Tag Archives: sex equality

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).”

Advertisements

Leave a comment

Filed under Constituent Assembly Debates, Women

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.

 

 

 

 

2 Comments

Filed under Article 15 (general), Disparate Impact, Equality, Non-discrimination, Sex Discrimination, Sex Equality

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)

 

Leave a comment

Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Sex Equality

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.

 

Leave a comment

Filed under Equality, Non-discrimination, Sex Equality

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.

 

Leave a comment

Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Sex Equality

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.

 

Leave a comment

Filed under Equality, Non-discrimination, Sex Discrimination, Sex Equality