Furthermore, in a memorandum after the Second Round Table Conference, the WIA opposed British plans to introduce a ‘wifehood qualification’ (i.e., extending the franchise to wives or widows who met either a property or an educational qualification), called for universal adult franchise, and agreed to countenance reservations only as a ‘transitional measure’ until the broader legal structure was made more equal—including, crucially, laws of inheritance and laws of marriage.109 That the link between universal suffrage and equality was drawn explicitly and would continue to be drawn through the course of the suffrage movement110 is crucial. This is because, if the demand for universal suffrage, as a question of right, represented a repudiation of the separate-spheres theory, it followed that it also repudiated any vision of equality and non-discrimination that continued to have, at its base, any form of that theory. And equally crucial was the opposition to the wifehood qualification:111 the social feminist justification for the vote relied upon women’s role within the private sphere, which, invariably, was a role they played in their capacity as wives or as mothers. In fact, the Franchise Committee, in its 1932 report that recommended the wifehood qualification, made exactly this argument:
We recognise that the principle of enfranchising a woman on her husband’s qualification did not find favour with the representatives of some women’s organisations and others who gave evidence before us, on the grounds that it would perpetuate the idea of the dependency of the women on the men … we think, however … that marriage gives a community of interest, and that in it a woman enters into a partnership with her husband which may well confer civic rights as well as domestic duties.112
A wifehood qualification, therefore, was entirely in line with social feminism, and express opposition to it, at least implicitly, reflected some measure of repudiation of the separate-spheres theory.
In terms of history, this is obviously a simplified account. Some of the participants in the women’s franchise movement changed their own views over the course of time;113 others rejected separate electorates while affirming social feminism;114 still others framed their arguments against special electorates from a purely pragmatic perspective, unwilling to put forward points of view that might have jeopardized the nationalist movement’s campaign for political independence;115 and finally, the issue of women’s right to vote often intersected with religious community-based separate electorates.116 This is hardly surprising. Social movements have always been ideologically riven, messy, and diverse, with different and even self-contradictory goals jostling for space within the overall structure.117 They are also often intensely pragmatic, with participants concerned primarily about achieving their goals, and not about intellectual consistency.118 My aim, therefore, is not to parcel the franchise movement into two cleanly opposed camps, but to identify the conflicting ideas that were at its base, and then to ask which of these ideas are represented in the Indian Constitution.119
We must begin by noting that the Indian Constitution both repudiated the concept of separate electorates, as well as enshrined voting as a right.120 Article 326 of the Constitution (taking on from the 1931 Karachi Resolution121) states:
The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage …122
As the discussion above illustrates, framing suffrage as a right is entirely inconsistent with the separate-spheres theory. Of course, it is not my claim that the framers of the Constitution were consciously and deliberately rejecting the separate-spheres theory. Just as many of the women who argued for universal franchise also supported separate spheres, there is evidence that many of the framers were in agreement with that viewpoint.123 It is my claim, however, that in the historical context of the two opposed intellectual traditions that demanded the vote for women, the text of the Constitution (in granting the vote as a right that was delinked from status and delinked from community) was simply irreconcilable with the separate-spheres theory and broadly consistent with its repudiation. The reasons for that—from separate electorates to the wifehood qualification—have been discussed above.
However, once it is accepted that the Constitution’s voting provisions repudiate separate spheres, it must necessarily follow that separate spheres can no longer be a valid interpretive approach towards the justification of any kind of discrimination between men and women. A Constitution, a document laying down political principles, cannot repudiate separate spheres when it comes to voting, while endorsing it as an underlying basis, or justification, for other forms of legislative classification that are challenged under Article 15(1). This is the lesson of the contested history of the Indian women’s suffrage movement, its clear link with the issue of sex equality, and its culmination in the final text of the Indian Constitution.
Lastly, this argument is buttressed by two other structural features of the Constitution. The first is found in an unlikely place. Article 39(e) of the Constitution—part of the Directive Principles of State Policy—commands the State to ensure that ‘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’.124 In the Constituent Assembly, three specific amendments to add the word ‘sex’ after ‘age’ and ‘strength’ were moved. One was withdrawn for lack of support, and two were voted down by the Assembly. In fact, H.V. Kamath, the mover of one of the amendments, specifically stated that what he had in mind was to save women from having to take up ‘occupations which may not be suitable to the conditions imposed on them by nature’.125 He withdrew. Lakshminarayan Sahu, another of the movers, stated that ‘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’.126 His amendment was rejected by the Assembly. Both Kamath and Sahu invoked variants of the separate-spheres theory to justify the addition of the word sex to the clause. Both failed. And while it is always a perilous enterprise to read too much into the failure of an amendment that is rejected through a straight yes-or-no vote, the final text of Article 39(e), what it omits, and the history of that omission, goes at least some way towards supporting a constitutional rejection of the separate-spheres theory.
The second structural feature may be located in a more straightforward place: a closer reading of Article 15(1) itself. Recall that that article reads, in full:
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.127
Article 15(1), therefore, lists five grounds: religion, race, caste, sex, and place of birth. It is also a ‘closed list’ of grounds, i.e., a law can be challenged under Article 15(1) only on one of these five grounds, and no others. If we take a close look at the four other grounds, viz., religion, race, caste, and place of birth, it is immediately obvious that for any of them, an argument justifying legislative differentiation by invoking ‘natural’ or ‘inherent’ differences would not only sound discordant but positively contradictory. Across the world, racial and religious discrimination has existed by attributing certain ‘natural’ characteristics that define or typify racial and religious groups, and then by invoking those characteristics to justify discrimination.128 In India, more specifically, that tactic has been used to justify discrimination based on caste or place of origin.
Words and phrases in the Constitution cannot be studied in isolation. They must be interpreted as complementary parts of a holistic document, a document laying down a set of political and social principles. The framers’ conscious and deliberate choice to place the word ‘sex’ in the company of ‘religion’, ‘race’, ‘caste’, and ‘place of birth’, within a broader guarantee against discrimination, suggests a comprehensive rejection of a long tradition of thought that justified discrimination by invoking natural differences, whether between races, castes, or se
xes. Any other interpretation would leave sex as the odd word out, the only word out of five still in thrall to the ‘natural differences’ school of thought. That might still be a correct interpretation if there was none other available.129 What I have attempted to show, however, is that political history, the Constitution’s structure, and the text of Article 15(1) together make an unanswerable case for a transformative understanding of the constitutional vision of gender equality.
V. Anuj Garg and the Future of Transformative Constitutionalism
The transformative vision of Anuj Garg represented another step forward along a long path that had been waymarked over many decades. Bankim’s Samya, the objections of the suffragists to the wifehood qualification, the 1939 Congress Document, the deliberations of the Constituent Assembly, and the judgements of various high courts in the years after Independence, all represented an evolving tradition of thinking about gender and equality. And it was this tradition that culminated in Anuj Garg, with the acknowledgement that the constitutionality of discriminatory laws must be tested by their systemic and institutional effects rather than by their intentions.
As we have seen, however, throughout history, the transformative tradition has had to contend with another, more conservative, approach to gender and equality, an approach rooted in the separate-spheres understanding of sex roles, and which draws upon an entirely different reading of Article 15(1) of the Constitution. And so, even today, the statute books are littered with gender-discriminatory provisions. These cover a range of issues—civil procedure, criminal law, family law (spanning divorce, succession, and maintenance), property law, tax law, and employment law. Particularly blatant examples include inheritance laws (across all religions), ‘limited polygamy’ in Goa,130 and, absurdly, the barring of women from open prisons.131 They even include provisions that ostensibly benefit women, but are motivated by exactly the same kind of stereotypical reasoning that is antithetical to the transformative vision of equality. These provisions have survived challenge and continue to hold the field today.132
Anuj Garg provides us with the judicial and constitutional template to rethink such laws, and review the decisions that have upheld their constitutionality on the basis of a formal reading of Article 15(1). In its synthesis of precedents into one coherent transformative vision of equality, moreover, it opens up a new space for further argumentation. For example, in the summer of 2017, there were strong protests against the government’s decision to tax sanitary pads at a high rate.133 Under the formal approach to sex discrimination, this would present no constitutional problems: sanitary pads are used only by a percentage of menstruating women, so it is not discrimination on grounds only of sex; the objective is to raise revenue, so it is not discrimination on grounds only of sex; it is a tax on sanitary pads, not on women, and so it is not discrimination on grounds only of sex; and lastly, there is no equivalent tax that men are exempted from, and therefore it is not discrimination on grounds only of sex.
The transformative approach, however, would have something very different to say. It would begin by noting the well-documented social, cultural, and economic roles played by perceptions of menstruation in upholding (unequal) gender roles in society, as well as the physiological effects of menstruation upon women’s participation in the workplace on equal terms with men. It would argue that taxation regimes, being systems of financial incentives and disincentives, are among the State’s foremost vehicles to shape patterns and ways of life. And it would then argue that the State’s decision to legislatively burden an activity (menstruation) that, when juxtaposed with social and cultural norms, has placed significant barriers to women’s participation in the public sphere on equal terms with men, is an ‘invidious discrimination perpetuating sexual differences’.134
That, however, is far in the future. For now, it is the conflict that remains. Although it is rare to see express judicial endorsements of the separate-spheres theory any more, courts still apply the formal reading, without noticing that gender stereotypes continue to exist as undercurrents beneath formally ‘neutral’ or benign legislative classifications. Consequently, the formal and transformative approaches to gender equality continue to coexist in an uneasy tension, even after Anuj Garg. For example, in October 2016 a division bench of the Bombay High Court rejected a constitutional challenge to Section 56 of the Code of Civil Procedure, which states, ‘the court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money’135 on the basis of Article 15(3).136 The Court advanced no argument, however, that would illuminate the purpose of Section 56, or the basis for the ‘special provision’; in fact, it relied upon Yusuf Abdul Aziz—the Supreme Court’s six-decade-old adultery judgement—to hold that once a ‘special provision’ existed, there was no need for any further judicial analysis. Had it done so, it might have found that it was impossible to defend Section 56 on any grounds other than the very stereotypes about men and women that Anuj Garg had categorically rejected.
In contrast, a year before this, the Delhi High Court was asked to rule upon the denial of seniority in promotion to a female inspector by the Central Reserve Police Force (CRPF). The inspector had missed a ‘Pre-Promotional Course’ because of a pregnancy (she later attended and completed it), and this was deemed to be evidence of her ‘unwillingness to attend’. The Court noted:
Unlike plain unwillingness on the part of an officer to undertake the course … the choice exercised by a female employee to become a parent stands on an entirely different footing … A seemingly ‘neutral’ reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.137
In holding that pregnancy-based burdens violated the guarantee against sex discrimination, Justice Ravindra Bhat of the Delhi High Court built upon the foundations laid in Anuj Garg (which itself had only been dealing with formal sex-based discrimination). But what was more important was how he did that. In observing that ‘a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights’, the Court acknowledged that the discrimination occurs not through the individual hostile acts of legislators, but through seemingly neutral norms that end up reproducing existing social inequalities and hierarchies.138
In fact, the placement of ‘neutral’ within quotes was particularly interesting, because, in effect, the Court pointed out that our intuitive ideas about the existing baseline, the ‘normal’ from which we judge deviations, is a political and social construct. Or, in other words, the ‘neutral’ is constructed from the perspective of a privileged subject position. In the context of the case, the baseline was that of the ‘normal’ worker who, being male, was not expected to become pregnant. Consequently, the baseline rules (penalization for ‘unwillingness’ to attend the promotional course) were construed from his perspective.139
Thus, by de-mythologizing ‘normalcy’, the Delhi High Court recalled, in constitutional language, Bankim’s original argument: entrenched power structures, which, over decades and even centuries of sedimentation, have attained the status of facts of nature, should no longer be treated as immutable in the very existence of things, but as human-caused instances of injustice. The point of a Constitution was to actively dismantle this appearance of immutability. And in doing so, the Court demonstrated what Anuj Garg’s transformative jurisprudence of gender equality might look like in practice.
The judgements of the Bombay and the Delhi High Courts reveal that the meanings of Article 15(1) and of gender equality under the Constitution remain contested battlegrounds. In this chapter, I have advanced a transformative reading of this austere constitutional guarantee, grounded in a dissident political tradition that, nonetheless, provides us with a more plausible way to understand and interpret the Constitution’s text and structure. To sum up, this reading, flowing from the text of Art
icle 15(1), is three-pronged. First, the constitutionality of potentially discriminatory legislation is to be tested by its effects, especially by placing its effects in the context of existing institutions and social rules that skew a perceived ‘normal baseline’ against women (or specific groups of women, such as workers, or pregnant women). Second, discrimination cannot be justified by invoking natural differences, or immutable, gendered social rules. Formally neutral provisions that have the effect of disadvantaging women should be closely scrutinized for whether, underlying the formulation of the law, there is a continuing presence of the separate-spheres vision of society. And third, ‘special provisions’ under Article 15(3) can be justified only if they bear some connection with the underlying bases of Article 15(1).140 In particular, ‘special provisions’ that simply perpetuate precisely the kinds of stereotypes and role conceptions Article 15(1) was designed to eliminate cannot stand the test of constitutional scrutiny. This approach, I have argued, is what I consider to be faithful to the Constitution’s transformative purpose.
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Postscript—The Adultery Judgement
On 27 September 2018, in Joseph Shine v. Union of India, a Constitution Bench of the Supreme Court unanimously overruled Yusuf Abdul Aziz and struck down the adultery provision as unconstitutional.141 Some of the concurring judgements made explicit reference to the anti-stereotyping analysis. For instance, Justice Chandrachud observed, ‘It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life’.142 On similar lines, Justice Malhotra observed that as the logic of the adultery provision was based on treating the wife as the property of the husband, it could no longer stand scrutiny under Article 14.143 She also endorsed the interpretation of Article 15(3) that has been advanced in this chapter, namely, ‘the true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”’.144
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