This is the part II in the two part series discussing sex equality under law through feminist jurisprudence. In part I, I had laid down the foundational logic of feminist jurisprudence and various feminist debates surrounding equality under law. In this part I will proceed to discuss and evaluate various Indian court decisions concerning sex discrimination, and trace the development of court's logic from a separate sphere theory to a transformative understanding of substantive equality under law.
Sex discrimination in the courts:
Employed with male logic and male laws in front of most likely a male judge, or a female judge who has been initiated into the male vision way of thinking about the law and thus equality, the task of reimagining and arguing for equality is full of epistemological effort. Mackinnon argues that since law is male, the notions of objectivity and neutrality that it is based on are established by the dominant male vision. She argues that the male point of view is so pervasive and near perfect that it has co-opted the idea of equality. Such a system is bound to eliminate female systems of thinking and ways of seeing. Feminists challenge the very idea of a value free position standing from where justice can be dispensed in a gendered reality.
The feminist scholar Wendy Williams argues three ways by which courts play an important role in debates about equality. Firstly, the way courts describe and understand equality has a larger bearing on how the society understands equality. Secondly, legal cases are often the focus of equality debates in popular culture and activism. Thirdly, such participation in cases also show us the societal perceptions with respect to ideas of equality and rights.
Closer home in India, the constitution gives us the right to equality, and equal protection of laws under articles 14-18, the so called equality code. More specifically article 15 lists sex as one of the prohibited grounds for discrimination. The courts in India initially engaged in what Gautam Bhatia calls a formalist reading of equality provision. The formalist reading is characterised by a diluted scrutiny of the actual grounds of discrimination that failed to find the real source of discrimination. As will be elucidated later, the legal reasoning employed in such cases is characteristic of gendered vision of equality. Courts have many times been complicit in the subordination of women while not unlocking the true potential and meaning of the right against discrimination under the constitution.
Mahadeb Jiew vs B.B. Sen involved the challenge to Order XXV, Rule 1 of the Code of Civil Procedure (1908). The rule allowed for security to be taken from plaintiffs in a legal proceeding in case they lost the case and were unable to provide the cost of litigation. For men, the rule only mandated security to be taken if they did not possess sufficient immovable property in India, and were living out of India. For females on the other hand taking security was mandatory if they did not poses sufficient immovable property regardless of where they were living. The Calcutta HC engaged in a formalist reading of Article 15 i.e. they held the rule to not violate article 15(1) because they opined that the reason of discrimination in an Aristotelian sense was sex and property, not sex alone. They interpreted that since article 15(1) only prohibits discrimination on sex alone, existence of other grounds not based on sex would make any such discrimination immune to such challenge. R.S. Singh vs State of Punjab involved challenge to government orders disqualifying any women to be appointed to any post in men’s jail (except clerk or matron). The HC held the discrimination to be valid and based its reasoning on the separate sphere theory. It stated that as long as there were ‘natural differences’ between the sexes, the same difference could be used to create such classification.
Air India v. Nargeesh Meerza: Separate Sphere & superficial scrutiny
Air India v. Nargesh Meerza involved a challenge to service rules that mandated Air Hostesses to retire at 35, or on marriage (if they married within four years of joining the service), or on their first pregnancy, whichever occurred earlier. The court’s reasoning to uphold the service rules was steeped deep in the separate sphere theory. The court opined “Art. 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination.” While modifying the rule which mandated Air hostesses to leave service on their first pregnancy with 'third pregnancy' the court did not change the other provisions. The court observed that the provision of discharging service of AHs who married within four years did not suffer any ‘constitutional infirmity’ because such rule would lead to a ‘successful marriage’ and good ‘family planning’.
There are three points to be made here. First, the court failed to observe that the reasoning employed in creating a classification between men and women under this rule is based on stereotypical ideas of capabilities and archaic roles of the respective sexes, and therefore is based on sex itself. This amounts to sex discrimination thereby violating articles 14,15 and 16. Second, the objective for such rules was to avoid the additional costs of hiring AHs on an ad-hoc basis to cover for those AHs that married within first four years of service and conceived a baby. Therefore, the rule is not merely discriminating on basis of ability to marry (which is not a prohibited ground under articles 15, and 16) but is discriminating on account of pregnancy. Discrimination on pregnancy is sex discrimination itself, and thus such a rule should have been struck down by the court. (Delhi HC's opinion that holds discrimination on pregnancy as sex discrimination - here). Third, this case is an interesting point that describes the inherent restrictiveness of the grounds of review under the classification test.
The classification test involves two steps. First there should be an intelligible differentia based on which the classification has been made, and secondly - there should be a rational nexus between the reasonable classification and the state objective. Discrimination between the sexes by itself does not violate equality clauses of the constitution (men and women in many instances have separate toilets, queues, modes of employment etc.) as long as these twin tests are satisfied. In this case, there was an intelligible differentia between the classes i.e. persons who can get pregnant (women) and persons who cannot get pregnant (men). Such reasonable classification also has a rational nexus to the state objective being sought i.e. efficiency and avoiding high expenditure by not allowing Air hostesses to marry and consequently conceive. There are two ways to solve this dilemma. First is to espouse a higher standard of proportionality review i.e. to ask the question of whether a less restrictive method can be used to achieve the state objective without discriminating against the right in question. Second is a heightened standard of scrutiny under rational nexus test that asks two further questions i.e. if the state interest is compelling enough to warrant the discrimination and if the classification made is necessary and balanced. The court has often used an alternative method of scrutinizing equality violation called the arbitrariness test. In it the court often looks if the state action is inherently unreasonable and arbitrary. The test is ill defined and does not require a classification to take place for article 14 violation. In the present case, the manifestly arbitrary route can be taken by arguing that eliminating Air Hostesses employment only for marrying within four years of service curbs the exercise of their consent and agency, and leaves them unemployed with a very little chance of re-skilling and gaining any other employment. A rule that has these effects can be argued to be arbitrary and unreasonable for women. Underlying a lot of these arguments is the sense of increasing the burden of proof on the state for violating any of the fundamental rights. Tarunabh Khaitan argues that a rigorous standard of review should be espoused by courts in fundamental rights violation because they are no ordinary rights and demand special consideration.
Breaking away from this formalist reading, the Delhi HC in Walter Alfred Baid vs UOI which involved a challenge to a rule that only allowed females to be senior nursing tutors, stated that ‘it is difficult to accept the position that a discrimination based on sex is nevertheless not a discrimination based on sex “alone” because it is based on “other considerations” even though these other considerations have their genesis in the sex itself’. Thus finally realising that the sex plus other ground itself is steeped in discriminatory theories of differences between sexes, and thus cannot be argued to not be a discrimination on sex alone. Rani Raj Rajeshwari Devi vs State of UP involved a challenge to a rule that allowed the government to declare any women ‘incapable of managing their property’ without any qualifications. The Court held that the form of the differences and its basis was irrelevant as long as the effect of such legislation was to treat identically placed men and women differently. It espoused for heightened scrutiny in sex discrimination cases to delve deeper into the real origin of the ‘differences’. The court opined that no legislative classification could be based on generalized or stereotypical characteristics attributed to either men or women and based on gendered notions of reality.
Anug Garg & Ors. v. Hotel Association of India & Ors. involved a challenge to section 30 of the Punjab excise act, 1914 which prohibited employment of any male under 25 or any female in premises where liquor or intoxicating drug is consumed by the public. The court, holding the legislation unconstitutional espoused for a standard of strict scrutiny and stated that “Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role”. Thus the court finally in a feminist jurisprudential reading of the law understood the couched language of male vision bias inherent in law and argued for a nuanced understanding of what the effect of such classification was, and if the classification in turn was based on stereotypes and discrimination itself. When Anuj Garg stated that ‘any such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women’ it was explicitly reading into our constitutional protection of equality a substantive test of equality long held by feminist scholars that holds that the real test of any sex discrimination legislation is to see ‘whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status’. Anuj Garg thus laid down a very important precedent of strict scrutiny when apparently ‘objective’ and ‘natural’ notions of differences between the sexes form the basis of sex discrimination.
Gautam Bhatia argues Anuj Garg to be a transformative reading of the article 15 on two counts. First it states that under 15(1) legislation should be tested on the institutional and systemic effects and not only on state’s intended aims and goals. Second, in no way can any discrimination be allowed which is based on stereotypes about roles, capabilities and capacities of the sexes. This he argues becomes important not only because of the heightened scrutiny that accounts for the ground reality and the how a classification based on discriminatory theories of the sexes propagates and entrenches sex subordination, but also because state is very unlikely to expressly invoke stereotypes to enact legislation which is prima facie discriminatory. Anuj Garg lays the foundation of strict scrutiny of such legislations that on the face may appear neutral and objective (as per the male vision bias of logic and reality itself) but end up propagation and entrenching systemic inequality of women, thus exploring a new chapter of substantive equality.
It is argued that for equality jurisprudence to be truly transformative rather than merely ‘inclusive’ the understanding of substantive equality has to be rooted in understanding how ‘inequality as rooted in political, social and economic cleavages between groups, rather than the result of arbitrary or irrational action’. A constitutional commitment to equality is thus also a commitment to recognise, organise and change the systemic inequalities that entrench such discrimination. Mackinnon calls the law ‘Treacherous, uncertain, alien and slow’, but at the same time argues that it is too powerful in its potential to be ignored by feminists. Thus a commitment to feminist jurisprudence is a commitment to epistemological and psychological sophistication in law, and to investigate the genderization of the law itself, to question everything. To reimagine not only how law is applied, but the law itself.
The court’s reasoning in these cases displays what Mackinnon argues to be ‘law’s maleness in the very form of legal reasoning privileging male reality’. Court in Mahadeb, Singh & Meerza used patriarchal notions of gender and reality to adjudicate on substantive equality. The sense of ease and obviousness in these decisions is a testament to the extent of male vision nature of law itself. The courts also did not venture into the question of whether the other in sex plus other grounds of reasoning was in turn built on the very same notions of discrimination that article 15 was established to eliminate.
Breaking away from this formalist reading, the Delhi HC in Walter Alfred Baid vs UOI which involved a challenge to a rule that only allowed females to be senior nursing tutors, stated that ‘it is difficult to accept the position that a discrimination based on sex is nevertheless not a discrimination based on sex “alone” because it is based on “other considerations” even though these other considerations have their genesis in the sex itself’. Thus finally realising that the sex plus other ground itself is steeped in discriminatory theories of differences between sexes, and thus cannot be argued to not be a discrimination on sex alone. Rani Raj Rajeshwari Devi vs State of UP involved a challenge to a rule that allowed the government to declare any women ‘incapable of managing their property’ without any qualifications. The Court held that the form of the differences and its basis was irrelevant as long as the effect of such legislation was to treat identically placed men and women differently. It espoused for heightened scrutiny in sex discrimination cases to delve deeper into the real origin of the ‘differences’. The court opined that no legislative classification could be based on generalized or stereotypical characteristics attributed to either men or women and based on gendered notions of reality.
Anuj Garg & Transformative constitutionalism
Anug Garg & Ors. v. Hotel Association of India & Ors. involved a challenge to section 30 of the Punjab excise act, 1914 which prohibited employment of any male under 25 or any female in premises where liquor or intoxicating drug is consumed by the public. The court, holding the legislation unconstitutional espoused for a standard of strict scrutiny and stated that “Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role”. Thus the court finally in a feminist jurisprudential reading of the law understood the couched language of male vision bias inherent in law and argued for a nuanced understanding of what the effect of such classification was, and if the classification in turn was based on stereotypes and discrimination itself. When Anuj Garg stated that ‘any such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women’ it was explicitly reading into our constitutional protection of equality a substantive test of equality long held by feminist scholars that holds that the real test of any sex discrimination legislation is to see ‘whether the policy or practice in question integrally contributes to the maintenance of an underclass or a deprived position because of gender status’. Anuj Garg thus laid down a very important precedent of strict scrutiny when apparently ‘objective’ and ‘natural’ notions of differences between the sexes form the basis of sex discrimination.
Gautam Bhatia argues Anuj Garg to be a transformative reading of the article 15 on two counts. First it states that under 15(1) legislation should be tested on the institutional and systemic effects and not only on state’s intended aims and goals. Second, in no way can any discrimination be allowed which is based on stereotypes about roles, capabilities and capacities of the sexes. This he argues becomes important not only because of the heightened scrutiny that accounts for the ground reality and the how a classification based on discriminatory theories of the sexes propagates and entrenches sex subordination, but also because state is very unlikely to expressly invoke stereotypes to enact legislation which is prima facie discriminatory. Anuj Garg lays the foundation of strict scrutiny of such legislations that on the face may appear neutral and objective (as per the male vision bias of logic and reality itself) but end up propagation and entrenching systemic inequality of women, thus exploring a new chapter of substantive equality.
Conclusion
It is argued that for equality jurisprudence to be truly transformative rather than merely ‘inclusive’ the understanding of substantive equality has to be rooted in understanding how ‘inequality as rooted in political, social and economic cleavages between groups, rather than the result of arbitrary or irrational action’. A constitutional commitment to equality is thus also a commitment to recognise, organise and change the systemic inequalities that entrench such discrimination. Mackinnon calls the law ‘Treacherous, uncertain, alien and slow’, but at the same time argues that it is too powerful in its potential to be ignored by feminists. Thus a commitment to feminist jurisprudence is a commitment to epistemological and psychological sophistication in law, and to investigate the genderization of the law itself, to question everything. To reimagine not only how law is applied, but the law itself.
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