Table of Contents
1 Objectives and Research Methodology
4 Shift in the Notion of Equality I Analysing Affirmative Action
5 Feminist Analysis of Constituent Assembly debates
6 Kapur and Cossman on Equality in Indian constitutional jurisprudence
7 Catharine MacKinnon on Constitutional Equality Interpretation
8 Case Analysis of Gender Equality jurisprudence in India
9 CEDAW and Indian Constitution
10 Findings and Recommendations
- To fully understand the concept of Gender Equality within the Indian Constitution.
- To examine whether the Indian Constitutional jurisprudence advances Gender Equality and Justice.
- To examine the element of Patriarchal bias within the provisions, if any.
- To understand how feminism interacts with Constitutional Law and Constitutionalism.
The methodology is primarily doctrinal involving the evolution of Judicial thought on Gender equality. Chief sources referred to are –
- Constituent Assembly debates
- Case Laws involving constitutional interpretation
- Feminist Literature through feminist writings (Ratna Kapur , Catharine A. Mackinnon and Brenda Cossman)
- Committee Reports
The project follows deductive type reasoning starting with a broader concept narrowing down to the Indian aspect.
The Following research paper is submitted as a term paper for the Course of Gender Justice and Feminist Jurisprudence. It deals with the Equality Interpretation in the Indian Constitution (including Constituent Assembly debates) with regard to Gender Justice and Feminism. By employing doctrinal research marked by chronological case analysis along with deductive type of reasoning it seeks to analyse the notion of Equality within the Indian Constitution and its interaction with feminist literature. It further analyses the interpretation of the courts with regard to Equality provisions within the Constitution and whether these interpretations advance Gender Justice. It finally deals with the Interaction of Indian scenario with CEDAW and enlists the findings that arise after all the aforementioned analysis.
The meaning of equality in law nearly everywhere descends in a direct line from Aristotle's dictum that equality means treating likes alike, unlikes unalike.1 This notion of Equality has been enshrined in nearly all constitutions in the world. 14th Amendment of the U.S Constitution provides the guarantee of Equality. The Equal Protection clause of the Fourteenth Amendment is one of the most litigated sections of the American Constitution. US Supreme Court has developed a three-tier analysis approach. Under this system, with a challenged classification, the government has to show that this classification serves a compelling state interest and that the legislation is necessary to serve the interest.2 Section 9 of the South African Constitution provides that “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” and it further extends this guarantee to the conduct of the people by guaranteeing “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection”.3 Under the Indian Constitution Article 14 provides a general guarantee of Equality by stating that “the State shall not deny to any person equality before the law or the equal protection of the laws”.4 The general Equality law In India thus emanates from the two postulates of Equality before law and Equal protection of Laws.
The scope of Equality protection is further extended with Article 15 which provides that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
Article 15(3) provides that “nothing in this article shall prevent the State from making any special provision for women and children”.5
However, feminist Criticism has been raised over this phraseology of using Women and Children together. The immunity of women and children as a single ascriptive group was at the time linked to the general theory of occupational immunity by legal scholars and to “protection” discourses of the modern nation-building era equating “women and children” with the national home-front.6 As per Works of Grotius and Vattel – Women are not be attacked as it is dishonourable to attack the weaker sex. The emergence of this clubbing together has been carried forward in legal systems where women are considered someone to be ‘protected’ as children.
Shift in the notion of Equality under Indian Constitution- Analysing Affirmative Action
The notion of Equality is one of the cornerstones of a democracy. It has been interwoven in the entire fabric of the Indian constitution and is one of the strongest pillars on which the constitutional regime of country works. Undeniably, discrimination on the bases of, inter alia, caste, sex, religion and place or origin was rife in pre-colonial and colonial India. Hence the spirit to form an egalitarian society based on the principals of no discrimination was even stronger. The Preamble of the Constitution of India itself mandates that equality of status and opportunity shall be available to all people in India irrespective of caste, sex, religion and gender. To remedy the wrongs committed in the past and eradicate the present inequalities these articles were included in the Constitution.
Article 15(1) states: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them 7.”
And, Article 16(1) states: “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State 8.”
One of the way of interpreting these clauses included in the Constitution is the colour blind method which has also been used by US Supreme Court in several cases9. It mandates that sorting and classifying people on prohibited grounds is completely wrong and is against the constitutional provisions. It is marked by the fact that this country tolerates no sorts of segregation based on the grounds of class, colour, creed and gender.
It can be said that these are individual rights and hence in no case be overridden. The clauses above mentioned use terms that are individual centric and appear to be as safeguards for each and every individual then the society as a whole. The article specifically uses the term any citizens and all citizens in Articles 15 and 16, which is a clearly individual-centric term.
Article 15 could have been constructed to read “The State shall not discriminate on the basisof sex, caste, religion…”.Thus rather than using a general term the provision reads “the State shall not discriminate against any citizen on the grounds of…” The addition of “any citizen” is superfluous unless it is meant to signify a commitment to the colour-blind, individual-centric vision of equality10. It is also clear that while 15(3) provide that special provisions could be made for women and children no such provisions were included in the original text of the constitution in Article 15 or 16 of the Constitution of India. The provisions related to the laws concerning socially and educationally back ward classes were added later in the text of the constitution of India. Section 15(4) and 15(5) were included by the first amendment of 1951 and Ninety Third amendment Act 2005.
There is enough material to believe that the constitution makers believed in a more straitjacketed, individual centric and difference neutral view of equality which is different from a group centred view which lays more focus on historical subordination. However this view cannot be held to entirely true as if we focus in the constituent assembly debates the constitution makers did not accept that importance of reservations for the initial years to put people on a level playing ground to compete. This issue also raises an important issue of whether our fundamental rights are, ultimately, built on the idea of the individual, or a more communitarian idea that involves groups, because it plays an important role in the interpretation of other fundamental rights such as freedom of speech and expression, or the freedom of religion.
However the provisions cannot always be seen in this particular light. It is important to understand that the inequalities that these individuals are subject to are due to them being part000 of these groups and communities which are subjected to discrimination. Hence for practical application of the notion of equality and establishment of an egalitarian society in the actual sense it is important to ensure that groups that have been supressed and subordinated historically are no longer subordinated. Here comes the importance of Affirmative Action. Becomes a necessary instrument of bringing equality in a historically unjust and unequal society.
It is important to look into various judicial pronouncements of the SC to determine the interpretation given to the whole notion of equality in the initial years of the development of constitutional jurisprudence. State of Madras v. Champakam Dorairajan11 was the first such case where this issue came up before the Supreme Court. In 1951 the Madras Government came up with a policy which stipulated admission to medical and engineering colleges in a proportion, based upon caste and religion. The policy was challenged inter alia, under Article 15(1) of the constitution of India. The court struck down the Madras Governments policy as it said that, arguendo if reservations could be justified under Article 46, this would make 16(4) redundant. In making this statement the court relied on the premise that 16(1) in itself did not allow the government to make reservations for particular classes but it was empowered to do it under the exception provided in 16(4).
The court made noteworthy observations in M.R. Balaji v. State of Mysore 12 regarding reservations of Socially and Educationally Backward classes and scope of Article 15 and 16 of the Constitution. The court mandated that caste could never be the sole basis of determination of social and educational backwardness and also there were backward communities amongst Muslims and Christians who did not follow caste system. The court rejected the 68% quota of reservation as Article 16(4) was an exception to the Article 16 which provided for equality of opportunity in the matters of public employment and hence it could only be 50% and not more than that otherwise exception would override the rule.
To overcome the difficulties faced by such decisions and to help the backward classes by making discriminatory provisions against them the government added 15(4) to the constitution by an amendment in 1951. 15(4) enabled the state to make reservations for socially and educationally backward classes.
The notion of equality however has changed overtime. From the individualistic, raw notion of equality which envisages basic equality for individuals it has been observed that that equality cannot come just by virtue of regarding all individuals as equal. Even if opportunities are rendered open for all individuals irrespective of their differences it is natural that groups of people historically subjugated will not be able to avail those opportunities as they will not have the required qualification for it. By mere proclamation that the state believes in the notion o equality and the constitution regards all individuals as equal will not help ib achieving real equality at the ground level. Some sort of affirmative action will always be required to bring the already depressed at par with those who are fit to compete,
It has been accepted by the Apex court also that reservations are important for achieving the larger mandate of Equality of opportunity. This view of the SC can be clearly observed in State of Kerala v. N.M. Thomas 13
In this case a governmental order was passed for promoting people from SC and ST category who did not have the required eligibility to fit in the criteria. They were also given a grace period of two years to gain the requisite qualifications. The order was challenged on the grounds that it was violative of Article 16(1) and 16(2) of the constitution and 16(4) pertaining to appointments in public office did not apply.
The Supreme Court however held that 16(1) in itself enabled the government to make such provisions and remedial actions for the benefit of such classes as it was a very inherent idea under the notion of equality itself. The court held that
“E quality of opportunity would naturally mean a fair opportunity not only to one section or theother but to all sections by removing the handicaps if a particular section of the society suffers from the same.” 14 .
Worth noticing here is the difference in the approach of the court from Balaji15 where the court did not declare that Article 16(1) in itself included the notion of affirmative action.
A fundamental shift in this case was that 16(4) no longer regarded as an exception to 16(1), enabling the government to take remedial actions for certain classes in the absence of which it would be void but now exists as “one of the methods of achieving equality embodied in Article 16(1) 16 .” As far as the question of 16(2) was concerned the court held that caste as a criterion which cannot be used as per this section is different from Scheduled caste which could also be regarded as “backward classes”.
Setting the controversy to rest in Indra Swahney the Supreme Court held that 16(4) could not be regarded as an exception to 16(1) as 16(1) in itself contained the idea of remedial action by the government to give opportunities to groups who have been hitherto deprived of it.
In other words it was accepted by the courts that the notion of equality itself included the notion of affirmative action for those who have hitherto have been treated as unequals and bring them to a level playing ground with the others.
The true import of equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities and opportunity of excellence in all spheres17.
Feminist analysis of Debates within the constituent assembly
The Constituent Assembly debates have long been used to interpret the provisions of the Constitution. They serve as a key to gauge the intention of the members of the assembly behind the provisions of the constitution. With regard to the provision of equality, a consensus on its importance was present. However, the nature of this Equality, with regards to women seems to be what has been described as a protective notion, reinforcing the pre-existing norms of patriarchy and dominance. For instance in the constituent assembly debates , K.T Shah remarked, “The rage for equality which has led to provide equal citizenship and equal rights for women has sometimes found exception in regard to special provisions that, in the long range, in the interest of the country or of the race, exclude women from certain dangerousoccupations , certain types of work. That, I take it, is not intended in any way to diminish theircivic equality or status as citizens. It is only intended to safeguard, protect or lead to their betterment in general; so that the long-range interests of the country may not suffer”.18
1 This language is a long-standing interpretation, 3 of ARISTOTLE ETHICA NICOMACHEA, 112–117, 1131a–1131b (J. L. Ackrill & J. O. Urmson eds., W. Ross trans., Oxford Univ. Press 1980), and ARISTOTLE, THE POLITICS 307 (Benjamin Jowett trans., The Modern Library 1943) (“[e]quality consists in the same treatment of similar persons”).
2 Fourteenth Amendment https://www.law.cornell.edu
3 Section 9(3) and 9(4) of the Constitution of South Africa
4 Article 14 of the Constitution of India
5 Article 15(3) Constitution of India 1950
6 Carpenter Charlie , Innocent Women and Children-Gender, Norms and the Protection of Civilians Routledge, 2016
7 Article 15(1) Constitution of India 1950
8 Article 16(1)Constitution of India 1950
9 Reservations, Equality and the Constitution www.indconlawphil.wordpress.com last visted- 14th May 2017 2:30 AM
11 1951 AIR 226
12 1963 AIR 649
13 1976 AIR 490
14 State of Kerela Vs N M Thomas 1976 AIR 490 Paragraph 193
15 M.R. Balaji v. State of Mysore (1963 Supp. (1)SCR 439)
16 State of Kerela Vs N M Thomas 1976 AIR 490 Paragraph 46
17 DD Basu Introduction to the Constitution of India Lexis Nexis
18 KT Shah CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII