The Transformative Constitution
Page 4
Indeed, any attempted task of imposing a single truth upon the Constitution would be a futile one. As Robert Cover pointed out in a famous essay, ‘no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning’.118 And narratives are never singular. Through the course of his essay, Cover explored the proliferation of legal meanings and narratives through a range of examples taken from US history. For instance, in the mid-nineteenth century, the ‘radical constitutionalists’ challenged the US Supreme Court’s interpretation of the relationship between slavery and the constitution. They advanced an insurgent, alternative reading of the constitution that used the constitutional structure and a broader interpretive canon (including the Declaration of Independence) to argue that slavery was not just a moral wrong, but that it was unconstitutional.119 There is thus an inevitable plurality of ‘meanings’ that circulates around the constitutional text, as well as a plurality of ‘narratives’ within which the text comes to be located. Legal and moral tensions arise when dominant meanings and narratives, as selected by courts, are challenged by dissident individuals and communities who build alternative systems of meaning.
But, in this book, that dissent comes from within the courtroom. The nine judgements are not part of the traditional ‘constitutional canon’, as taught in law schools or found in popular writing—the canon that is defined by Kesavananda Bharati, Maneka Gandhi, Minerva Mills, Vishaka, and so on. Instead, they include high court judgements that were reversed by the Supreme Court, dissenting opinions, and Supreme Court judgements that remain good law but are rarely relied upon or even cited by the contemporary Court. This is a contrapuntal canon.
I borrow the term contrapuntal from Edward Said, who counselled us to read any textual tradition ‘with an effort to draw out, extend, give emphasis and voice to what is silent or marginally present’.120 From the detritus of the Indian constitutional canon—the dissenting opinions, the overruled high court judgements, and the ignored or marginalized Supreme Court decisions—there shines forth the vision of the transformative Constitution, and the trinity of liberty, equality, and fraternity. By reading our constitutional history against the grain,121 it is a vision that is open to us to retrieve and reclaim.122 That is the task of this book.
Part One
Equality
Article 14
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
…
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Article 16
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
…
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
1
Sex Discrimination: Anuj Garg and the Anti-Stereotyping Principle
NO EYEBROWS WERE RAISED when, in 1914, the colonial government enacted the Punjab Excise Act—a dry-as-dust, eighty-section legislation regulating the transport and sale of liquor in Delhi. Tucked away unobtrusively in the middle of the Act was Section 30, part of a bouquet of prohibitions and penalties:
No person who is licensed to sell any liquor or intoxicating drug for consumption … shall … employ or permit to be employed … any man under the age of 25 years or any women in any part of such premises in which such liquor or intoxicating drug is consumed by the public.1
It took eight decades before an eyebrow was finally raised. The constitutionality of Section 30 was challenged in 1999. The Delhi High Court held that it was discriminatory against women and struck it down. In 2008, the case proceeded to the Supreme Court (Anuj Garg v. Hotel Association of India).2 The Government of Delhi contended that the law had been framed to protect women from the hazards of employment in the liquor industry. A bemused Supreme Court did not need too many words to reject this argument, noting in conclusion that the law resulted in ‘invidious discrimination perpetuating sexual differences’.3
Striking down a law excluding women from an entire industry may seem easy.4 Anuj Garg, however, was more than just that. It was the first time that the Supreme Court seriously engaged with the meaning of the constitutional imperative contained in Article 15(1): ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ In doing so, I will argue, it initiated a jurisprudence whose impact extended far beyond the Punjab Excise Act, and which could become the foundation for a transformative constitutional vision of gender equality.5
I begin by excavating the sparse text of Article 15(1) of the Constitution (I) and then examine the history of Indian sex discrimination jurisprudence in the six decades leading up to Anuj Garg (II). This history can broadly be divided into two intellectual traditions. The first is a ‘formal reading’, which justifies differential treatment of men and women on the basis of presumed ‘natural differences’ between the sexes. It also holds that discrimination results only from conscious, hostile intentions of lawmakers. Set against this approach is the ‘transformative reading’, which rejects the notion of ‘natural differences’. It understands discrimination as a product of social, economic, and cultural structures and institutions that create ‘patterns of … exclusion’.6 The judgement in Anuj Garg is the culmination of this second tradition.
Then, in (III), I trace the roots of gendered stereotypes to a social and political consensus that divided the colonial Indian society into two ‘separate spheres’: a public sphere to be occupied by men, and a private sphere—representing the ‘community’—that was the domain of women. I argue that this idea of separate spheres was challenged by the political movement for women’s right to vote, a movement whose vision triumphed with the framing of the Constitution (IV). Consequently, Anuj Garg was correct in rejecting the conception of ‘natural differences’. I conclude by discussing the transformative potential of the reasoning in Anuj Garg for sex discrimination jurisprudence in the years to come (V).
I. ‘Shall not discriminate … on grounds only of … sex …’
Let us tentatively define ‘discrimination’ as an unequal and unjustifiable distribution of benefits and burdens between people or groups of people.7 Immediately, however, we run into problems. For example, racial segregation in the West was defended for many years on the faulty basis that the facilities offered to whites and blacks were ‘separate but equal’. Closer home, we can imagine that if the State were to provide public facilities (for example, separate public toilets) based on caste, it would be presumptively unconstitutional. On the other hand, separate toilets for men and women do not appear to raise any constitutional concerns.8 It, therefore, seems that in some cases, the mere act of classification creates constitutional problems, while in other cases this is not so.9
Further, notice that the act of classification precedes differential allocation of benefits and burdens. Therefore, the problem is not material but expressive in at least some cases. Whatever the actual distribution of tangible or material benefits, certain kinds of classifications by their very nature communicate a social message of separation and segregation. This is inextricably connected with superiority and inferiority, exalting certain groups and demeaning others. When we consider sex discrimination under Article 15(1), the
refore, the first question that we must ask ourselves is whether all sex-based classifications are at least presumptively discriminatory (they might still ultimately be constitutional if the State can justify them), or whether something more than mere classification is needed to make out a claim of discrimination.10
The word ‘grounds’ is equally slippery. On one reading, ‘grounds’ might refer to someone’s subjective reasons for holding a set of beliefs, or acting in a certain way. For example, consider the question, ‘What are the grounds upon which you acted?’ which roughly translates to ‘Why did you act in this way?’ On this reading, under Article 15(1), the phrase ‘on grounds only of … sex’ qualifies the phrase ‘The State shall not …’ and translates into the following injunction: the grounds of sex, race, caste, etc. cannot be what motivates the State to discriminate against anyone.
The word ‘grounds’, however, need not only translate into ‘reasons for’. It could also be understood to refer to the personal attributes of sex, caste, race, religion, and place of origin set out in the latter part of Article 15(1). On this reading, Article 15(1) does not ask us to locate the root of discrimination in the reason or motivation for State action, but asks us to focus on how an act of discrimination, in its effects, might involve one of the grounds listed under Article 15(1). For example, a hypothetical law that requires people to relinquish their employment on pregnancy might be motivated by reasons of efficiency, and would thus not be discriminatory in the first sense of the word ‘grounds’. But it is also part of a broader institutional structure of workplace norms that disadvantage women from achieving parity with men. Therefore, it can be argued to be discriminatory in the second sense of the word ‘grounds’.11 As the Canadian Supreme Court put the point, the distinction between the two approaches is a distinction between locating discrimination in the ‘moral blameworthiness’ of individual actors and their actions (in this case, the State) on the one hand, and on the other locating it in ‘policies and practices’ whose effect is discriminatory ‘even if that effect is unintended and unforeseen’.12
This dual understanding of the word ‘grounds’ acquires particular salience when read alongside two words that follow: ‘only’ and ‘sex’. Does the placement of the word ‘only’ after ‘grounds’ allow the State to get away with discriminatory action if it can demonstrate the existence of grounds additional to sex?13 And does ‘sex’ itself refer only to the observable, physical distinctions between men and women, or does it also include social norms and assumptions that are often superimposed upon physical difference, and which make that physical difference salient?14 For example, the fact that women can become pregnant and men cannot is a physical difference. However, that difference acquires salience only in the context of workplace regulations which, by default, require a certain number of days of attendance in the year, and therefore disadvantage pregnancies.15
Lastly, Article 15(1) cannot be separated from Article 15(3):
Nothing in this article shall prevent the State from making any special provision for women and children.16
Textually, Article 15(3) is framed as an exception to Article 15(1), saving State action that would otherwise have violated the non-discrimination clause, as long as it is a ‘special provision for women …’17 However, does the phrase ‘special provision’ provide a carte blanche to the State? That seems unlikely because, structurally, Article 15(3) is nested not only within Article 15 (that deals with discrimination), but within the broader Equality Code of the Constitution (Articles 14 to 18).18 Its purpose seems to be obvious: to allow the State to make laws removing existing social or cultural barriers that prevent women from achieving genuine equality with men in various fields.19 Consequently, to fall within Article 15(3), State action would need to bear some relation to the above goal. What that leaves open, however, is the nature and degree to which the State might be called upon to demonstrate that relation.20
II. Article 15(1): The Courts and the Constitution
A. The Formalist Approach
Soon after the Constitution came into force, the High Court of Calcutta was asked to decide the scope of the sex discrimination clause. Order XXV, Rule 1 of the Code of Civil Procedure (1908) outlined the conditions under which plaintiffs in a legal proceeding could be required to furnish a security to the court. This was to guard against the eventuality that they lost the case, were ordered to pay the costs of litigation to the other party, and were unable to do so. Security could be taken from male plaintiffs in case they were residing outside India and did not possess sufficient immovable property in India. From female plaintiffs, on the other hand, security could be taken merely if they did not possess sufficient immovable property, regardless of where they were living.
In Mahadeb Jiew v. B.B. Sen,21 the High Court of Calcutta rejected a challenge to this provision, holding that the discrimination wrought by the provision was not on grounds of sex alone, but of sex and property.22 So, even though Order XXV, Rule 1 treated men and women who were otherwise in an identical position (non-propertied and resident in India) differently, the Court held that Article 15 barred only ‘discriminations on the grounds of sex alone and on no other grounds’.23
In Mahadeb Jiew, the Calcutta High Court did three things. First, it read the word ‘only’ in Article 15(1) to mean ‘that and no other’. Legislation would be held not to violate Article 15(1) as long as the State could demonstrate that its discriminatory classification took into account at least one feature other than those listed under Article 15(1).24 Second, it did not examine the legislation’s effect (which was to place a burden upon non-propertied resident women but not their male counterparts), but limited itself to examining the formal basis of the legislative classification (sex + property). And third, the Court made no attempt to undertake a deeper examination into the foundations of the impugned legislation. Why was it the case that resident, non-propertied female plaintiffs could be required to pay security for costs, but resident, non-propertied male plaintiffs could not? The answer is clear: the law rested on assumptions or stereotypes about women’s financial acumen (or lack thereof), and their (in)ability to earn and pay on demand. A formal reading of Order XXV, Rule 1 that stopped at noting that the legislative classification was drawn along sex and property simply ignored the fact that ‘sex’ and ‘property’ were not analytically distinct and separate categories. Rather, ‘sex’ and ‘property’ together advanced a legislative vision (and a legislative result) that relegated the financial capacities of women to a lesser sphere than those of men, with no other justification than the fact that they were women.
The logic of the Calcutta High Court was taken one step forward by the High Court of Punjab and Haryana in R.S. Singh v. State of Punjab,25 a case challenging the governor’s order disqualifying women from being appointed to any post in a men’s jail (apart from clerk or matron). Rejecting a claim brought to it by a woman who had been refused appointment as the superintendent of a men’s jail, the Court held that sex, along with ‘other factors’, could be a legitimate basis of legislative classification. These factors included:
patent physical disparities … [differences] in the structure of body, in the functions to be performed by each, in the amount of physical strength … [in] the influence of vigorous health upon the future well-being of the race …. [in] the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence.26
Further, women’s ‘physical structure and the performance of maternal functions’ were two ‘conditions’ cited that placed them at a ‘disadvantage in the struggle for subsistence.’ The Court held that as long as legislation was founded upon these ‘natural differences’ between the sexes, even if it drew a clear line privileging men over women, it could be justified. It then upheld the challenged order because ‘it needs no great imagination to visualize the awkward and even the hazardous position of a woman acting as a warder or other jail official who has to personally ensure and maintain discip
line over habitual male criminals’.27 Here, the ‘natural differences’ that the Court outlined in the paragraph above were transformed into salient differences in the context of prison hiring. Presumably because of the disparities in physical strength, self-reliance, and so on, the State could legitimately discriminate against women in contexts where such disparities were relevant considerations.
Read together, B.B. Sen and R.S. Singh advance what Ratna Kapur calls the ‘formalist reading’ of Article 15(1).28 Broadly, the formalist reading consists of three prongs. First, State-sanctioned differential treatment between men and women does not amount to ‘discrimination’ if it is based on ‘natural differences’ between men and women. These natural differences are presumed to exist between all men and all women (or at least between enough men and enough women that the blunt instrument of law can assume them to be universal when it makes classifications). Second, the word ‘grounds’ is to be read as referring predominantly to the form of the legislative classification under challenge (e.g., sex + property), and not its impact. And third, the phrase ‘only … of sex’ in Article 15(1) is to be read to mean ‘sex alone, and nothing else’.29
The formalist reading culminated in the three-judge bench decision of the Supreme Court in Air India v. Nargesh Meerza,30 decided in 1982. Nargesh Meerza involved a constitutional challenge to Regulations 46 and 47 of the Air India Employees’ Service Regulations. These regulations created significant disparity between the pay and promotional avenues of male in-flight cabin crew (Air Flight Pursers or AFPs) and their female counterparts (Air Hostesses or AHs). For example, while the retirement age for AFPs was fifty-eight years, AHs were compelled to retire at the age of thirty-five years, or on marriage (if they married within four years of joining the service), or on their first pregnancy, whichever occurred first. After many lengthy and complex rounds of litigation before different forums, the Supreme Court finally upheld the Regulations in part, modified them in part, and struck them down in part. The Supreme Court’s judgement involved some problematic reading of service law jurisprudence, but more importantly the Court endorsed the Sen-Singh line of reasoning. It upheld the Regulations because the disparities were based ‘on the grounds of sex coupled with other considerations’.31 The marriage regulation, for instance, was upheld because: