And lastly, as a corollary, the formalist approach is wedded to an understanding of sex that attaches a whole range of physical, mental, and emotional attributes to men and women as a class. This is why, if an unequal law is based on these attributes, the formalist approach treats it not as (impermissible) discrimination but as (valid) classification. And it is this understanding of sex that the transformative approach rejects. Importantly, the transformative approach is not committed to denying the existence of differences between men and women. What it is committed to is rejecting the manner in which these differences are often given legal salience, as the bases of laws that permit or sanction discrimination.
In their approach to sex equality and discrimination, these two approaches are polar opposites of each other. Which of them is correct? The bare-bones language of Article 15(1) gives us no answers. We must therefore turn to constitutional structure and constitutional history.
III. Separate Spheres
The division of the world into gendered public and private spheres was a staple feature of the subcontinent’s social and political thought from the second half of the nineteenth century. It was influenced by a combination of Enlightenment and Victorian morality on the one hand59 and appeals to an authentic ‘Indian tradition’ on the other.60 For instance, in his examination of the ‘woman question’, as framed and taken up by the Indian nationalist movement, Partha Chatterjee identifies the division of social space into:
… ghar and bahir, the home and the world. The world is external, the domain of the material: the home represents one’s inner spiritual self, one’s true identity. The world … 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.61
This was both a physical division of space (the ‘home’ and the ‘outside’) and a division of functions. While the outside was the realm of politics and economics, the domestic space was characterized by ‘enlightened childcare, cookery, accounts, and family education’. And furthermore, the relationship between the two was hierarchical, because ‘the male world of work and public intervention carried more prestige and status than the female world of domesticity’.62
The gendered division between the public and the private spheres was reflected in numerous ways: in educational policy, for example, both in terms of the justification for women’s education (‘… a good grounding in health and hygiene in order to raise robust children …’63), as well as in the framing of separate curricula for boys and girls, with a focus on the ‘domestic virtues’ for the latter;64 in laws, where an 1827 rule barred women from inheriting watan (a specific kind of property), and a 1904 Bombay Regulation granted local administrators the power to ‘declare a female landholder incapable of managing her property “on grounds of sex”’;65 in the sphere of employment, where it found its support in no less a figure than Gandhi, who famously remarked that the ‘equality of sexes does not mean equality of occupation’;66 and so on. So pervasive was this view that echoes of it continued to resound well into the twentieth century, and within women’s forums. At its first gathering in 1927, the All India Women’s Conference (AIWC) passed multiple resolutions on education that endorsed sex segregation so as to prepare men and women for ‘their different tasks in life’, as well as highlighting motherhood and social service as the core values of women’s education.67 In its initial years, the AIWC followed the nationalist movement by drawing a clear line of separation between the ‘political’ and the ‘social’, and accepting that the former was the domain of men and the latter of women.68
However, while this was the dominant view, it was by no means an unchallenged one. In Samya, perhaps the first Indian political text on equality to come out of the colonial period, the famous writer and thinker Bankim Chandra Chattopadhyay devoted a full chapter to sex discrimination. He began his analysis by quoting the theory of natural difference, before rejecting it entirely:
… the areas in which there are differences in rights between men and women do not correspond to sufficient natural differences between them. The evident differences are due to faulty social rules. The basic idea behind notions of equity is to amend these social rules.69
What were these ‘faulty social rules’? Bankim cited disparities in education, in the right to remarriage, and in the right to move outside the four walls of the house, each of which corresponded to the gendered division of the public and private spheres.70 Having located the root of the disparity in the assumption of gender roles, Bankim then argued that the task of equality was to demolish such rules:
An equal society is built out of several different and interdependent strands. If it is true that men and women should be entitled to equal rights everywhere, then it is equally true that the woman’s lot is not that of rearing and feeding the child, or at least, that is not her responsibility alone. If there is true equality, both men and women must bear an equal share in what is called the duties of the household. One partner will tend to the household and be deprived of education, the other partner will escape such onerous duties and become learned—regardless of whether this is natural or not, is against the principles of equality … [and] inequality leads to inequality.71
At the heart of Bankim’s argument for sex equality were three crucial insights, which placed him at odds with the ‘natural differences’ school of thought. First, he delinked whatever natural differences that existed between men and women from differences in rights. In other words, while he acknowledged the fact of differences, he rejected their salience (or, in other words, their social relevance). Second, he rejected the relevance of natural differences in fixing social roles for men and women. Finally, and perhaps most importantly, he located the root causes of gender equality not in individual acts, but in the design of social institutions and rules. And he then argued that the role of equality was to ‘amend’ precisely those social rules that made natural differences salient in fixing social roles and in the allocation of rights to men and women—if necessary, through active intervention. Here, in a proto-form, we can vividly see the transformative jurisprudence of sex equality that would be endorsed by the Supreme Court in Anuj Garg, almost 130 years later.
While Bankim’s was a minority voice, it was by no means the only one. Right from the early social reform movements in various parts of colonial India, scholars and activists argued that the perceptible differences (in education, awareness, and even character) between men and women were rooted not in any natural state of affairs, but in social ‘prescriptions, demands, and the disciplinary order’.72 This case was made both by notable male reformers such as Raja Ram Mohan Roy and Ishwar Chandra Vidyasagar, as well as by the few women writers who carved out a presence for themselves in the public sphere of letters. In an early version of an argument that gender hierarchy was a product not of ‘natural differences’ but of social construction, Rukhmabai (who would later attain fame as one of the first Indian women to qualify as a doctor) noted that ‘reduced to [a] state of degradation by the dictum of the shastras, looked down upon for ages by men, we have naturally come to look down upon ourselves’.73 The ‘essentialist nature of womanhood’ was further challenged, in their writings, by Rokeya Sakhawat Hossain,74 Krupabai Satthianadhan,75 and Soonderbai Powar,76 and in actual conduct by Pandita Ramabai, who taught carpentry and masonry in a school that she founded for orphaned widows and girls.77 Subsequently, in the early twentieth century, ideas of natural difference and social roles were rejected both by a nascent women’s movement in Maharashtra,78 as well as the more radical Self-Respect movement in Tamil Nadu.79
These arguments were eventually to find their way into official political discourse, in the form of the Indian National Congress-sponsored National Planning Committee’s 1939 report, titled ‘Women’s Role in a Planned Economy’.80 This document began by noting that ‘woman shall have an equal status and equal opportunities with man … the State while planning shall consider the individua
l as the unit … marriage shall not be a condition precedent to the enjoyment of full and equal civic status, social rights and economic privileges …’81 It specifically went on to demand, among other things, ‘a full and equal share in the economic life of the community’82 and expressly rejected any separation of educational curricula on the lines of sex.83As we have seen above, both these issues, i.e., participation in economic life and the structure of educational curricula, were at the base of the separate-spheres model. And, like Bankim and Rukhmabai, the 1939 report argued that inequality was the result of existing social institutions, and that the remedy entailed changing those institutions. Concrete proposals to do just this included crèches in all workplaces and local bodies, prohibiting retrenchment upon marriage, maternity-oriented schemes of social insurance, and financial compensation for housework.
Thus, out of the rejection of the separate-spheres theory, we have also a proto-critique of gender discrimination as a result of institutional and structural patterns of exclusion and subordination, and consequently a call for remedies to be shaped around understanding and mitigating this reality. In constitutional language—or, what would become constitutional language later—Bankim and, after him, Rukhmabai as well as other thinkers, and then the 1939 report, were simultaneously advancing a version of the anti-stereotyping principle to rule out separate-spheres-based justifications of discrimination, and also affirming an understanding of discrimination that focused upon the impact and effect of institutions upon the lives of people, rather than upon the conduct or hostile intentions of individual actors. It was this two-pronged argument, framed as an interpretation of Article 15(1), which ultimately came to be at the heart of the judgement of the Supreme Court in Anuj Garg.
IV. Sex Roles, the Indian Franchise Movement, and the Constitution
In the previous section, I have attempted to demonstrate that the dominant idea of separate spheres, present in colonial India, was at all times challenged by an oppositional tradition of ideas that rejected it root and branch. And it is in this context—amidst the battle of conflicting sets of ideas about the very meaning of equality—that we must now consider the Indian franchise movement. It is through the battles around women’s right to vote, I argue, that the transformative vision of equality was written into the Constitution. Voting is the quintessential public act, the most basic affirmation of equal citizenship. The link between voting and the fate of a separate-spheres account of society, therefore, is intuitively obvious.
Unsurprisingly, at the time that the colonial regime first contemplated granting a restricted franchise to Indians, the two conflicting visions of gender differences and sex equality spilt over into the debates over whether, and on what terms, to extend the vote to women. The debate began during the Indian visit of Edwin Montagu, the British Secretary of State, whose plans of introducing institutions of limited self-government for India included an expansion of the franchise. Montagu was met by a deputation of women, representing the newly formed Women’s Indian Association (WIA), who submitted a demand for a limited vote. This demand, however, was rejected, both by Montagu and by the Southborough Committee on the Franchise, which followed a year later.84 However, after some intense campaigning by women’s organizations, a compromise was arrived at, allowing provincial legislatures, if they so wanted, to pass resolutions allowing women to vote, on whatever terms they saw fit.85 Over the next decade (the 1920s), in response to public pressure, provincial legislatures progressively began to remove the sex disqualification from the franchise.86
What is particularly important, however, is the justification advanced for extending the vote to women. On one side, the demand was structured in a manner that placed the separate-spheres theory at its heart. The argument was summed up in the pages of the Anand Bazaar Patrika by Kumudini Bose:
… it is said in the first instance that woman’s place is in the home. I do not deny it. No woman ever does … by getting the suffrage she is not going to be ousted from her home; on the other hand, she will, by her vote, influence and control the legislation that is likely to be passed in the Council affecting her home …87
The argument then was not that women deserved the vote because they had an equal right to participate in the public realm. Rather, the argument was that because politics impacted the private realm, the voice of women was important to ensure that legislation was adequately responsive to the concerns of the home. These concerns included (in the words of the proponents of suffrage) children, sanitation, and morality,88 and temperance and the laws of property.89 Indeed, as some scholars note, women advocates for the vote went out of their way to assure their male counterparts that they were not aiming to undermine traditional gender roles.90
In the initial years, as the provincial legislative councils began to incrementally expand the franchise to women, this understanding—now known as social feminism—formed the basis of the demand for the vote.91 Organized groups such as the WIA and the All India Women’s Conference on Educational and Social Reform invoked issues of child marriage and devadasis to justify the nomination of women to the legislature, while Margaret Cousins, one of the earliest proponents of extending the franchise to women, cited ‘education, health, morality, prohibition, children bills, etc.’ as ‘specific interests relating to women’s interests’.92 This view was also supported by prominent political figures such as Sarojini Naidu (also one of the leaders of the franchise movement), who unambiguously stated that ‘men and women have separate goals and separate destinies and that just as men can never fulfil the responsibility of a woman, a woman cannot fulfil the responsibility of man’.93
The argument that men and women represented separate constituencies, with separate ‘natural’ interests, both sets of which needed to be represented in the political arena, had an obvious corollary: a legislative model based either on special reservations for women, or on separate electorates of the kind that existed on the lines of religion, and which B.R. Ambedkar tried, and failed, to achieve for ‘the Depressed Classes’.94 The stated logic underlying separate electorates on religious lines was precisely that of communal representation: just as there existed such a thing as a religious community, defined by specific and distinct interests, and which could only be represented effectively by members of that community, there existed ‘a women’s constituency that represented women’s issues and was embodied by the candidate’.95 Indeed, at the First Round Table Conference at London, the British-nominated representatives96 of the Indian women’s movement, Begum Shahnawaz and Radhabai Subbarayan, specifically argued that the ‘division of responsibilities’ between men and women required separate reservations for women in the legislatures.97 And in 1935, following upon the recommendations of the Lothian Committee, the Government of India Act—a proto-constitutional document—along with providing a restricted franchise for women based on property and educational qualifications, also provided for the reservation of seats on the lines of gender.98 This, then, was the culmination of the social-feminist argument for the franchise.99
Social feminism, however, was not the only argument invoked to support votes for women. There was another, simpler argument. Although in their private interview with Montagu, the Sarojini Naidu-led deputation focused on legislation dealing with children, sanitary conditions, and morality, the actual text of the deputation itself read differently:
Our interests, as one-half of this country’s population, are directly affected by the demand that ‘The members of the Council should be elected directly by the people on as broad a franchise as possible’, and in the Memorandum that ‘the franchise should be broadened and extended directly to the people’. We pray that, when such a franchise is being drawn up, women may be recognized as ‘people’, and that it may be worded in such terms as will not disqualify our sex, but allow our women the same opportunities of representation as men.100
Significantly, this part of representation grounded the vote not in the special roles or capacities of women, but as a simple
question of political parity, and ‘opportunities of representation’.
As Mrinalini Sinha puts it:
… the political demands of women were also beginning to be articulated by means of a new set of concepts – equality, rights, representation – that were associated less with the imperatives of enduring cultural or national ‘difference’ than with a liberal political discourse of women as themselves rights-bearing subjects.101
Further, in 1918, the same year as the women’s deputation met Montagu, Saraladevi Chaudharani, speaking at a session of the Indian National Congress, rejected the ‘fanciful division of intellect and emotion being the respective spheres of men and women’,102 endorsed an equal right to self-determination, and specifically stated, ‘the sphere of women [included] comradeship with men in the rough and tumble of life and to being the fellow-workers of men in politics and other spheres’.103 At the heart of this argument was not a role-based model of political participation, where men and women brought their different forms of expertise to the framing of policies, but an affirmation of individual self-determination: the right for every person to choose their role and their sphere. This was necessarily inconsistent with any vision of culturally ordained, unchangeable separate spheres.104 More specifically, as Rajkumari Amrit Kaur argued at the time of the framing of the 1935 Government of India Act, the right to vote itself was based upon a ‘republican tradition going back to the Greeks that understood citizenship in terms of active participation in the life of the community’.105 This was a tradition that directly contradicted the separate-spheres approach to sex roles.
The vocabulary of Chaudharani’s argument was also replicated during the Second Round Table Conference in 1931, between the colonial government and Indian representatives. Here, representatives of the women’s movement insisted that they sought the vote not in the name of a specific constituency (of women), but ‘as a unit of humanity’, and therefore ‘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’.106 The linking of suffrage with non-discrimination is particularly significant, and in fact followed upon the famous Karachi Resolution of 1931, where the Indian National Congress had adopted a bill of rights that included both a right against sex discrimination, as well as a guarantee that ‘the franchise will be on the basis of universal adult suffrage’.107 Both the framing of suffrage as a fundamental right, as well as its universality, directly contradicted the social feminism basis for voting.108
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