Constitutional feminism: A misconstrued idea?

Introduction

The Constitution of India allows for special provisions to be made for women under Article 15(3). It further doesn’t elaborate upon the nature and kind of these special provisions and delegates the task onto the legislature and the judiciary to interpret the scope of the provision, in light of the scheme of the Constitution. The judicial approach, so far, is seen as interpreting these “special provisions” as a window to protect women and in turn, cater to the stereotypical notions of gender roles.

The purpose of this article is to discuss and critique, how the Indian judiciary has approached this idea of “constitutional feminism” enshrined in Article 15(3), to protect women in situations that don’t warrant differential treatment (it goes against both the genders – it identifies the female gender as weak and fragile, and it restricts and violates the right of the male gender to not be discriminated against on grounds only of sex) and promote gender bias.

Understanding the Constitutional Mandate of Equality

The Constitution of India under Article 15(1)[i] prohibits the state from discriminating against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them. Parallelly, it allows for special provisions to be made for women (and children) under Article 15(3)[ii]. This dichotomous stand of the Constitution can be reconciled by the realisation that both these provisions are nestled in its scheme of equality. Article 15(3), is therefore not a window, that can be used to override the concept of gender equality, and promote gender bias; rather it is tool that the Constitution makers have instituted to establish “gender sensitivity”, to establish “substantive equality” (and not a mere formal equality) and in turn achieve the long term goal of “gender equality”.

Article 15(3): Tracing the judicial approach

The approach used by the Indian Courts in several cases, however, has misconstrued this provision. For instance, in the case of Mt. Choki vs The State[iii], wherein the provision of Section 437, Criminal Procedure Code was under challenge on the ground that it is gender discriminatory, as it creates an exception for the class of women, infirm, and sick, people under the age of sixteen years in a situation, when the rest don’t have a right to bail. The Court, however, rebuked this contention and justified the provision as an application of the constitutional mandate under Article 15(3). It didn’t adduce any explanation in furtherance of such justification, except stating that the position in the Constitution appears to be that it is open to the State to make laws containing special provisions for women and children.

It is seen that Indian judiciary has been saving various legislative enactments from the challenge of constitutional validity, under the umbrella of this term “special provisions”. In the veil of protecting women and thereby creating special provisions for (apparently, for) women, the courts have rooted their understanding of the society in the stereotypes of gender roles and capabilities. This is evident from the judgement of the Bombay High Court in the case of Ramesh Gajanan Reje v Gauri Ramesh Reje[iv], wherein the provision of S. 20(3) of the Hindu Adoptions and Maintenance Act was under challenge on grounds of violating Article 14, 15, Constitution of India. Under Sections 20(1) and 20(2), a Hindu is bound to maintain his children as long as they are minors. Section 20(3) provides, however, that an unmarried daughter is to be maintained as long as she is unable to maintain herself out of her own earnings or property. The court dismissed the petition on the ground that Sub-section (3) of Section 20 is a special provision within the meaning of clause (3) of Article 15. Another such example is the Calcutta High Court judgement of Purnananda Banerjee vs Sm. Swapna Banerjee And Anr.[v], wherein Section 37 of the Special Marriage Act,1954 was under challenge for violating Article 14 and 15, Constitution of India, as it provides for the claim of permanent alimony and maintenance only to the wife, and not to the husband. The Court, while dismissing the challenge, held as follows:

“Section 37, Special Marriage Act is a special provision and even if it is opposed to the provision of Clause (1) of Article 15 of the Constitution which, in our opinion, is not, it is protected under Clause (3) of Article 15.

The conceptual fallacy in these judgements, protecting differential treatment on the basis of gender under the shield of “special provisions” can be understood in a better way, in light of a foreign case, which massively changed the course of the American sex jurisprudence, Frontiero vs Richardson[vi]. According to the US force Rules, serviceman could claim their wives as dependants, and get the requisite maintenance automatically. However, servicewomen had to prove the fact that their husbands as dependants to obtain the maintenance sum for them. So, while women could enjoy the benefits of their partners being in service, easily and smoothly, men had rigorous provisions for the same. This gender discriminatory aspect of the US service rules was challenged in the Court. The Supreme Court, while holding the impugned provision unconstitutional, held as follows: 

There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. However, the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members”

The court pointed out the gender discrimination of such nature (as is there in the impugned provision) is rooted in the stereotypical belief that “the husband in our society is generally the “breadwinner” in the family – and the wife typically the “dependent partner”

Juxtaposing the position in the U.S. with that of India would lead us to realise the erroneous approach followed by the Indian judiciary, to make provisions in favour of one class. The purpose of the institution of Article 15(3) was to instil in substantive equality[vii], and in order to achieve that object, it constitutionalises differential treatment in the requisite areas. Using stereotypical grounds as a basis to differentiate between the two genders would totally defeat the purpose.

One path-breaking judgement in this respect is the Anuj Garg v Union of India[viii], wherein the Constitutional validity of Section 30 of the Punjab Excise Act, 1914 prohibiting employment of “any man under the age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drug is consumed by the public was under challenge for violating Article 14, 15, Constitution of India. The Court held the provision to be unconstitutional on the ground of sex discrimination and violation of Article 15 and scrutinised the “double edged-sword like” nature of protective discrimination:

“It is to be borne in mind that legislation which pronounced “protective discrimination”, such as this one, potentially serve as double-edged swords. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.”

However, this understanding of the legal principles, in this case, has not percolated in a lot of the later judgements, as is evident.

Conclusion:

It must be understood that the provision of Section 15(3) has been instituted to further the object of equality, and therefore, its ambit and applicability must be determined in the light of the same. Using this provision arbitrarily to favour women against men, would shake the identity of the “female gender”, prompting us to believe them as weak, and would destroy the constitutional mandate of equality, rather than promoting it.

It is, therefore, of extreme pertinence to gauge the meaning and scope of this provision which though is shrouded in the veil of unequal treatment, has equality in its core, in order to protect the constitutional value of equality, in the way it was instituted.

[i] INDIA CONST. art 15, cl. 1.

[ii] INDIA CONST. art 15, cl. 3.

[iii] Mt. Choki vs The State, AIR 1957 Raj 10

[iv] Ramesh Gajanan Reje v Gauri Ramesh Reje, 2015 SCC OnLine Bom 2436.

[v] Purnananda Banerjee vs Sm. Swapna Banerjee And Anr, AIR 1981 Cal 123.

[vi] Frontiero vs Richardson, 411 U.S. 677 (1973)

[vii] Smt. Shikha Srakar vs The State of West Bengal, W.P. 9776(W) of 2018

[viii] Anuj Garg v. Union of India, AIR 2008 SC 663


ABOUT THE AUTHOR

Paras Ahuja

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Paras Ahuja is a third-year law undergraduate at the National Law University, Jodhpur. She has immense interest in the field of Constitutional law and writes generally on the intersection of law and social issues.

One thought on “Constitutional feminism: A misconstrued idea?

  1. Whether SC/ ST/ OBC act can be abolished?

    I would like to know whether the SC ST act can be abolished as the real SC/ST/OBC category people cannot avail advantage of it. The situation is so worse that poor general category people apply for SC/ ST/ OBC quota. They make there changes in surnames and also change the surnames of there children so as to obtain the category certificate in order to obtain high administrative jobs such as UPSC/ Judiciary. There parents fall in the category of creamy layer and have salaries higher than 8 lakh per annum yet they claim category. This is so pity. Recent selection in Delhi Judicial services had one NLU Delhi student under SC category. Both his parents had been working. He qualified for Judiciary. He falls in clear creamy layer. But this is so unfortunate that he had to apply for category. Why can’t this act be abolished. Is there any provision in constitution which gives power to abolish this act and save people from pathetic situations.

    Like

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