This July, the High Court of Delhi handed down a landmark decision concerning sex discrimination under the Indian Constitution. Article 15(1) of the Constitution prohibits the State from discriminating “on grounds only of… [inter alia] sex…” Indian Courts have tended to interpret this language restrictively.
Barring a few exceptions, the word “grounds” has been understood to mean “reasons for a decision”, thus requiring it to be shown that a particular law was motivated by an intention to discriminate. This has eliminated the possibility of challenging indirect discrimination. The word “only” has been interpreted to mean that discrimination along the single, prohibited axis of sex is unconstitutional; however, if it can be shown that characteristics other than sex play a role in the unequal distribution of benefits and burdens, then the impugned law or rule will pass constitutional scrutiny. This has allowed the government, for instance, to invoke stereotypes and prejudices about the role of women in society in order to justify laws denying them equal opportunity at the workplace.
In its judgment, the High Court of Delhi broke new ground by abandoning the restrictive approach on both counts. The case – Inspector (Mahila) Ravina vs Union of India – concerned a challenge to the Central Reserve Police Force’s (CRPF) denial of seniority benefits to a woman inspector, because she had missed a training course due to pregnancy (she had subsequently completed the course). Under the CRPF rules in question, an “unwillingness” to attend the promotional course would result in loss of seniority upon promotion.
The High Court held in favour of the petitioner, and invoked Article 21 (right to life and personal liberty) and Article 16(1) and (2) (non-discrimination in public employment on the basis of sex) of the Constitution. It is the second argument that is specifically noteworthy. In paragraph 12 of his judgment, Justice Ravindra Bhat observed:
“It would be a travesty of justice if a female public employee were forced to choose between having a child and her career. This is exactly what the CRPF‟s position entails. Pregnancy is a departure from an employee‟s “normal” condition and to equate both sets of public employees– i.e. those who do not have to make such choice and those who do (like the petitioner) and apply the same standards mechanically is discriminatory…In these circumstances, the denial of seniority benefit to the petitioner amounts to an infraction of Article 16 (1) and (2) of the Constitution, which guarantee equality to all in matters of public employment, regardless of religion, caste, sex, descent, place of birth, residence etc. A seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.“
This significantly advances Indian sex discrimination jurisprudence, not only because of what the Court held (that pregnancy-based discrimination is unconstitutional), but also because of how it did it. Justice Bhat observed that “a seemingly “neutral” reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights.” This is the language of indirect discrimination: facially “neutral” provisions have a discriminatory impact because they end up reproducing existing social inequalities and hierarchies.
It is also fascinating to note that Justice Bhat placed the word “normal” within quotation marks. In the first part of the paragraph, he noted that “pregnancy is a departure from an employee’s “normal” condition…” This reveals the crucial understanding that our intuitive ideas about the existing baseline, the “normal” from which we judge deviations, is a political and social construct. In other words, the “normal” is constructed from the perspective of a privileged subject position. The “normal” worker, being male, is not expected to become pregnant, and consequently, the baseline rules (penalisation for “unwillingness” to attend the promotional course) are constructed from his perspective. It is this edifice of exclusion that the Delhi High Court’s judgment interrogated, and then found to be inconsistent with the Constitution. By de-mythologising “normalcy”, the Delhi High Court made another significant advance towards a jurisprudence of discrimination that is true to the Constitution’s commitment of ensuring social justice.
(A longer version of this post first appeared here)