I don’t say women’s rights, I say the Constitutional principle of the equal citizenship stature of men and women – Ruth Bader Ginsburg (Associate Justice of the Supreme Court of U.S.A). Indian has been regarded as one of the world’s most unequal to gender issues. This is especially true for women, who are relegated to subservient status and subjected to a variety of societal problems such as infanticide, foeticide, child marriage and gender prejudices in the rights of coparcenary property etc. our country has been unable to free itself from the shackles of social practices and traditions, even in the 21st century, when the entire glob has awakened feminism’s appeal. In a kin-ordered social structure, India remains the most important component of the patriarchal belt of the world, where women are still considering inferior to men. The framers of the constitution believed that Indian women should be treated equally and that the state should protect their rights and hence they included certain provisions to protect Women’s interest and to achieve gender justice.
However notwithstanding formal guarantees of equality, Indian women’s lives continue to be characterized by pervasive discrimination and substantive inequality. By examining the judicial interpretations of Indian constitutional law it will illustrate that how the legal system itself contributes to the gap between the formal guarantees of gender quality and the substantive inequality which plagues women’s lives. With some notable exceptions, the judicial approach to the equality guarantees of the constitution is informed by a problematic approach to both equality and Gender difference. Evaluation of the two competing models of equality which is Formal versus substantive equality shows that to what extent Indian constitutional law is informed by a formal model of equality and how attempts at moving towards more substantive understanding have been thwarted by the deeply embedded assumptions regarding equality as formal equality.
Formal versus Substantive Equality:
Equality is thus a process — a process of constant and flexible examination, of vigilant introspection and of aggressive open-mindedness. Much of the academic writing examining the equality guarantee in the early days of the debates over the meaning of equality as largely a debate between Formal and Substantive equality.
Equality rights are formally guaranteed in Article 14, 15 and 16 of the Indian Constitution. But the constitution tell us very little about specific content of equality rights. The general principle of equality and non-discrimination in nowhere defined in the constitution. The understanding of equality that has dominated western thought since the time of Aristotle has been one of formal equality. Equality has been interpreted as ‘treating likes alike’, its constitutional expression in American and Indian equal protection doctrine as the requirement that ‘those’ similarly situated be treated similarly. Within this prevailing conception, the Equality is equated with sameness. Indeed, sameness is the entitling criteria for equality. If you are the same are you entitled to be treated equally. Within this equal treatment approach any difference in treatment between similarly situated individuals constitutes discrimination. So if you are the same then you should not be treated differently.
Only individuals who are same are entitled to be treated equally that is all persons are to be treated alike, except where circumstances require different treatment. If the individuals or groups in question are seen as different then no further analysis is required even if the differences among them are the product of historic or systematic discrimination and difference justifies the differential treatment. As Brodsky and Day have argued in the context of equality under the Canadian Charter, “the way the court defines a class, or its willingness to recognize a class can make the difference between winning and losing. The court can justify making a comparison between classes or refusing to make a comparison by the way they define the class or whether they recognize it at all. When a groups are not similarly situated, then they do not qualify for equality even if the differences among them are product of historic or systematic discrimination. While in exploring the problematic connection between equality and sameness, Martha Minnow has observed that the problem with this concept of equality is that it makes the recognition of differences a threat to the premise behind equality.
In contrast of Formal equality, the Substantive model of equality begins with the recognition that equality sometimes requires that Individuals be treated differently and its emphasis on sameness. Martha Minow, while exploring the problematic connection between equality and sameness has observed:
“The problem with this concept of equality is that it makes the recognition of difference a threat to the premise behind equality. If to be equal you must be the same, then to be different is to be unequal”.
Indian Constitutional law has been overwhelmingly informed by a formal approach to equality. Article 14 guarantees equality before the law and equal protection under the law. Even the Supreme Court of India held that the equality guarantees do not require that the law treat all individuals the same but rather, that any classifications made between individuals be reasonable. According to the Supreme Court, the classification must meet two condition in order to be found reasonable.
1) …The classification must be founded on an intelligible differentiation which distinguishes persons or things that are grouped together from others left out of the group
2)…that differentia must have a rational relating to the object sought to be achieved by the statute in question. (Budhan Choudhry v State of Bihar, AIR 1955 191, Verdict on Constitutional validity)
However, according to the doctrine of reasonable classification, only those individuals who are similarly situated must be treated the same in law (R.K Dalmia v Justice S.R Tendolkar, 1958). Within this doctrine, equality does not require that all individuals are treated the same, but only those individuals who are the same. Thus equality is equated with sameness and sameness is the prerequisite for equality.
The concept of substantive equality moves beyond formal equality to acknowledge past discrimination and the political, social, and economic barriers women face in accessing opportunities, exercising their rights and making decisions that impact on their lives. It also recognize the differences between women and men due to women’s potential reproductive capacity. Substantive equality also encompasses positive programs to ameliorate disadvantage. It hence entails “Positive rights”, as opposed to “Negative rights”. Negative rights are, essentially freedoms from interference or intrusion which constrain government and prohibiting and prohibiting the exercise of governmental power. while positive rights are rights which can be asserted against the government. Substantive equality aims for equal access to opportunities and equality of outcomes and is thus a more comprehensive notion of equality. When a group does not experience substantive equality, equal treatment does not necessarily result in similar outcomes, because that group is already starting from a position of inequality and therefore is not able to access or take advantage of opportunities in the same way. For example, the University may treat female and male applicants equally and have the same set of admission standards but if girls have more limited opportunities to attend primary and secondary school than boys, female applications will be in a disadvantage position when they apply to university and will probably not be accepted at the same rate as male applicants.
So in addition to aforementioned example, equal treatment actually harm women and further contribute to their inequality. If women are not able to attend university at the same rate as men, then they may not be able to secure stable employment and making them vulnerable to poverty and to worse health and social outcomes. Women are frequently in an unequal position relative to men in political, economic and social life due to a number of factors related to direct and indirect discrimination. These includes conscious and unconscious bias and stereotyping about women’s roles, abilities and responsibilities; structural disadvantage in the form of discriminatory laws, policies, programmes and their administration. Substantive equality recognizes the gender and sex differences between women and men and seeks to expand rather than limit opportunities and choice for women in the context of these differences. Examples include the prohibition of discrimination against pregnant women and the provision of maternity leave.
The focus of substantive equality approach is not simply on equal treatment under the law but rather on the actual impact of the law. The explicit objective of the Substantive equality is the elimination of the substantive inequality of disadvantaged groups in society. The focus of the analysis is not with sameness or difference, but rather with disadvantage. It is directed at eliminating individual, institutional and systematic discrimination against disadvantaged groups which effectively undermines their full and equal social, political and economic cultural participation in society.
The Shift in focus from sameness and difference to disadvantage significantly broadens equality analysis. For instance, within a formal equality model, the difference between persons with physical disabilities and persons without disabilities could preclude an equality challenge. Because disabled person are different but on whether their treatment in law contributes to their historic and systematic disadvantage. Indeed, differences are not seen to preclude an entitlement to equality but rather are embraced within the concept of equality. Within this model of equality, the differential treatment may be required ‘not to perpetuate the existing inequalities but to achieve and maintain a real state of effective equality.
Judicial Approaches to Equality Rights in India:
Article 14:
“The shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”
Article 14 of the Indian constitution guarantees equality before the law and equal protection under the law and it has been interpreted as a prohibition against unreasonable classification. To determine that whether Article 14 has been violated is a consideration of whether the person between who discrimination is alleged fall within the same class. If the persons are not deemed to be similarly circumstanced, then no further consideration is required.
The principle adopted by the Supreme Court are premised on a formal model of equality. The focus of the analysis is on the question of sameness, on determining whether the persons among whom the denial of equality is alleged are the same or whether the classification is based on reasonable differences. (D.K Basu v State of West Bengal 1997).
2) Article 15:
15 (1) “The state shall not ‘discriminate’ against any citizen on grounds ‘ONLY’ of religion, race, caste, sex, and place of birth or any of them”.
15(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
15(3) Nothing in this article shall prevent the State from making any special provision for women and children
15(4) nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.( https://legislative.gov.in/constitution-of-india)
A. Discrimination:
The debate have arisen in the case law pertaining the meaning of the word discrimination within Article 15. This concerns the judicial interpretations of the treatment authorized by Article 15(3). This article which allows the state to make special provisions for Women has been interpreted as authorizing the state to discriminate in favour of women. However, the question is whether Article 15(3) permits discrimination against women. In Mahadeb jiew v B.B Sen, the Calcutta High Court ruled that Article 15(3) could not be used to authorize discrimination against women but rather from the language used in the Article, it was clear that the intention of the framers of the Constitution was to protect the interests of women and children [6]. Hence Article 15(3) has limited to upholding legislation that benefits women not extended to authorizing discrimination against women.
This question of treatment permits by Article 15(3) is related to deeper question of the meaning of discrimination within Article 15. There are two approaches which can be identified in the case law:
1. Discrimination means any classification or distinction on the prohibited grounds. (Based on Formal understanding of equality as Sameness)
2. Discrimination means an adverse distinction on the prohibited grounds that is distinctions that disadvantage. (Based on Substantive understanding of equality).
B. Relationship Between Articles 15(1) and 15(3):
The main problem which have arisen with regard to Article 15 is the relationship of clauses (1) and (2) with clauses (3) and (4). There are two approaches to this relationship have emerged in judicial decision making which is ‘Exception approach’ and ‘Holistic approach’. In the first approach, Articles 15(3) and 15(4) are interpreted as exceptions to the general equality guarantees. A statement of this ‘exception approach’ is found in the case of Anjali Roy v State of W.B (1952). While in the second approach, Article 15 is seen as a whole and therefore Article 15(3) and 15(4) are used to interpret the equality provisions generally and this holistic approach was endorsed in Vadilal Panchal v Dattatraya Dulajin (1960).
These two competing approaches to the relationship between the clauses of Article 15 roughly correspond to the two competing models of equality. In the first ‘exception approach’ equality is equated with sameness and in the second ‘holistic approach’ equality is understood as sometimes requiring that individuals be treated differently.
C) On the Grounds only of SEX:
Article 15(1) prohibits discrimination on the grounds only of religion, race, caste, sex, and place of birth or any of them. It has been interpreted as requiring discrimination ‘only’ on the prohibited grounds. As the court ruled in the Anjali Roy v State of W.B…
“The discrimination which is forbidden is only such discrimination as is based solely on the ground that a person belongs to a particular race or caste or professes a particular religion or was born at a particular place or is of a particular sex and on no other ground. A discrimination based on one or more of these grounds and also on the other grounds is not hit by the Article” (Supra note 19, at 829 para).
So if discrimination is found to exist on grounds other than those enumerated, then there is no violation of Article 15(1). Even discrimination on the basis of sex, coupled with discrimination on other non-enumerated grounds, would not constitute a violation.
The intention of the Courts in their inquiry into ‘on the ground only of sex is laudable. They can in some respects be seen to be pursuing a more substantive vision of equality that is one which is concerned with promoting the social, economic and political equality of women. The courts do not strike down legislation designed to benefit women by calling it discrimination on the basis of sex. But their focus on the technical meaning of ‘only on the ground of sex’ obscures this normative vision of equality.
The Delhi High Court in Walter Alfred Baid v Union of India (1976) while dealing with a challenge under Article 16(2), recognize some of the problems implicit in this approach to ‘only on the grounds of sex’. The court ruled that,
“… it is difficult to accept the position that a discrimination based on sex is nevertheless not a discrimination based on sex ‘alone’ because it is based on ‘other consideration’ even though these other considerations have their genesis in the sex itself” (https://indiankanoon.org/docfragment/68143/?big=2&formInput=article%2016).
Judicial Approaches to Sex Discrimination:
The relevance of Gender:
The case law dealing with sex discrimination reflects the more general judicial approaches to the interpretation of equality rights. The similar tension between formal and substantive equality is remains largely unarticulated in case law. The sex discrimination case law remains overly determined by a formal model of equality. There are three approaches which are apparent is Protectionist, sameness and corrective.
The first approach is a Protectionist approach in which women are constructed as weak and subordinate and hence she needs protection. In this approach the court’s understanding of women’s differences is asserted as justification for differential treatment. While in some circumstances this differential treatment are seen as sufficient justification in and of themselves for differential treatment. While in some other circumstances this differential treatment is preferential treatment, more often than not the differences are seen as sufficient justification in and of themselves for differential treatment.
The second approach is an equal treatment or Sameness approach, in which women are constructed as the same as men and hence, ought to be treated exactly the same as men in law. This sameness approach is invoked in a number of different context. It has been used to preclude any analysis of the potentially disparate impact of gender legislation. According to the sameness approach, it is sufficient that women and men be treated formally equally. Feminist approaches endorse this conception of equality according to which gender difference ought to irrelevant and women ought to be treated exactly the same as men. In this approach any kind of recognition of gender difference in the past has simply been a justification for discriminating against women.
The third approach is a Corrective approach in which women are seen to require special treatment as a result of Past discrimination. Within this approach gender difference is often seen as relevant and as requiring recognition in law. This approach argued that a failure to take difference into account will only serve to reinforce and perpetuate the difference and underlying the inequalities. Proponents of this approach attempt to illustrate how the directly gender neutral rules of formal equality are not gender neutral at all but it is based on male standards and values.
However, there are some important similarities between the protectionist approach and the corrective approach. Most significantly the both of these approaches state that gender difference can be relevant and hence it must be acknowledge in the law. While there are also important distinction between these approaches. Most notably, the protectionist approach is more likely to accept both gender differences and special protection as natural. While the corrective approach on the other hand is more likely to consider the basis of the difference and impact of recognition versus non-recognition of the difference on the lives of women. So gender difference needs to be recognized because of the extent to which it has historically been the basis of disadvantage and discrimination.
Gender Equality in Judicial Decisions:
(1) Adultery (Section 497 of the Indian Penal Code):
the Supreme Court has considered several challenges to section 497 of the Indian Penal Code which makes adultery committed by a man an offence and Section 198 of the Code of Criminal Procedure which allows only the husband of the ‘adulteress’ to prosecute the men with whom she committed adultery. But it doesn’t allow the wife of than man to prosecute him. Recently in 2018 the Supreme Court declared 158 year adultery law as unconstitutional.
In Abdul Aziz v. Bombay (1954), the accused who charged with committing adultery under S. 497 challenged the section as discriminating on the basis of Sex, and in violation of Article 14 and 15. But the High Court concluded that the difference of treatment was not based on sex but on the social position of women in India. On the appeal the Supreme Court ruled that any challenge under 15(1) was met by 15(3). The court rejected the argument that 15(3) ‘should be confined to provisions which are beneficial to women and cannot be used to give them a license to commit and abet crimes. The court ruled that,
“ Article 14 is general and must be read with the other provisions which set out the ambit of Fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the constitution itself provides for special provisions in the case of women and children”.
Hence the court upheld the adultery provisions as beneficial to women. The court adopted the ‘holistic approach’ to Article 15 and thereby seemed to endorse the view that equality may require that disadvantaged groups be treated differently. But the Court’s understanding of discrimination which is, any distinction on the prohibited grounds is suggestive of a more formal approach to equality. in the court’s opinion that the Articles should be read together, it seems to understand the preferential treatment allowed by Article 15(3) as an exception to equality. it is not clear that the Adultery laws do in fact treat women preferentially. On the one hand there is an obvious benefit to not being subject to criminal prosecution. While on the other level, the adultery laws are based on problematic assumption about women, women’s sexuality and about the relationships between women and men.
In Sowmithri Vishnu v. Union of India (1985), Section 497 of the IPC was challenged as unconstitutional by a woman whose husband had prosecuted her love for adultery. She argued that this provision was discriminatory because the only husband had a right to prosecute the adulterer. The wife on the other level had no right to prosecute either her adulterous husband or the woman with whom the husband had committed adultery. But while dismissing the petition the Court held that confining the definition of adultery to men was not discriminatory as it is commonly accepted that it is the man who is the seducer not the woman.
Again in the court has seen, a wife who is involved in an adulterous relationship is the victim rather than the author of the crime. The offence is committed against the sanctity of the matrimonial home and it is the man who defilies that sanctity.
The court’s decision was firmly located within a formal equality approach. The challenge was not allowed on the grounds that on the context of adultery, women and men are different. The court has clearly articulated is protectionist approach to gender difference. Where the man regarded as the seducer and the author of the crime.
The fact that the wife of the adulterer is expressly prohibited from prosecuting her husband is the only exception to the general rule that anyone can set the criminal law in motion. This exception is based on a particular understanding of the nature of harm cause by adultery. It seen as a violation of husband’s property rights over his wife and more specifically, of his wife’s sexuality. It is not a violation of wife’s rights since she is not seen as having the same claim. Thus, it is only the husband who can prosecute an adulterer since he is the only one who is seen to have suffered a harm.
(2)Domestic Violence:
The Protection of Women against Domestic violence Act of 2005 is one of the most progressive las enacted in the interest of women’s right in recent times. But it has also faced a legal challenges. In 2008 a matter was brought before the Delhi High Court to challenge the PWDVA as being ultra vires the Constitution on the grounds that it talked about protection to Women and not to men. The Delhi High Court upheld the act and ruled that,
“ …that the lot and fate of women in India is an abjectly dismal one, which requires bringing into place, on an urgent basis, protective and ameliorating measures against the exploitation of women” (Delhi High Court v Union of India (2008)
The court held that classifying women as a class in need of protection under this act was not unconstitutional. While cases of men being subjected to domestic violence did occur and these cases were very few in number and did not call for the same protection under the Act.
However, this act further had been challenge on the grounds that it provided equal rights to those couples who were married and to those in a live-in relationship, even though the two were not alike. The court held that just like the “abjectly dismal” lot of the married woman, women in live-in relationship were in need of protection as such relationship were “invariably initiated and perpetuated by the male” and the “social stigma always sticks to the women and not to the men” in such relationships.
While the court did not strike down the legislation, because the case operates within the framework of formal equality where men and women are not treated the same way under this Act as they are perceived differently whether in a marriage or in a live-in relationship. No stigma attaches to man who is a part of a relationship in the nature of marriage, the woman who enters such a relationships is often stigmatized. In this matter the court constructs the woman as a helpless participant in the live in relationship “perpetuated” by and thus in need for protection.
Conclusion:
Indian sex discrimination case law has been informed by a formal approach to equality, within which almost any differences can justify the differential treatment of women in law. As I have argued that aforementioned case law is primarily informed by a formal model of equality that is an understanding of equality as sameness and a disqualification of those who are different from an entitlement to equality. The courts have held that women are different than men and hence than women are weaker and in need of protection. This difference is used to virtually disentitle women to any claim to equality. While upholding the legislation the difference cannot distinguish between differential treatment that disadvantages and differential treatment that advantages. It cannot distinguish between legislation that further contributes to women’s subordination and legislation which attempts to correct for that subordination.
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