The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

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 Sabarimala Judgment – I: An Overview

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(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?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) 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? Does not arise.  

(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? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(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)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.

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: Women and the Constituent Assembly – I

(Dovetailing with the previous discussion of sex discrimination on this blog, the following three-part guest post series by Professor Sanjay Jain focusses on the discussions surrounding women and the Constitution, during the Constituent Assembly Debates)

Representation of Women in the Constituent Assembly

Representation of women was low in the Constituent Assembly. One of the women members, Purnima Banerjee, tried to raise the issue of vacancies created by the exit of three prominent women members in the Constituent Assembly. She was of the opinion that the vacancies should be filled by women to ensure a more egalitarian perspective in the constitution-making process. However, the Assembly did not support her. In this connection, the observations made by H.V. Kamath are of particular importance because they show the extra ordinary political indifference to gender representation in the constitution making process and also reinforce stereotypes about women. He observed,

“…, if I heard her right, she said that women should be given a greater chance more scope, in affairs of administration and government than they are being given today. The most common and the strongest objection so far put forward by political philosophers in this….regards the capability of women for government and administration is that woman is ruled more by the heart than by the head, and where the affairs of Government are concerned, where we have to be cold and calculating in dealing with various kinds of men, women would find it rather awkward and difficult to deal with such persons and ….If the heart were to rule and the head to take a secondary place then it is felt by many thinking men, and thinking women too, that the affairs of government might go somewhat awry, might not fare..”

He further observed however,

“….I think the House will not quarrel with Shrimati Purnima Banerji on this point that where a seat held by a woman Member is vacated that seat should normally go to another woman.”

B.R. Ambedkar responded to Purnima Banerjee’s request by claiming,

“…….I do not think it is necessary to make a specific provision for the retention of women in this Constituent Assembly. ..the President in the exercise of his powers of rule-making will bear this fact in mind and see that certain number of women members of the Constituent Assembly or of the various parties will be brought in as members of the Provisional Parliament.” (dated 11th Oct. 1949)

Being inclined towards a perfectionist State, the focus of the framers of the Indian constitution was more on the ‘rights discourse’ rather than on the ‘principle of equality.’ They proposed to incorporate the ‘right to life and personal liberty, the right to equality, the right to property, and the right to nondiscrimination’ in a single provision (B Shiv Rao “The framing of India’s Constitution’, Vol II, P 173 ). The Article was extensively deliberated from 16th April 1947 to 30th April 1947 and underwent several changes. Particularly, the difference of opinion between K.M. Munshi and Allidi Krishnaswami Ayyar is worth noting. The latter insisted for the deletion of the principle of ‘equality before the law’ by observing “so long as it is merely a maxim or principle of the common law there is a certain flexibility attaching to it and it can be adopted by the courts and legislatures to changing circumstances but when the same is made a constitutional guarantee it is beset with difficulties. Every law which violates this principle becomes invalid and will become subject to the crucible of judicial review. The statute law of the country may have necessarily made (sic) a difference between infants and adults (vide Juvenile offenders Act), between men and women (vide factory and labour legislations)”.( B Shiva Rao “ Framing of India’s Constitution” Vol II P 212.) The Subcommittee on fundamental rights accepted this view and transferred the principle to the section of non-justiciable rights (B Shiv Rao “ The framing of India’s Constitution’ , Vol II, P 175) from the draft clause 12. However, when the article came for consideration before the Constituent Assembly on 30th April 1947, without any discussion on this issue, the principle was reintroduced as a part of justiciable rights. Even at this stage, Article 14 was not in its final form and was later separated from present Article 21. It is also interesting to note that there was little discussion on the adoption of the principle of ‘equality before the law’ and the ‘equal protection of the law’ in Constituent Assembly debates at the time of finalization of Article 14.( dated 2nd December 1948, accessed 16th august 2012).

Protectionism

Such attitudes – i.e., based upon portraying women as victims and in need of protection, can be seen to be carried over in the gender specific terminology that was advocated at certain places. For example Lakshminarayan Sahu, [supported by H.V. Kamath] suggested amendments in draft Article 31(v) (Presently Article 39(e). Article 39(e) now reads:

“… that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.”

Sahu recommended that:

“…., for the words ‘their age’ the words ‘their age, sex’ be substituted………Mr. Kamath admitted here that even he considers that the word ‘Sex’ should be put in but that he did not do so because the term ‘Sex’ was not liked by some lady members of this House. But I insist that this word should be retained here. I would like to know the reasons which led them to say that they did not like this word. We see that the word ‘Sex’ has already been used in article 9 of the Fundamental Rights….. Secondly, if we do not use the word ‘Sex’ here, many unpleasant complications are likely to ensure…. There are many such factories and mines which are not fit for women to work in. But many women are compelled by circumstances to work there. To stop this practice the word “Sex” should be specifically used here. ….third…The condition of the women of our country is rather deplorable and I do not like that they should work day and night in the mines and be obliged to adopt some such profession which may spoil their home life” (CAD Volume VII PP 512, 22nd Nov.1948.)

Kapoor and Cossman note that in this approach, women are construed as weak and subordinate and are pursued to be in need of protection. Such differential treatment in some circumstances is said to be preferential treatment. This approach unduly essentialises the sexual difference.

The Uniform Civil Code

During the protracted debate on draft Article 35 (Presently Article 44) dealing with the Uniform Civil Code, there was only one intervention by K. M. Munshi pertaining to inequality faced by women in different religious personal laws. He observed,

“…..Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India….

Trafficking etc.

There was a lack of interest and even opposition by women members themselves for constitutionalization of prohibitions on specifically gendered harms such as the Devdasi system and dowry violence, and prostitution. In this regard, the discussion pertaining to the amendment moved by K.T. Shah to draft Article 17 (Presently Article 23) on trafficking in human beings is worth noting. He observed,

“That in clause (1) of article 17, for the words `Traffic in human beings and begar’, the words `Traffic in human beings or their dedication in the name of religion to be Devadasis or be subject to other forms of enslavement and degradation and begar’ be substituted.”

However, one of the women members expressed her reluctance for having such amendment on the ground that the practice of Devdasi system had been made illegal in the State of Madras. Similarly, T. T. Krishnamachari launched a scathing attack on Shah’s suggestion by observing,

Sir, I am here primarily to oppose the amendment moved by my honorable Friend, Prof. K. T. Shah, in that it imports into the consideration of this article facts which ought not to be taken into account in a consideration of the fundamental rights that are to be incorporated in the Constitution…. If those abuses are such where vested interests are likely to seek perpetuation of those abuses, well, I think we have to provide against them, but if public opinion is sufficiently mobilized against those abuses, I do not think we ought to put a blot on the fair name of India, possibly, by enacting in our constitution a ban on such abuses. …Looking as I do at such matters in that light, I wish most of my honorable Friends in this House will not try to import into these fundamental rights age-old peculiarities of ours that still persist, bad as they are in particular parts of society which can be made to disappear by suitable legislation in due course, perhaps in two, three or four years.

B.R. Ambedkar also adopted the views of Durgabai and Krishmanchari.

On the other hand, Das was more candid and realistic arguing,

“…However, I think we will not be justifying our constitution on fundamental rights if we do not accept and admit our great sins by including the words “traffic in women” and try to save the situation now and hereafter”.

Another female member, Renuka Ray however supported K.T. Shah by observing,

Sir, if we do not accept the amendment of Mr. B. Das, it is not because we do not appreciate his purpose. …but I do think that the article as it stands does cover it…… As for the amendment that my honourable Friend, Mr. K.T. Shah, moved, I agree with Shrimati Durgabai that legislation has covered this problem in regard to Madras, but I think that if Mr. Shah’s amendment could be accepted by this House so that the Devadasi system–the dedication of women in temples–is abolished by a categorical provision in the Constitution, it would be better procedure as the custom still lingers in some areas….(dated 3rd December 1948).”

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

And again:

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

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

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

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

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

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

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

 

Sex Discrimination and the Constitution – VIII: The further discontents of Air India Cabin Crew vs Yeshaswinee Merchant

Air India vs Nargesh Mirza was only the first salvo in a legal battle that was to last thirty more years. After losing in the Supreme Court, the air hostesses took their battle to the political arena: in 1989, they petitioned the Lok Sabha against the discrimination in retirement ages and other service conditions. In response to the recommendations of the Petition Committee, the Central Government issued a direction to the Air india, requiring them to allow both male and female cabin crew to serve until the age of 58. After some resistance from Air India, the government clarified that while the retirement age for both men and women was now 58, air hostesses could be given “suitable alternate jobs on the ground” after they had crossed the age of 35. Accordingly, in 1990, Air India issued a circular stating that air hostesses who had attained the age of 45 would be given ground employment. In 1993, this was extended to 50, subject to tests for medical fitness for flying duties.

Soon afterwards, through legislation, Air India and Indian Airlines became two separate entities. Air India (now a new company) entered into an agreement with the Air India Cabin Crew Association in March 1995. According to this agreement, there would be complete interchangeability of functions between male and female cabin crew members for new entrants to the service; however, for all recruits who had joined before 1997, the old policies would apply. This agreement was enshrined in a formal settlement in June 1997, where it was also clarified that all previous settlements and agreements, entered into between Air India in is previous avatar and its employees, would continue to hold where applicable.

In accordance with the new settlement, a revised promotion policy for cabin crew was brought into force the same month. At this point, fifty-three Air Hostesses, most of whom were nearing the age of 50, formed an Association (Air India Air Hostesses Association), and filed a petition before the National Industrial Tribunal, asking for a merger of the cadres, including for recruits who had joined before 1997. Interestingly, this claim was resisted by other Air Hostesses (a majority, in fact), who stated that they wished to retain their right to early retirement (and, consequently, accelerated seniority), and therefore, to continue to be treated as a separate cadre. The Tribunal rejected the petition for merger. Accordingly, a writ petition was filed in the Bombay High Court.

Before the High Court, the Air India Cabin Crew Association asked to be impleaded as a party, but the High Court only allowed them to file an intervention application (this fact is important, because it seemed to weigh significantly with the Supreme Court; we shall return to it later in this essay). It was argued by Air India and the AICCA (as intervenor), that the interchangeability of jobs between male and female cabin crew was applicable only after 1997; it was a policy decision, and did not imply the pre-existing position was discriminatory. The High Court, however, was not convinced; after some prodding from Justice Shah, Air India submitted a proposal for the merging of cadres. According to the proposal, the male and female cadres would be merged, and service conditions would be equalised. A corollary of this was that female air hostesses would lose the accelerated promotions and higher allowances that they were entitled to by virtue of their early retirement.

The Air India Cabin Crew Association approached the Supreme Court. It claimed to be the only recognised union entitled to represent the cabin crew (with 684 air hostesses out of a total of 1138 being a part of it), and argued that the 53 air hostesses who had claimed parity (and were working in executive posts) were “unmindful of the interest[s] of the larger number of air hostesses who are of the workmen category and have agreed for an early retirement age.”

The Supreme Court handed down its judgment in 2003, in a case called Air India Cabin Crew Association vs Yashaswinee Merchant, agreeing with the claims of the Association. It began by noting that the correct test for determining whether there was discrimination “on grounds” of sex was the “but-for” test: i.e., the question that needed to be asked was whether, but for his/her sex, an individual had been disadvantaged. Notice that the but-for test makes no mention of the discriminator’s reason – but in the very same paragraph, the Court undid its own analysis by stating that “women [cannot] be deliberately selected for less favourable treatment because of their sex.” The use of the word “deliberately” was entirely unnecessary, because it fixes the locus of discrimination within the conscious mental state of the discriminator, which is something that is in no way required by the but-for test.

In any event, the Court then reiterated the Nargesh Mirza holding, stating that on the “but-for” test, it had been found that because air hostesses and air flight pursers formed separate cadres, there was no discrimination on grounds of sex. The problems with this analysis have been explained in detail in a previous essay, and need no repetition. The Court then went on to observe, however:

“The constitutional prohibition to the State not to discriminate citizens only on sex, however, does not prohibit a special treatment to the women in employment on their own demand. The terms and conditions of their service have been fixed through negotiations and resultant agreements, settlement and awards made from time to time in the course of industrial adjudication. Where terms and conditions are fixed through collective bargaining as a comprehensive package deal in the course of industrial adjudication and terms of service and retirement age are fixed under agreements, settlements or awards, the same cannot be termed as unfavourable treatment meted out to the women workers only on basis of their sex and one or the other alone tinkered so as to retain the beneficial terms dehors other offered as part of a package deal. The twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour.”

First of all, the Court’s recourse to Article 15(3) is strange. If the Court had already decided to follow Nargesh Mirza on the point that Articles 15 and 16 were entirely inapplicable to the dispute, because the discrimination was not on the basis of sex, then the constitutional questions ended right there – there was no need to additionally justify the classification under Article 15(3). Secondly, if Article 15(3) was invoked, then clearly there was an element of discrimination under Article 15 and 16. But if that was the case, then how could the Court invoke Article 15(3) to override the barrier on discrimination in public employment under Article 16(2)? The scheme of Article 16 has no provision equivalent to Article 15(3); in fact, Article 16(4) makes it clear that affirmative action under the Article 16 scheme is limited to socially and educationally backward classes. In a previous essay, we have seen how High Courts were split over the issue of the relationship between Article 15(3) and 16(2). In blithely invoking preferential treatment for women, the Supreme Court simply ignored this fraught textual question.

Lastly – and most problematically – is the Court’s assumption that the Settlement was a positive measure in favour of women. To buttress this opinion, it observed:

“We have taken a resume of several agreements, settlements and awards made after negotiations from time to time and periodically, between Air India and the AICCA being the recognised association with majority of male and female cabin crew members. In all the demands, it insisted on maintaining two separate cadres for pre-1997 recruits and agreed for early retirement age to air hostesses compared to males from flying duties with option to go for ground duty between 50 to 58 years of age. In the course of industrial adjudication through conciliation and negotiation the employer could legitimately acknowledge women’s perspective, their life experience and view point. After giving consideration to the same, the employer could agree for terms and conditions which suited the air hostesses.”

But there are two key questions that the Court entirely ignored. First, is discrimination no longer discrimination, if I have agreed to it? And if the answer to the question is no, if discrimination is at least partially an objective fact, then can I contract out of my right not to be discriminated against? The Court’s stress on the negotiated settlement between the Employer and the Association as solving the problem of discrimination relied upon the answer to at least one of those questions being in the affirmative. But these are crucial questions of constitutional philosophy, that require a detailed analysis – not blanket assumptions. Philosophical thought experiments such as that of the happy slave warn us about the dangers of a subjectivist approach to discrimination; and the question of whether it is permissible to waive one’s fundamental rights is controversial even within Indian jurisprudence (waiver was expressly rejected for Article 14 in Basheshar Nath’s Case).

Admittedly, the fact situation in Yashaswinee Merchant was nowhere near as straightforward or obvious as the happy slave hypothetical. Arguably, the service conditions of air hostesses (accelerated promotions and allowances in return for early retirement) were not significantly worse than that of air flight pursers. Consequently, the negotiated settlement certainly ought to have played a part in the Court’s reasoning. However, it could not have replaced  the overriding requirement of a constitutional analysis, which would call upon Air India to justify why there existed all-male and all-female cadres with different service conditions in the first place. Notice that the enquiry would not have ended at that point, even if, all things considered, it had been found that the air hostesses’ service conditions were more beneficial. As we have seen earlier, Article 15(3) cannot be interpreted to present a blank cheque to the State to impose any policy that advantages women over men. The purpose of Article 15(3) is to redress long centuries of structural disadvantage faced by women, which cannot be wiped out through formal a non-discrimination guarantee. Consequently, measures based upon the same stereotypes and prejudices that contributed to this structural disadvantage surely cannot be justified by taking recourse to Article 15(3). However, towards the end of the judgment, it became clear that this was precisely what motivated the opinion of the Court:

“Duties on flight demand of air hostesses physical fitness, agility and alertness. Duties in air are full of tension and sometimes hazardous. They have, therefore, agreed for comparatively early age of retirement with option to accept duties on the ground. There is nothing objectionable for air hostesses to wish for a peaceful and tension-free life at home with their families in the middle age and avoid remaining away for long durations on international flights.”

The implication (as we have seen innumerable times by now) is, of course, that women somehow lose the physical fitness, agility, alertness and ability to deal with tension after crossing the age of 50, while men retain it until the age of 58; and that the fulfillment of family obligations is the sole preserve of women. And what’s crucial to notice here is that the Court’s framing of the issue as one of consent and choice was a sleight of hand: after crossing the age of 50, it was mandatory for an air-hostess to accept ground employment. In fact, this, precisely, was why the policy had been challenged – i.e., that it actively denied women eight year of in-flight employment that was available to men, for no other reason that they were women.

It is this aspect, indeed, that constitutes the most disturbing part of the judgment; because what seemed to sway the Court was not simply the fact of a settlement, but that it was entered into by a majority of the employees, including air hostesses. The Court noted: “A small number of air hostesses nearing the age of 50 years and who are now in executive cadre cannot wriggle out of the binding agreements and settlements to which they were parties through the association.”

But why should “small numbers” matter in a constitutional claim based upon the non-discrimination guarantee of Article 15? Civil rights would be meaningless if their enforcement was dependent upon a showing of numbers; in fact, the very purpose of civil rights is to serve as a counter-majoritarian bulwark for the protection of basic liberties. And in this case, the Court effectively held that a majority of air hostesses could impose their preferences upon a minority, regardless of whether or not they were discriminatory. Thus, the question in Yashaswinee Merchant was not merely one of waiver, because not every air hostess had waived her right against non-discrimination. But not only did the Court assume the legitimacy of waiver, it also effectively held that some could waive their rights on the behalf of others. Needless to say, this is deeply problematic.

Attentive readers will, of course, have noted that the “small numbers” of Yashaswinee Merchant would, twelve years later, be transmitted into the “minuscule minority” of Koushal vs Naz Foundation. The pathology remains the same.

Yashaswinee Merchant, therefore, suffers from many of the discontents that plague Nargesh Mirza. Apart from the stereotypes that play both an overt and a covert role in the judgments, there is something else that unites them: a clear-headed constitutional analysis is muddied and obscured by the technicalities of service law (cadres, service conditions, settlements) and statutory provisions (in both cases, those of the Equal Remuneration Act). It seems that the scope and ambit of constitutional rights flows from service law and the Equal Remuneration Act, instead of the latter being held to the standards of the former. The broader question that crops up repeatedly in these cases is the relationship between specific domains of law and the Constitution. This is not limited to service law: recall that the competition regime raises questions about free speech (in the case of media holdings), the intellectual property rights regime intersects with free speech (copyright) and access to health (patents); and so on. The Air Hostess cases reflect a deeper problem with the Court’s approach to constitutional adjudication: according primacy to these specific domains, deciding cases with references to the internal norms that govern them, and – consequently – subordinating the Constitution to those norms. Unlike the South African Constitutional Court, which examined trademarks in the context of free speech, or the Canadian Supreme Court, which analysed copyright in the context of user’s rights to educational materials, the Indian Supreme Court is yet to create a constitutional framework within which it can analyse these laws. That time, we can only hope, comes sooner rather than later.

 

Sex Discrimination and the Constitution – VII: The Retreat from Nargesh Mirza in MacKinnon Mackenzie

In the previous essay, we noted the analytical problems with the Supreme Court’s judgment in Air India vs Nargesh Mirza. However, six years later, in 1987, the Supreme Court handed down another judgment that substantially undercut the ratio in Nargesh Mirza. In MacKinnon Mackenzie vs Audrey d’Costa, a company offered different remuneration to male stenographers and female stenographers (the latter were called “Confidential Lady Stenographers”, because they performed a range of functions such as attending to correspondence etc. The Supreme Court held that paying a lesser wage to female stenographers violated the Equal Remuneration Act. It observed:

“Wherever sex discrimination is alleged, there should be a proper job evaluation before any further enquiry is made. If the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job) as distinct from criteria which set out different values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises.”

Notice the underlined part: “by the application of criteria which are by themselves non-discriminatory.” This effectively forestalls a Nargesh Mirza-type situation, where sex is the criterion that constitutes the differentiation in the job in the first place. The Court in MacKinnon Mackenzie emphasised that in adjudicating the validity of an unequal classification, it would consider the nature of the work involved, factoring out those criteria that could not themselves be explained without resorting to discriminatory justifications. Again, for instance, this would prevent a situation such as Nargesh Mirza, where the Court relied upon the fact that the qualification conditions for Air Hostesses required them not to be married, and that the absence of a similar condition for Air Flight Pursers was proof of how the two jobs were different! Indeed, the Court specifically held that “deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establishment.”

This observation is crucial, not merely because of its repudiation of Nargesh Mirza’s logic, but also because of its affirmation of the proposition that discrimination occurs not merely through direct exclusion of women, but also from structuring the workplace in a manner that disproportionately burdens women. Of course, the Court is cautious: it limits its observation to “deliberate” creation of conditions, which, in the context of the case seems to be merely about paying women less. As we have seen before, though, unequal remuneration is not the only way in which the workplace might operate to the detriment of women. The issues are structural, and involve a host of conditions, such as a minimal number of working days in a year, a perception of maternity leave as a benefit, and not a right, etc. In a seminal article written in 1989, the feminist scholar Joan Williams observed:

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

The key insight of feminist scholars, therefore, was to expand the understanding of discrimination from individual acts of exclusion or subordination (which naturally map on to a reason-based model of discrimination law), to interrogating the systems and structures within which discrimination is made possible. This, of course, is a much more difficult enquiry, especially because it requires questioning the baselines that we intuitively assume as “normal” (such as the default structure of the workplace). And however hesitant and cautious, MacKinnon Mackenzie’s focus on “conditions of work” allows for the beginnings of a more holistic and structural understanding of sex discrimination, than what the Courts have otherwise admitted.

It is important to note that MacKinnon Mackenzie was decided by a bench of two judges, and consequently, was bound by Nargesh Mirza. This led to an odd contradictions towards the end of the judgment, where the Court was constrained to observe: “We do not agree that the work of the Confidential lady Stenographers is a sex based one like the work of air hostesses. There is no custom or rule that only ladies can be Confidential Stenographers.” But surely there was no “rule” that required a division of cabin crew into (female) Air Hostesses and (male) Air Flight Pursers, and if there was a custom, surely it could not be made immune from constitutional scrutiny. As the Court itself had pointed out earlier in its judgment, the key issue was whether the two jobs were accorded equal value using criteria that were in themselves non-discriminatory, and in Nargesh Mirza, there had been a judicial finding to the effect that there was no legally significant difference in the work performed by Air Hostesses and Air Flight Pursers. Whichever way one spins it, the logic of MacKinnon Mackenzie is directly at odds with Nargesh Mirza. Nonetheless, in its (understandable) attempt to distinguish Nargesh Mirza, the Court got itself into all kinds of contortions, arguably undermining its own argument.

On an optimistic reading of MacKinnon Mackenzie, however, there’s no conceptual conflict with Nargesh Mirza. After all, even in Nargesh Mirza, the Court stated that “attributes” would be a part of determining whether the two cadres could be treated separately. It then went on to ignore that condition in adjudicating the concrete issue, but it was merely this proposition of law that MacKinnon Mackenzie was following when it held that equal remuneration is required “if the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job).” On this reading, MacKinnon Mackenzie correctly applied Nargesh Mirza’s logic, where Nargish Mirza had failed to correctly apply its own logic. The core reasoning – that sex-based classifications cannot be sustained simply by invoking service law and creating separate cadres – remains good law.

The logic of MacKinnon Mackenzie was taken to its conclusion by the Supreme Court in Uttarakhand Mahila Kalyan Parishad vs State of UP, decided by the Supreme Court in 1992. In that case, the Supreme Court found that the Uttar Pradesh education department’s creation of cadres of male and female teachers, and of paying female teachers less than male teachers, and according them inferior promotional avenues, was illegal. Consequently, it held: “While we direct by mandamus that the State of Uttar Pradesh shall equate the pay scales with effect from 1-10-1991, so far as the creation of promotional avenues is concerned, we direct the State of Uttar Pradesh to have this examined by an appropriate Committee within two months and give additional promotional avenues to the lady teachers and other employees in the educational line doing administrative business so that their grievance as raised in this petition is properly met.” Consequently, the remedy for violation was not simply invalidation of the cadres (which would leave an administrative vacuum), but at least a partial merging of the cadres (as far as pay scales were concerned), with directions to the State to equalise promotional avenues in a time-bound manner.