26 May 2022 7:11 AM GMT
Here is the full text of Justice Ravindra Bhat delivered in an event organized by Beyond Law CLC Good evening: Justice Roshan Dalvi, Dr. Justice Vimala, Mr. Vikas Chatrath, organisers of this event, and all the participants joining us virtually for this webinar. I thank Beyond Law CLC for inviting me to speak on this topic, on the momentous occasion of the release of...
Good evening: Justice Roshan Dalvi, Dr. Justice Vimala, Mr. Vikas Chatrath, organisers of this event, and all the participants joining us virtually for this webinar. I thank Beyond Law CLC for inviting me to speak on this topic, on the momentous occasion of the release of Justice Dalvi's wonderful book. Having received an advance copy of 'Her Trials and Triumphs', I have to admit I am wholly enjoying reading Justice Dalvi's journey in this field and am grateful that she has taken the time to so comprehensively pen her learnings and reflections, for the benefit of others. Written in accessible and simple language, this comprehensive book promises to be a great resource not just for those who are interested in gender studies and related legal frameworks, but to those entirely uninitiated to the law as well. I congratulate her for this worthy contribution, and hope it will receive wide readership.
Since the topic is quite vast and requiring the level of nuance that a short webinar may not be sufficient to cover in – I wish to briefly address you on broadly three themes: firstly, special provisions under the Article 15 framework; secondly, the history of gender sensitization through legislative action; and thirdly, the limits or lack thereof, in contemplating the concept of gender within the constitutional text and language. In doing so, what will come through is the interminable impact or role of courts – for good or for worse - in shaping all three aspects.
I. Gender and the Constitution
Framework of Article 15 and affirmative action
In India, the general rule of non-discrimination as embodied in Art. 15 (1) and (2) prohibits discrimination on the basis of race, religion, caste, sex, or birth, and forms the content of the negative right. Arts. 15(3) and (4), on the other hand, permits special provisions – in the form of affirmative action or reservation, allowing the State to use
these attributes as indicators of backwardness or historical wrong; which in turn forms the content of the positive right. Protective discrimination or affirmative action can be characterised as overt action by the State to facilitate equal opportunity, participation and diversity that transcends historically and socially marginalised identities. To put it simply, Article 15 and 16 prohibits discriminatory treatment, but not preferential or special treatment of women (which is also in line with Article 10.3 of the Declaration of Elimination of Discrimination Against Women, 1967).
Often there is this dangerous misconception that special measures are discriminative in nature – increasingly, there is a need for greater sensitization against this notion. In fact, this court in Champakam Dorairajan1 had struck down a quota notification allotting certain percentage on the basis of caste, for admission to professional courses. This was rendered null by the First Amendment, wherein Jawaharlal Nehru, on the floor of parliament explained that "in trying to attain equality we come up against certain principles of equality laid down in the constitution. That is a very peculiar position. We cannot have equality because we cannot have non-discrimination, for, if you are thinking of raising those who are down, you are somehow affecting the status quo undoubtedly. You are thus said to be discriminating because you are affecting the status quo"2. While this was in the context of caste, it rings true even in relation to gender and sex.
We must bring to the masses the idea and understanding that substantive equality demands that we make special provisions, in furtherance of equality. Courts have routinely recognised that the special provisions contemplated in Article 15(3) and (4) are in fact a facet of Article 14 and required to bring about equality among unequals3. The judicial perspective or approach, therefore, would be to understand the importance of striking a just balance between the aspirational rights and the corresponding duty of the States to introduce affirmative measures combatting inequality on the one hand, and the principle of equality and its command against practicing inequality in proscribed areas – sex, caste, gender, religion, etc. being examples.
In the context of caste and class, affirmative action policies manifested as the quota or reservation model (for public education and employment) and remain largely limited to it. Special provisions, on the basis of gender, however, have been interpreted to include any special provisions that the State considers necessary in the interest of women.4 Thus, this has developed more robustly and holistically, through several legislations, some of which I will briefly discuss shortly. In interpreting Article 15(3), courts have also recognised that it does not operate in a vacuum, and often refer to Articles 39, 42 and other Directive Principles of State Policy, while examining such policies.
A. Reservations and constitutional quotas for women
In Government of Andhra Pradesh v. PB Vijaykumar5 the court even upheld job quotas for women in public employment on the reasoning that Article 15(3) is in fact, wider than Article 16(4), and such preferential quotas would fall within the ambit of 'special provisions'. It was noted that "insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of the country have been socially and economically handicapped. As a result, they are unable to participate in the socio- economic activity of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness and hence in a manner that would bring about effective equality between men and women, that Article 15(3) is placed in Article 15". Legislatively, however, reservations for women are limited – the main reason being that gender is not an identity attribute around which political mobilization happens, as it does along the lines of religion, caste, and region. The 73rd and 74th Amendment Acts which mandate quotas for women in panchayats6 and municipalities, respectively, demonstrate how reservations can help in redistributing power, through participation and representation, and have been upheld by the courts on past occasions. The Women's Reservation Bill7 (2008), which similarly mandated 33% reservations for women in the Lok Sabha and in State legislative assemblies (with a sub-quota for SC/ST women) was perhaps another step in this direction, but this bill has since lapsed.
B. Direct and indirect discrimination
The court's jurisprudence is replete with examples, relating to combatting direct and indirect discrimination, based on the equality doctrine of Articles 14 and 15. Many years ago, in C.B. Muthamma v. Union of India8, the supreme court recognized the unfairness and discrimination apparent in a service rule, which required a woman official of the Indian Foreign Service to secure permission before getting married, and armed the government with the power to terminate her services if it was "satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service". More recently in Secretary, Ministry of Defence v. Babita Puniya & Ors9 - this court noted the discriminatory nature within the Army, of limiting the status of women officers and offering differential or no retiral and other benefits, to them. The Central Government's policy in 2019 to offer permanent commission only to women officers who had served less than 14 years, citing physical limitations of older women officers was also held to be unacceptable, for violating their fundamental rights.
In another case - Anuj Garg v. Hotel Association of India10, the State Act and regulations prohibited employment of women in any part of premises in which liquor or intoxicating drugs were consumed; the court opined that such a restriction was violative of Article 15 as it resulted in a restriction to employment based on sex of the individual. Despite it being a case of direct discrimination, an impact-based approach was also employed and discussed extensively. Recently in another case - Hotel Priya11 which also relates to the regulation of dance bars, the court examined a seemingly neutral policy or regulation, which had a disproportionate impact on the female performers, and required the court to look through the intersectional lens – of class and gender. The rule limited the number of male and female performers in dance bars – which though equal in number – inordinately and arbitrarily restricted women's employment, as it is predominantly them, that work in these establishments.
As you can see, a lot of these cases arose in the context of public service, or employment as these interactions and differential power equations, are rife with such circumstances. The Sabrimala temple entry case12 offers a different illustration - while considering 'access' (and more particularly Article 15(2)) the Supreme Court has brought in an interpretation of Article 17 into this framework, making it more enforceable. It was held that the exclusion of menstruating women from religious places and practices on the justification that they are considered impure during that time, amounts to a form of discrimination akin to exclusion of oppressed castes as 'untouchable'.
II. Gender sensitisation – legislative history and development
Crimes against women
Empowered by Article 15(3) of the Constitution, the State has time and again – sometimes as a result of the court's prodding – made positive interventions in the form of policies and legislations, for the protection of women. The infamous Mathura rape case in 1972, consequent amendments to the law, and more recently the Nirbhaya case and resulting Criminal Law Amendments in 2013, have led to rapid development in punishment of crimes against women. From the famed Rupan Deol Bajaj case13 - where the court, in the absence of provision, read protection of women against sexual harassment into Section 354 (outraging the modesty of a woman) and Section 509 (word, gesture or act intended to insult a lady) of the IPC – we have certainly come a long way. The IPC now includes new offences which criminalises acts like acid attack, vouyerism, stalking, sexual harassment, etc. and amended definitions of existing offences, like rape. The Protection of Women from Domestic Violence Act 2005, is another example of the State taking requisite steps to provide a framework that prioritises protection of women. The provisions of this Act have been interpreted liberally over the last decade by courts, to expand the scope of protection to numerous domestic relationships.
In Vishakha v. State of Rajasthan14 - noting the lacuna in domestic law in 1997, the Supreme Court relying on Articles 42, 51-A(a) and (e), laid down guidelines and norms based on the CEDAW framework for the protection of women in workplaces and other institutions. This was in recognition of their fundamental rights under Article 14 and 15; their right to life under Article 21, which includes the right to live with dignity; and under Article 19, their right to practice any profession or to carry on any occupation, trade or business, which includes a right to a safe environment, free from sexual harassment. Pursuant to this judgement, almost 16 years later, the Legislature enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (commonly known as "POSH") to provide protection against sexual harassment of women. The term "workplace" under Section 2 (o) includes all "private sector organizations", i.e., in any organized or unorganized sectors, which courts - have routinely interpreted widely, so as to widen the protective scope of the Act, as is the case with interpretations of the DV Act.
Empowerment of women, or gendered minorities, relies heavily on their material and economic independence, as one of the pre-requisites. The bulk of the barriers faced by women while pursuing this economic independence is inequality in wages, and discrimination resulting from their biological role of childbearing, and the lack of safety and lower social position they often suffer, in our deeply and historically patriarchal society. The Legislature has found fit to enact beneficial legislations that address these concerns or vulnerabilities – the Maternity Benefit Act 1961, the Equal Remuneration Act 1976, and the Sexual Harassment of Women (Prevention, Prohibition and Redressal) at Workplace Act, 2013, are some examples.
The Equal Remuneration Act was preceded by the 1975 Ordinance which was promulgated in the year known as the International Women's Year, to give effect to the mandate under Article 39 of the Constitution. While applying the provisions of these Acts, courts have often relied on Article 1415 and 15, in addition to the DPSPs (Article
39 and 42), as the source of power and reasoning. For instance, in Mackinnon Mackenzie v. Audrey D'Costa16, the Supreme Court had held that paying a lesser wage to female stenographers (termed as 'confidential lady stenographers') was violative of the Act and resulted in sex discrimination. Equal wages and remuneration for the same work, or work of a similar nature and the prevention of discrimination of employment on the basis of gender, is now a guaranteed right, located squarely within the provisions of the Constitution, and the Equal Remuneration Act17. The Maternity Benefit Act too, traces its source to Article 42 of Part IV of the Constitution, which mandated the State to legislate on this subject. Now with a relatively progressive policy of leave on the occasion of pregnancy (or miscarriage), this Act guarantees that women receive their wages and remuneration during the period and penalizes dismissal on the ground of pregnancy. Given that women face acute bias, both direct and indirect, based on their reproductive ability, which sharply affects their career trajectories and consideration for progression, these safeguards help mitigate some of these concerns. The Factories Act contains other protections and obligations – such as creating and maintaining of a creche, provision for separate latrines, restriction of certain working hours, among others.
Implicit in these provisions or protections, is that the State acts as parens patriae, which is bona fide in the benefit for women. I urge you to critically examine and question this as well. Undoubtedly, in the past, given our temporal context in society, there was a need for the state to swoop in and 'protect' its citizens (here, being women), in the absence of their ability to do so. However, this has often manifested as a restriction imposed on women, rather than an improvement of the conditions that surround them. Consider, for instance – the restriction to working hours only during the 6 AM to 7 PM window, prescribed S. 66 of the Factories Act (state governments may vary this period but cannot include 10 PM to 5 AM), or the time-period of 6 AM to 7 PM as per the Beedi and Cigar (Conditions of Employment) Act, which predominately applies to women. Note that this is not a labour exploitation concern – of fixed number of working hours, but instead a fixation of the timings itself, for the benefit of women. This is quite obviously premised on protection for security and safety concerns, particular to women, but it is achieved by way of restricting opportunities for women (who for example, may ideally prefer night shifts, to balance their domestic roles), without placing the onus on the threat of violence and instead controlling it. Similarly, S. 22(2) of the Factories Act prohibits women or young persons from working on or near machinery in motion or the prohibition of women working in mines as per S. 46 of the Mines Act 1952 – both of these presuppose the physical capabilities of a woman and remove them from the ambit of the employment entirely. Such provisions remain on the statute book, and their relevance can strongly he debated given that society still remains largely unsafe for women; but I urge you to consider that rather than a paternalistic approach that imposes restrictions on women for their protection, we need to rethink our systems and work towards ensuring the conditions and environment they find themselves in, are controlled and safe, so as to enable them, instead. To put it simply: from a model of restriction, we need to progress to one of liberation, in the long run. This was recognised in the Anuj Garg case as well where the court noted the protection offered to women, was in fact victimising them and that "instead of putting curbs on women's freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf".
III. Courts locating developing conceptions of gender, within the constitution
Moving beyond the binary
The recognition of the possibility of men also being victims of gendered violence, is still conspicuously absent in Indian law – and requires nuance that is perhaps best left, for another occasion. The POCSO Act, which criminalises sexual acts against children, is the closest we have – to a gender-neutral understanding of such violence. I would also be remiss if I failed to acknowledge that my speech till this point has treated gender as a binary - which it certainly is not. Unfortunately, however, the history of development of gender in law – both by the legislature and courts, was limited to this restrictive conception, until more recently.
The identification of target groups for affirmative action has developed in the last two decades tremendously. Historical inequities play a significant role in the identification of target groups, but their role must be viewed contextually and contemporaneously. In
Ram Singh v. Union of India18, the Supreme Court has held that an affirmative action policy based solely on historical injustice would result in the "under protection of the most deserving class of citizens" and suggested consideration of such policies for the transgender community, as an example. The Court recognized that there exist new and constantly evolving groups of citizens, who may be the legitimate focus of an affirmative action policy and the State is obligated to identify such groups instead of only concentrating on enabling "groups of citizens to recover "lost ground" in claiming preference and benefits on the basis of historical prejudice". This builds on the NALSA19 judgment, which first legally recognised 'transgender persons' as the third gender – and provided a framework for their protection, access to resources, and enforcement of their fundamental rights. The framework contemplated in the judgment, is in fact wider in some senses, than the legislation that followed. The State of Karnataka, recently took heed of this and as a result of court proceedings (challenging a notification calling only 'men' and 'women' to apply for Special Reserve Constable Force), amended the Karnataka Civil Services (General Recruitment) Rules to provide a 1% horizontal reservation to transgender persons in government jobs, through direct recruitment.
Locating the right to dignity and the right to privacy, within the right to life under Article 21 (Puttuswamy20 and Navtej Johar21), has further entrenched decisional autonomy of not just women, but also sexual minorities and vulnerable communities. The understanding that gender is in fact characterised by social conditioning and is distinct from biological sex (which too is not binary), has been woefully slow, but not absent. Not only does it require sensitization and training, but also tremendous unlearning of our own conditioning and pre-conceptions; I will admit, I don't claim to have complete understanding of the nuances and language of these identities, and it remains a continuing education, much like for most others. In this context, an interesting illustration and recognition of this, comes from a recent case from the Madras HC wherein the court passed an expansive set of guidelines building on the spirit of this court's decisions in Navtej Johar and NALSA. The judgment22 banned the practice of "conversion therapy" that misleadingly claims to change the sexual orientation of queer people or the gender identity of transgender people and issued directions for the protection of the LGBTQIA+ community against discrimination, in the absence of legislation. But in arriving at these conclusions, the judge (Justice N Anand Venkatesh) has also expressly put on record his own pre-conceptions, and lack of understanding – which he remedied by seeking out psychologists and members of the community, to try and educate himself. He rightly states that "ignorance is no justification for normalising any form of discrimination" and his judgment focusses on acknowledging and 'unlearning' prejudices and stereotypes that we have, to create space for acceptance of the LGBTQIA+ community. The court goes on to explain that it is the legislature which has to take efforts towards "mainstreaming" the community, by taking forward the steps already initiated by the judiciary in NALSA and Navtej Johar.
One of the last topics I want to discuss, is in relation to enduring stereotypes, and the power language has, to both perpetuate them, and put a stop to it.
Stereotypes, Sensitising and Language
We must remember that even if women and men, theoretically have the same opportunities, the informal barriers apply to women – due to historic prejudice, and a general sense of disdain or indifference, towards bettering the situation for a group of persons who are traditionally treated poorly. This includes women being paid lesser, held back on the presumption of inferiority and a lack of ability to commit to the workplace (as "women are pre-occupied with their domestic familial roles"). Stereotypical and prejudicial understanding of women and their worth or capability, has an insidious past, which is not unique to India, though it may have its own special manifestations. As recently as 1975, a judge in the UK was prepared to find a solicitor negligent for taking advice from a wife when a husband was available, on the basis that a sensible wife would expect her husband to make a major decision23. While awareness, and reform in society, will have to be through state-driven efforts and people driven movements, what the judiciary can contribute to – is a conscious selection of language, which remains a powerful tool in breaking through stereotypes, and signalling a changed sense of what is 'acceptable' and what is not.
To achieve gender justice, it is critical that the judiciary avoid stereotypes and social biases to strengthen a judicial system that guarantees women access to fair and gender- sensitive judgments. In Aparna Bhat v. State of MP24, through reference to the Bangkok General Guidance for Judges, the supreme court was able to lay down detailed guidelines to combat stereotypes used in judicial pronouncements and directed gender- sensitive training to be undertaken for the bar, the bench, and in legal education at the undergraduate level. The language we use, must neither trivialise the pain of the survivor, nor condone the harm caused by the accused (thereby exposing the survivor to trauma, repeatedly) and for this we must, as lawyers and judges, strip our vocabulary and language of the misogynistic presumptions, prevailing in society.
On an overall view of the aspects I've discussed today – an overarching theme I want to draw your attention to, is that the Constitution has been employed in diverse fact scenarios, to offer protection of women, and gender or sexual minorities. The trilogy of Article 14, 15 and 21, offers a powerful tool for anti-discrimination, even in the absence of legislative protection – which is what the courts have more often, than not, recognised. Therefore, often case law is what has paved the way or led to drafting of some of these legislations. The principles of substantive equality, anti-discrimination, and autonomy, are inherent in the Constitution and can and must be used, to counter action that challenges these rights. I am confident, that in the absence of -for instance, the Equal Remuneration Act- the courts would have still been able to protect women against differential pay, based on their gender.
Fortunately, unlike in the US, where there is a vociferous debate and conflict between textualist and constitutionalist approaches, Indian constitutional interpretation has consistently enabled us, to treat the constitution as a living document, unfrozen in time. Therefore, even though the constitution framers may have only contemplated gender as a binary, the court was not limited by such a conception while recognising the fundamental rights of queer persons and transgender persons, within the provisions of the Constitution itself. This was possible due to the combination of Articles 14, 15 and 21, I spoke of earlier. Undoubtedly, the courts have not always got it right – like some parts of the Nargesh Mirza25 judgment, Suresh Koushal26 which was overruled in Navtej Johar, among others. are some examples. History may not judge these decisions of the court well, in fact it will judge them poorly; while others that I've spoken of may be celebrated – but overall, the evolving developments reflect loosely, if not exactly, the dynamic perspectives on gender in society - in which the courts have been intrinsically involved. I will conclude with something late Justice Ruth Bader Ginsburg also quoted in a speech, "As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we'll all be better off for it."27. Thank you.
1 State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.
2 Parliamentary Debates, Vol. XII-XIII, Part II, Col. 9617.
3 State of Kerala v. NM Thomas Ors., 1976 AIR 490
4 Yusuf v. State of Bombay, 1954 SCR 930.
5 Government of Andhra Pradesh v. PB Vijaykumar (1995) 4 SCC 520. In this case, AP State and Subordinate Service Rule (Rule 22-A(2)) provided that where women and men are equally situated, preference its to be given to women, "other things being equal" in selection for direct recruitment to an extent of at least 30% of certain specified posts. When challenged, the SC held that the same is an instance of affirmative action, protected by Article 15(3) and not violative of Article 16(2) and (3).
6 Upheld in K. Krishna Murthy (Dr.) & Others v. Union of India & Another, (2010) 7 SCC 202
7 Constitution (One hundred and eighth Amendment) Bill 2008
8 CB Muthamma v. Union of India, 1979 AIR 1868
9 (2020) 7 SCC 469
10 (2008) 3 SCC 1
11 Hotel Priya, A Proprietorship v. The State of Maharashtra & Ors., SLP (C) NO. 13764 OF 2012, dd. 18.02.2022 < https://main.sci.gov.in/supremecourt/2011/24758/24758_2011_46_1502_33528_Judgement_18-Feb-2022.pdf>
12 Indian Young Lawyers' Association v. State of Kerala, (2019) 11 SCC 1.
13 Rupan Deol Bajaj v. KPS Gill, (1995) SCC 6 194
14 AIR 1997 SC 3011
15 People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
16 (1987) 2 SCC 469.
17 Dharwad District PWD Literate Daily Wage Employee Association v. State of Karnataka, (1990) 3 SCC 396.
18 (2015) 4 SCC 697
19 NALSA v. Union of India, (2014) SCC 438.
20 Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors., (2017) 10 SCC 1
21 Navtej Singh Johar and Ors. vs. Union of India, AIR 2018 SC 4321
22 Madras HC - W.P.No.7284 of 2021, dd. 07.06.2021; Bharati SP, 'In historic order, Madras HC gives guidelines against discrimination of LGBTQI+ people' The News Minute (2021) <https://www.thenewsminute.com/article/historic- order-madras-hc-gives-guidelines-against-discrimination-lgbtqi-people-150236>.
23 Morris v. Duke-Cohen (1975) 119 Sol J 826
24 2021 SCC OnLine SC 230, decided on 18.03.2021.
25 Air India v. Nergesh Mirza, 1981 AIR 1829.
26 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1
27 Sandra Day O'Connor, Address to the 1990 Sixteenth Annual Olin Conference: Women in Power (Nov. 14, 1990), quoted by Justice Ruth Bader Ginsburg, in American Sociological Association Annual Meeting Montreal (Aug 11, 2006).