The Transformative Constitution

by Gautam Bhatia

  32. Nargesh Meerza, supra, ¶80.

  33. Ibid., ¶101.

  34. As the Canadian Supreme Court correctly explained in a pregnancy discrimination case, ‘an unfair disadvantage may result when the costs of an activity from which all of society benefits are placed upon a single group of persons’. See Brooks v. Canada Safeway, supra.

  35. For a more detailed argument about how pregnancy-based discrimination replicates the separate spheres theory, see Wendy Williams, ‘The Equality Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate’ (1985) 13 New York University Review of Law and Social Change, 325, 352–53.

  36. For judgements after Nargesh Meerza that have broadly followed this approach, see A.M. Shaila v. Chairman, Cochin Port Trust (1995) IILLJ 1193 (High Court of Kerala) (upholding the exclusion of women from employment as shed clerks on the basis of their ‘physical structure and special susceptibilities’, and ‘the need to protect them’); Leela v. State of Kerala, 204 (102) FLR 107 (‘the very nature of … [women’s] 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’).

  37. Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930.

  38. Article 15(3), Constitution of India.

  39. See also, Girdhar Gopal v. State, 1953 CriLJ 964 (MP), where the MP High Court upheld the constitutionality of Section 354 (‘outraging the modesty of woman’) by invoking ‘propriety, public morals, decency, decorum and rectitude’ as additional grounds that took the law outside the purview of Article 15(1). For a more recent judgement, see Ramesh Gajnan Rege v. Gauri Ramesh Rege, WP No. 10312/2014, where the Bombay High Court upheld a provision of the Hindu Marriage Act that obligated a father to maintain his unmarried daughters even after the age of majority, but not unmarried sons. Ratna Kapur and Brenda Cossman define this as the ‘protective approach’ to sex discrimination. Ratna Kapur and Brenda Cossman, ‘On Women, Equality and the Constitution: Through the Looking Glass of Feminism’ (1993) 1 National Law School Journal.

  40. Smt. Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618.

  41. Rani Raj Rajeshwari Devi v. State of UP, AIR 1954 All 608.

  42. Ibid., ¶73.

  43. Ibid., ¶96. See also Pritam Kaur v. State of PEPSU, AIR 1963 P&H 19, a somewhat similar case, endorsing the proposition that ‘a classification that the Constitution forbids cannot possibly be said to be reasonable’. And, Mrs A. Cracknell v. State of UP, AIR 1952 All 746.

  44. Radha Charan Patnaik v. State of Orissa, AIR 1969 Ori 237.

  45. Ibid., ¶17.

  46. Ibid.

  47. Ibid., ¶18.

  48. Walter Alfred Baid v. Union of India, AIR 1976 Del 302.

  49. Ibid., ¶10.

  50. A.N. Rajamma v. State of Kerala, W.A. No. 682 of 1982 (High Court of Kerala). See also Vijayamma v. State of Kerala (1978) IILLJ 323 Ker., decided four years earlier.

  51. Ibid., ¶14.

  52. Ibid., ¶1. Later, the High Court made the sharp observation that the basis of stereotypes was the fact that it was men who had the power to make rules: ‘If the work of say, a Duffadar, a Cleaner-cum-Conductor, Court Keeper, Chairman, Housekeeper or a Field Worker does not suit a woman or she would feel humiliated by such work it is for her to decide whether she should apply for the concerned job and not for the male dominated legislature or the male dominated bureaucratic machinery which may be functioning as a delegated legislative body to decide whether women should be permitted to do such work or not.’ Ibid.

  53. For judgements after Rajamma that endorsed this reasoning, see, e.g., Vasantha v. Union of India (2001) IILLJ 843 (High Court of Madras), striking down a provision of the Factories Act that prohibited evening work for women, and directing the State to take measures to ensure their safety; Triveni v. Union of India, 2002 (5) ALT 223, saying much the same thing.

  54. For an alternative typology, which overlaps with this one without being identical, see Kapur and Cossman, ‘On Women, Equality and the Constitution’, supra.

  55. Anuj Garg, supra, ¶46. The language is somewhat similar to that used by the High Court of Botswana a few years later which, in striking down discriminatory customary inheritance laws, observed that their effect was to ‘subject women to a status of perpetual minority, placing them automatically under the control of male heirs, simply by virtue of their sex’. Mmusi v. Presiding Officer, supra.

  56. Anuj Garg, supra, ¶47.

  57. Rajbala v. State of Haryana, (2016) 1 SCC 463.

  58. See, e.g., Bertha Wilson, ‘Women, the Family, and the Constitutional Protection of Privacy’ (1992) 17 Queen’s Law Journal 5, 13. For judgements dealing with facially neutral laws that were shown to have a disparate impact upon women, see, e.g., Zarb Adami v. Malta, 44 EHRR 3 (European Court of Human Rights) (jury service); for an excellent exposition of the argument, albeit ultimately rejected, see the judgement of the High Court of Zimbabwe in Madzara v. StanbicBank Zimbabwe Ltd (2015) ZWHHC 546; see also S v. Jordan (2002) 11 BCLR 1117 (Constitutional Court of South Africa), where the Court, over a dissenting opinion by Justices Sachs and O’Regan, rejected the argument that a penal provision treating a sex worker as a primary offender and a client as a secondary offender was gender discriminatory, because sex workers were overwhelmingly female.

  59. Rosalind O’Hanlon, A Comparison Between Women and Men: Tarabai Shinde and the Critique of Gender Relations in Colonial India 15 (Madras: Oxford University Press 1994).

  60. Anupama Rao, Gendered Citizenship: Historical and Conceptual Explorations (New Delhi: Orient BlackSwan 2013).

  61. Partha Chatterjee, ‘Colonialism, Nationalism and Colonised Women: The Contest in India’ (1989) 16(4) American Ethnologist 622, 624.

  62. Roy, Gendered Citizenship, supra, 74.

  63. Padma Anagol, The Emergence of Feminism in India 208 (London: Routledge 2006).

  64. Roy, Gendered Citizenship, supra, 116.

  65. Anagol, The Emergence of Feminism in India, supra, 116.

  66. M.K. Gandhi, ‘The Role of Woman’, cf. Reba Som, ‘Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?’ in Women and Social Reform in Modern India: A Reader 243 (Sumit Sarkar and Tanika Sarkar eds., Bloomington: Indiana University Press).

  67. Maitrayee Chaudhury, ‘The Indian Women’s Movement’ in Feminism in India 118–19 (Maitrayee Chaudhury ed., London: Zed Books 2005); an amendment to add ‘ideals of fatherhood’ in addition to ‘ideals of motherhood’ was rejected.

  68. Ibid., pp. 121–24.

  69. Bankim Chandra Chattopadhyay, Samya 55 (Bibek Debroy trans., New Delhi: Liberty Institute 2002).

  70. Ibid., Ch. 5.

  71. Ibid., 58.

  72. Tanika Sarkar, Hindu Wife, Hindu Nation 94 (Indiana University Press 2010), writing about the work of Ishwar Chandra Vidyasagar.

  73. ‘Letters from a Hindu Lady’, Times of India (1885), cf. Padma Anagol, ‘Rebellious Wives and Dysfunctional Marriages: Indian Women’s Discourses and Participation in the Debates over Restitution of Conjugal Rights and Child Marriage Controversy in the 1880s and 1890s’ in Women and Social Reform in Modern India, supra. A few decades later, B.R. Ambedkar would echo Rukhmabai’s language when he noted that ‘woman … has been an easy prey to all kinds of iniquitous injunctions, religious, social or economic. But man as a maker of injunctions is most often above them all.’ B.R. Ambedkar, ‘Castes in India: Their Mechanism, Genesis and Development’, (1917) XLI Indian Antiquary, available at http://www.columbia.edu/itc/mealac/pritchett/00ambedkar/txt_ambedkar_castes.html. There is also a striking similarity between her language and that of the 1848 Seneca Falls Declaration kickstarting the US suffrage movement, which noted that man has attempted to ‘destroy her [i.e., woman’s] confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life’.

  74. Rokeya Sakhawat Hossain, ‘Woman’s Downfall’ (Mohammad A. Quayum trans.), available at https://ziladoc.com/dow
nload/womens-downfall-rokeya-sakhawat-hossein_pdf (visited on 25 June 2018).

  75. Anagol, The Emergence of Feminism in India, supra, 30.

  76. Krupabai Satthianadhan, Miscellaneous Writings (Madras: Srinivasa Varadachariar & Co. 1896).

  77. Anagol, The Emergence of Feminism in India, supra, 44.

  78. ‘Maharashtrian women resorted to a rich vocabulary in the Marathi language to express ideas that are now considered feminist terms and enrich the Indian feminist lexicon with concepts and terms such as the following: bhaginvarg (sisterhood); strihak (women’s rights); strivarg (womankind or womanhood); strianubhav (women’s experience); bandhivasan (bondage); dasyatva (slavery); mokaleek (independence or freedom); strijati (female sex); purushjati (male sex); purusharth (manliness and masculinity). These phrases occur regularly in the colloquial and formal texts written by Maharashtrian women and the most significant of the magazines within the broader women’s press of the time, Arya Bhagini, literally uses the concept of bhagini (sisters) in its title—a telling sign of the times.’ Anagol, ‘Rebellious Wives and Dysfunctional Marriages’, supra, 427.

  79. V. Geetha, ‘Periyar, Women and an Ethic of Citizenship’ (1998) 33(17) Economic and Political Weekly WS9–WS15; S. Anandhi, ‘Women’s Question in the Dravidian Movement c. 1925–1948’ (1991) 19(5/6) Social Scientist 24.

  80. See Leela Kasturi, ‘Report of the Sub-Committee, Women’s Role in the Planned Economy, National Planning Committee Series (1947)’ in Feminism in India, supra, 136–55.

  81. Ibid., 139.

  82. Ibid., 144.

  83. Ibid., 149.

  84. Geraldine H. Forbes, ‘Votes for Women: The Demand for Women’s Franchise in India: 1917–1937’ in Symbols of Power: The Political Status of Women in India 3, 6 (Vina Mazumdar ed., Bombay: Allied Publishers 1979).

  85. Gail Pearson, ‘Reserved Seats—Women and the Vote in Bombay’ (1983) 20(1) The Indian Economic and Social History Review 47, 51.

  86. Forbes, ‘Votes for Women’, supra, p. 6.

  87. Cf. Roy, Gendered Citizenship, supra, 169. For an account of how this argument was consistently deployed by Sarojini Naidu, perhaps the most prominent woman in Indian public life, see Sumita Mukherjee, Indian Suffragettes: Female Identities and Transnational Networks (New Delhi: OUP 2018).

  88. Forbes, ‘Votes for Women’, supra, 5.

  89. Ibid., 8.

  90. Ibid., 7.

  91. For example, WIA representatives argued for the vote on the basis of women’s roles as mothers and educators; Rameshwari Nehru argued for it based on the need for women to control the environment of the home. Chaudhury, ‘The Indian Women’s Movement’, supra, 117, 125.

  92. Forbes, ‘Votes for Women’, supra, 9.

  93. Sarojini Naidu, Speeches and Writings (1925), cited in Roy, Gendered Citizenship, supra, 164.

  94. See, e.g., B.R. Ambedkar, The Annihilation of Caste, available at http://ccnmtl.columbia.edu/projects/mmt/ambedkar/web/readings/aoc_print_2004.pdf, visited on 26 August 2017.

  95. Wendy Singers, A Constituency Suitable for Ladies 25 (New Delhi: Oxford University Press 2007).

  96. The WIA had boycotted the Conference at the behest of the Congress. See Mukherjee, Indian Suffragettes, supra.

  97. Roy, Gendered Citizenship, supra, 163; they also made the argument that reservations were required for ‘real equality of opportunity in the political arena,’ Pearson, ‘Reserved Seats’, supra, 53; this, of course, is an entirely separate argument that, conspicuously, does not rely upon or endorse the separate spheres theory. In the Indian Franchise Committee’s Report of 1932, much of which was incorporated into the 1935 Government of India Act, both arguments—constituency representation and genuine equality of opportunity—were invoked to justify special representation. Indian Franchise Committee, Report of the Indian Franchise Committee, Volume 1, 78–87 (2nd ed., Calcutta: Government of India Central Publication Branch 1932), available at http://eci.nic.in/eci_main/eci_publications/books/miscell/Indian%20Franchise%20Committee-Vol-I.pdf, visited on 26 July 2017.

  98. Government of India Act, 1935.

  99. Forbes, ‘Votes for Women’, supra, 14.

  100. Aparna Basu, ‘Women’s Struggle for the Vote: 1917–1937’ (2008) 35(1) The Indian Historical Review 128, 130. The similarities with Abigail Adam’s famous ‘Remember the Ladies’ letter to John Adams are obvious.

  101. Mrinalini Sinha, Specters of Mother India: The Global Restructuring of an Empire 51 (Durham: Duke University Press 2006).

  102. Ibid., 132.

  103. Ibid. For other examples of resistance to the dominant cultural-nationalist argument during the debates over the Sarda Act, see ibid., 181.

  104. Ibid. In fact, it was in seconding this very resolution that Sarojini Naidu stressed on the ‘separate destinies’ of men and women, thus laying bare the schism at the heart of the women’s demand for the vote.

  105. Sinha, Specters of Mother India, supra, 222.

  106. Ibid., 223.

  107. Karachi Resolution of the Indian National Congress, 1931.

  108. As noted above, it is important to parse the language in which the argument for reservation and special representation was made. As Subbarayan and Shahnawaz did argue, special representation was required to achieve genuine parity and equality. This classic argument for affirmative action—framing it as a tool to overcome entrenched institutional barriers—does not, of course, rely on social feminism or separate spheres. In fact, it acknowledges the subordination created by the prevalence of theories such as separate spheres, and seeks to overcome it. As we have seen, however, to a large extent, the argument for special representation was made, and opposed, on the terrain of social feminism.

  109. Pearson, ‘Reserved Seats’, supra, 54.

  110. Ibid., 61.

  111. Chaudhury, ‘The Indian Women’s Movement’, supra, 127.

  112. Indian Franchise Committee, Report, Volume 1, supra, ¶216.

  113. Subbarayan, for example, went from advocating special representation to opposing it.

  114. Sarojini Naidu was the most prominent example. See, e.g., Pearson, ‘Reserved Seats’, supra, 49.

  115. See, e.g., ibid., 65; Mukherjee, Indian Suffragettes, supra.

  116. See, e.g., Sinha, Specters of Mother India, supra, Ch. 5.

  117. Anupama Roy highlights ‘the difficulty of weaving together a single thread of events or debates that can be labelled the suffrage debate or the suffrage movement’. Roy, Gendered Citizenship, supra, 127. This is also true for the broader feminist movement in colonial India. As Padma Anagol points out, many early feminists believed that the only route to progress was through a ‘strategy of accommodation’. Accordingly, they focused on countering opposition by arguing that female emancipation would not threaten domestic life. Anagol, The Emergence of Feminism in India, supra, 62, 81, 101.

  118. For instance, one of the main goals of the suffrage movement was an expansion of the women’s electorate, and principled positions often took a backseat towards achieving this goal. See, e.g., Sinha, Specters of Mother India, supra; Roy, Gendered Citizenship, supra. Additionally, for the tricky and often paradoxical positions some of the leaders of the women’s movement had to take because of the imperatives of staying on the side of the Congress-led nationalist movement, see, e.g., Geraldine Forbes, ‘Caged Tigers: First Wave Feminists in India’ (1982) 5(6) Women’s Studies International Forum 525, 534.

  119. For a similarly structured argument linking American sex equality jurisprudence with the suffrage movement, see Reva Siegel, ‘She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family’ (2002) 115(4) Harvard Law Review 947. See also Ellen DuBois, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1869 (Ithaca: Cornell University Press 1978); Ellen DuBois, ‘The Radicalism of the Woman Suffrage Movement: Towards a Reconstruction of Nineteenth Century Feminism’ (1976) 3 Feminist Studies 63; W. William Hodes, ‘Women and the Constitution: Some Legal
History and a New Approach to the Nineteenth Amendment’ (1971) 25 Rutgers Law Review 26. For a bibliography of the spectrum of arguments, see Gautam Bhatia, ‘Comprehensive Transformative Amendments: Theory and Practice’ (2015) 13 Dartmouth Law Journal 1.

  120. In the Constituent Assembly Debates, there was no extensive discussion on the prospect of separate electorates for women. The idea was comprehensively rejected by Renuka Ray (one of the few women in the Constituent Assembly). See Parliament of India, Constituent Assembly Debates – Volume IV, Friday, 18 July 1947 (speech of Renuka Ray), available at http://parliamentofindia.nic.in/ls/debates/vol4p5.htm. For a broader discussion, see Shefali Jha, ‘Rights versus Representation: Defending Minority Interests in the Constituent Assembly’ (2003) 38(16) Economic and Political Weekly 1579–83.

  121. For the link between the two, and the proposition that the 1931 Resolution advocated ‘complete equality’, see the statements of Ilina Sen, ‘Women’s Politics in India’ in Feminism in India supra, 187, 190.

  122. Article 326, Constitution of India. An additional amendment, specifying that nobody could be excluded from electoral rolls on the grounds of religion, race, caste, or sex was initially incorporated into the Constitution, but ultimately removed on grounds of redundancy. Parliament of India, Constituent Assembly Debates, Vol. VIII, 16 June 1949.

  123. For example, in responding to a demand for women’s representation in the Constituent Assembly, H.V. Kamath argued that ‘woman is ruled more by the heart … and where the affairs of Government are concerned, we have to be cold and calculating’. Parliament of India, Constituent Assembly Debates, Vol. X, 11 October 1949 (Speech of H.V. Kamath).

  124. Article 39(e), Constitution of India.

  125. Parliament of India, Constituent Assembly Debates, Vol. VII, Monday, 22 September 1948 (speech of H.V. Kamath).

  126. Ibid. (speech of Lakshminarayan Sahu).

  127. Article 15(1), Constitution of India.