Vol II P 223)

This sub-committee drafted the general nondiscrimination provision, which read:

‘The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex...’ (Vol II P 256).

However, in regard to access to trading establishments, public restaurants and hotels and use of wells, tanks and places of public resort, it omitted ‘sex’ as one of prohibited grounds of discrimination. During the debates, Rajkumari Amrit Kaur objected, arguing that this went against the basic principles of social equality. Rajgopalachari tried to defend it by pointing out,

“…in dealing with particularities, separate provision for women would be necessary and if we say that there shall be no discrimination, we will have to follow it.” (Vol II P 257)

Another member Panikkar added a new dimension to the debate by pointing out,

“..discrimination for women means discrimination against men…when you say no discrimination shall be made on the ground of sex, it also means it should not be discriminated against men...” (Vol II P 257)

However, the debate ultimately resulted in adoption of redraft of the clause suggested by Rajgopalachari, which apart from accepting the objection of Rajkumari Amrit Kaur, also had a proviso, ‘provided that nothing contained in this clause shall prevent separate provisions being made for women.’ (Vol II P 258). Draft Article 11 was then debated by Constituent Assembly on 29^th April 1947 but the discussion did not result in any material changes in the provisions dealing with discrimination on the ground of Sex. (B Shiva Rao Vol V P186-187)

The Final Wording and the Debates over the Word “Only”

This clause however was qualitatively modified along the lines of Section 87 of Charter Act, 1833 which became Section 298(1) of Govt. Of India Act 1935 by Constitutional Adviser and remained part of both the Draft Constitutions. When the I visited HANSARD to gather the legislative intention of British Parliament behind enactment of section 87 and 298, I did not find any discussion on the same. (B Shiva Rao Vol III (2004) P 7-8, P 521)

To have an idea of the changes made by Constitutional Adviser B.N. Rau, it is necessary to compare the language of the clause 11 (1) and clause 9(1) in the draft Constitutions with the earlier clause 4 of draft of subcommittee. He substituted the following clause as clause 1 of draft Article 11. The changes made are italicized. ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them.’ 

It is also interesting to note that, B. Pattabhi Sitaramayya, Durgabai, Mahavir Tyagi,Thakurdas Bhargava. B.V. Keskar, T.T. Krishnamachari, M. Anathasayanam Ayyangar and k. Santhanam raised objections about the inclusion of the word ‘only’ and recommended its deletion wherever it occurred viz. draft article 9 and 10 etc (presently Articles 15 and 16 of Constitution of India). However, the same was rejected by B.N. Rau, by giving following justification,

“[There is an argument that] there are advantages in retaining this wording. For example, suppose because of discrimination against Indians in South Africa, India decides to discriminate against South African Europeans in India. Such discrimination would be on grounds of race, but not on grounds only of race: the Constitution as it stands, would permit it, but not if it is amended as proposed”… In my opinion, It is not clear how this example would explain the insertion of the word ‘only’ in draft clause 10 (presently Article 16 of constitution of India) dealing with non-discrimination in the public employment. Rau also did not offer any justification or articulated his thought on the insertion of the words ‘only’ ‘or any of them’ in his book. (B. Shiva Rao Vol IV (2004) PP 27)

During the final debate on this Article on 29^th November 1948, the above amendment of B. Pattabhi Sitaramayya and others was not taken up. (P 673) But on same day, during the final discussion of draft article 10 ( present article 16 of constitution of India), Naziruuddin Ahmad moved amendment no 333, by observing “That in clause (2) of article 10, for the words ‘on grounds only’ the words, ‘on grounds’ be substituted. It is really a motion for deletion of the word ‘only’ which seems to be redundant or rather causing some difficulty. The same difficulty has been felt by a large number of honorable members, as is evidenced by several amendments to the same effect”.

The other similar amendments were amendment no. 335 and first part of 337. It is also necessary to point out another amendment no. 336 moved by Naziruddin Ahmad, also doing away with the word “only”: “thus for clause (2) of article 10, the following clause be substituted, ‘(2) every citizen shall be eligible for office under the state irrespective of his religion, caste, sex, descent or place of birth’.. the only reason for suggesting this amendment is that it is more direct in form” Amendment 341 was similar to the amendment 336 and was not moved.

During his reply to the discussion ,B.R. Amebdkar pointed out, “Mr. Vice President… that I cannot accept amendment 334 by Misra nor I can accept the two amendments moved by Mr Nazruddin Ahemad , nos. 336 and 337…”

I submit that the observations of B.R. Ambedkar in respect of the amendments moved by Nazruddin Ahmad sidestepped the real issue as to what in substance were the objections raised by the members.

Anti-discrimination vs Non-discrimination

Furthermore, an amendment suggested by Jaypraksh Narayan to add a sub-clause to clause 1 of Article 9, so as to afford protection against discrimination on the ground of ‘sex’ for interalia ‘possession of property, exercising or carrying of any occupation etc’ was also rejected by pointing out interalia,

“ … Under Hindu Law there are certain disabilities with regard to the possession of property on the ground of ‘sex’….it may for example be necessary to impose restrictions on the carrying out of certain occupations by women such as the occupation of rickshaw-puller, the occupation of laborer in mines etc….the amendment if accepted, will not enable the State to impose any such restrictions…..” (Vol IV (2004) PP 29-30)

On the basis of this, I submit that B.N. Rau introduced a subtle distinction between ‘Anti-discrimination and non-discrimination’ because although as a part of strategy of Anti-discrimination, he retained all the prohibited grounds as suggested by Rajgopalachari Committee, but he seriously watered down the scope of Non-discrimination. Thus, he envisaged the possibility of legitimizing the discrimination even on prohibited grounds, if State could suggest some other non-prohibited grounds as compelling justification for the discrimination and could prove that it is not a discrimination ‘only’ on one of the prohibited grounds. Of course in one way the draft of B.N. Rau was quite ahead of time. By incorporating the words ‘or any of them’ he not only recognized the phenomenon of Multiple discrimination but also created a potential for invocation of ‘Principle of Intersectionality’. There is neither discussion in the constituent assembly about the significance of these words, nor has the judiciary has taken their due cognizance during the interpretation of articles 15 and 16. Indeed, it is ironical that at one hand, B. N. Rau contracted the scope of Non-discrimination, while on the other hand, like a visionary, he also opened up the possibilities of placing innovative and creative interpretation on Articles 15 and 16. Similarly, he also severed the Proviso as suggested by Rajgoplachari from draft clause and incorporated a separate clause by making some qualitative and material changes, which was adopted finally as present Article 15 (3). The clause reads as, ‘Nothing in this Article shall prevent the State from making any special provision for women and children.’

Prior to the introduction of the final draft of the Constitution before the Constituent Assembly on 4^th Nov 1948, one of the members, Tajamul Husain had sought the complete deletion of clause 2 of Article 11 (Present Article 15 (3). However, his suggestion was not accepted by Constitutional adviser B.N. Rau, who opined,

“ ..this clause is necessary as obviously special provision would be required in the case of employment of women and children in factories and mines…” (Vol IV (2004) PP 29)

On the other hand, during the final debate, K.T. Shah had moved an amendment to this clause to also include in its scope ‘scheduled castes and backward tribes ‘along with women and children. However, B.R. Ambedkar rejected this amendment by drawing a distinction between SC/STs and women:

“… with regard to amendment no.323 moved by Professor K.T. Shah ,the object which is to add ‘the scheduled castes and scheduled tribes’ along with women and children, I am afraid it may have just the opposite effect. The object which all of us have in mind is that the scheduled caste and scheduled tribes should not be segregated from the general public. for instance none of us, I think would like that separate schools should be established for Scheduled Caste , when there is a general school in a village open to the children of the entire community…if these words are added, it will probably give a handle for a State to say, well , we are making special provisions for the scheduled caste. To my mind they can safely say so by taking shelter under the Article if it is amended in the manner …..”

Subhash Kashyap points out that according to Constitutional adviser B.N. Rau, this clause [Present Article 15(3)] was an exception to the general anti-discrimination clause (Dr. Subhash Kashyap Ed. Vol V P 187). He also demonstrates how B.N. Rau found support for insertion of clause 2 of Draft Article 9 ( Present Article 15 (3) of Constitution of India) , during his discussion with Justice Frankfurter of US Supreme Court by noting ,“ ..Justice Frankfurter emphasized that legal provision might occasionally have to be made for women e.g. to prohibit employment for a certain period before and after child-birth ”. (Dr. Subhash Kashyap Ed. Vol V P 187)

 

 

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

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

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

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

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

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

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

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

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

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

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

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