“The time has, therefore, come for the Court to affirmatively emphasize that it is not open to the State, if it has to act in conformity with the fundamental principles of equality which are embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of the reservation, which is made available to a son irrespective of his marital status.”
"Freedom fighters fought for the nation and we celebrate the Independence Day to remember them and their selfless sacrifice. Although we have got freedom from our colonial masters, we are yet fighting for getting freedom from many ‘discriminations’, predominantly discrimination based on gender".
The Himachal Pradesh High Court, on the eve of Independence Day, pronounced a landmark judgment quashing a ‘gender discriminatory’ decades-long policy of the state government of depriving the benefit of reservation in government jobs to the wards of freedom fighters to married daughters/grand-daughters.
The division bench of Acting Chief Justice Sanjay Karol and Justice Sandeep Sharma held that the state shall not discriminate against married daughters by depriving them of the benefit of the reservation, which is made available to a son irrespective of his marital status.
In 1984, the state government decided to provide 2% reservation in services to the children/grandchildren of freedom fighters belonging to the state in direct recruitment to all services/posts. As per the scheme, the benefit of reservation would be applicable in respect of sons/grandsons, daughters/ granddaughters of freedom fighters. The employed children/grandchildren and married daughters/ granddaughters of freedom fighters were excluded from the scheme.
Letters turned suo motu writ petition
The high court had registered suo motu writ petition after receiving letters from Rekha Sharma and Geeta Sharma, daughters of the late Shri Het Ram Sharma, a freedom fighter, in which they brought to the notice of the court about the discriminatory policy of the state government. Advocate Deven Khanna was appointed as amicus curiae to assist the court. The bench framed these issues:
The state’s justification
The state’s justification, in this issue, was that with the solemnization of marriage, daughter severs her relationship with her parental family, for she gets “transplanted” into the family of her husband, and as such, cannot claim herself to be part of a family of a freedom fighter. The state also told the court that ‘after marriage, a married woman loses the status of being a member of parent’s family though married daughter/granddaughters after marriage do not lose status of member of undivided family of her father for the purpose of property’.
Predominant mindset of male chauvinism is all-pervading
The bench headed by Acting Chief Justice Sanjay Karol terming this stand adopted by the state as ‘absolutely archaic and disappointing’, remarked: “It is certainly not in tune with the changing times. In fact, it is out of sync with the constitutional values and principles. The predominant mindset of male chauvinism is all-pervading.”
The bench also observed that the primary object and purpose of the Policy is not to confer benefits only on the male members of the freedom fighters but to acknowledge the sacrifices made by the freedom fighters, by giving employment to their wards. The bench also observed that as per the policy ‘Sons and grandsons of freedom fighters are eligible to be considered for the quota under the category “Wards of Freedom Fighters” even though married, but not the married daughters and granddaughters’.
The court also referred to judgments of the Supreme Court and various high courts to hold that marriage does not have and should not have a proximate nexus with the identity of a woman, and this identity as a woman continues to subsist even after and notwithstanding her marital status.
Holding that daughters and granddaughters, even if married, would be eligible for public employment, the bench said: “We hold that the Policy of the State, confining benefits to the unmarried daughter alone, unlike married son, is not in line with the object, which is sought to be achieved by conferring benefit of reservation, horizontal in nature, to the wards of Freedom Fighters. The object is to acknowledge the sacrifices made by the Freedom Fighters, by providing benefit to their wards. It is not to perpetuate the lineage of legacy only through a male descendent. The object also cannot be to perpetuate discrimination on the basis of sex.”
The Acting Chief Justice remarked: “The time has, therefore, come for the Court to affirmatively emphasize that it is not open to the State, if it has to act in conformity with the fundamental principles of equality which are embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of the reservation, which is made available to a son irrespective of his marital status.”