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An fascinating example of the rich and nuanced arguments that arise in cases of this kind is

exemplified by the judgment of the South African Constitutional Court in President vs Hugo. In
that case, Nelson Mandela granted a Presidential pardon to “all mothers in prison on 10 May
1994, with minor children under the age of twelve (12) years.” This was challenged on the basis
that the refusal to extend a like pardon to fathers with minor children under the age of twelve
years was sex-discriminatory, and based upon stereotypical assumptions that it was women’s
primary responsibility to bring up children. By a majority, the Constitutional Court rejected the
challenge. What is of particular interest is the debate between O’Regan J (concurring) and
Kriegler J (dissenting). Both judges agreed that the affirmative action provisions of the South
African Constitution could be invoked only where the ostensibly discriminatory legislation or
executive act bore some connection with remedying a historical or current structural inequality;
where they disagreed was the extent of fit that was required between the challenged provision or
act, and the remedial goal. While O’Regan J. would grant the State a degree of leeway, Kriegler
J. insisted on a tighter fit, and was suspicious of legislation or executive actions that relied upon
stereotypes in order to achieve substantive equality.

The Bombay High Court, in fact, relied upon the 1954 Supreme Court judgment that is the origin
of the carte blanche approach to Article 15(3): Yusuf Abdul Aziz vs State of Bombay. In that case,
the Supreme Court rejected a constitutional challenge to the adultery provision in the IPC, which
is asymmetrical in that women cannot be prosecution for adultery. The Court upheld the law by a
simple invocation of Article 15(3), ignoring the fact that the basis of the adultery provision was
precisely the kind of stereotypical gender-based assumptions that the Constitution intended to do
away with: i.e., that women are passive partners, lacking in sexual autonomy. This inattention to
how Article 15(3) ought not end up becoming a shield to perpetuate sexual and gender-role
based stereotypes has plagued the Court’s jurisprudence ever since.

In a brief judgement today, the Bombay High Court rejected a challenge to S. 20(3) of the Hindu
Adoptions and Maintenance Act. Under Sections 20(1) and 20(2), a Hindu is bound to maintain
his children as long as they are minors. Section 20(3) stipulates, 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. In other words, an unmarried son loses all claims to maintenance upon
majority, while an unmarried daughter can claim if she is unable to maintain herself.
Section 20(3) was challenged on the grounds of Article 14 (equality before laws) and Article 15
(non-discrimination on the basis of sex). The Court rejected both arguments; unfortunately, it
made no attempt to provide a reasoned argument supporting its conclusions. On the Article 14
issue, it noted:
“The class of unmarried sons who have attained majority is completely different from the class
of unmarried daughters who have attained majority. The reason being the peculiar position of
a daughter and especially an unmarried daughter in Hindu society. Therefore, the argument that
two equals are being treated as unequals is not at all acceptable and therefore, Article 14 will
have no application.”
The conclusion states the premise. Why are the two classes different? What is this “peculiar
position” occupied by the unmarried Hindu daughter? Logically, the reason for granting
maintenance to one and denying it to the other can only be that the former class is
expected not to be able or willing to maintain themselves. But is that a constitutionally legitimate
assumption? In Anuj Garg vs Hotel Association, as we have discussed previously on this blog,
the Supreme Court made it clear that stereotypical assumptions about the roles of the sexes in
modern society, or about the spheres in which they should be confined by virtue of birth, cannot
be made the basis of laws that grant unequal benefits or burdens to men or women. In fact,
interestingly, the logic of Anuj Garg, which is borrowed from American sex discrimination
jurisprudence, had its inception in Frontiero vs Richardson, a case where the challenged policy
was somewhat similar to S. 20(3) of the HAMA. In Frontiero, according to the US Air Force
rules for benefits for dependent spouses, “servicemen could claim their wives as dependents and
get benefits for them automatically, while servicewomen had to prove that their husbands were
dependent on them for more than half their support.” Holding this to be unconstitutional
(even though it ostensibly benefited women), the Supreme Court held:
“[T]he 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.”
Notice, once again, that from within a tangible, purely economic framework, women were
actually benefiting from the policy. But what the American Supreme Court was concerned about
was the fact that these benefits were predicated upon an ideology that cast women as inferior,
and destined to remain within the domestic sphere by virtue of their sex – a view that is now
called “romantic paternalism”.
This brings us to the second prong upon which S. 20(3) was challenged – Article 15. Here, the
Court was even more perfunctory in its dismissal:

“… clause (3) of Article 15 specifically provides that nothing in the Article 15 shall prevent the
State from making any special provision for women and children. Sub-section (3) of section 20 is
a special provision within the meaning of clause (3) of Article 15.”
Article 15(3) of the Constitution states:

“(3) Nothing in this article shall prevent the State from making any special provision for women
and children.”
The key question, of course, is what is legitimately covered by the phrase “special provision” –
and it speaks back to the discussion of Anuj Garg and Frontiero. Virtually any kind of inequality
can be justified as being a “special provision” for women – in fact, recall that in Anuj Garg that
prohibition upon women from working as bartenders was sought to be justified under Article
15(3), being a special provision for their benefit! This, of course, is the very embodiment of
romantic paternalism, and Anuj Garg makes it clear that classifications on this basis cannot be
sustained, even when the State makes a claim that the law actually benefits women, and is
thereby saved by Article 15(3).
This being the case, it is unfortunate that the Bombay High Court blandly assumed that a law that
seemed to provided a benefit to women at first blush, was automatically saved by Article 15(3),
without the need for a further enquiry into its rationale and its foundations. Of course, there is a
very fine line between a law that is based on impermissible stereotypes, and a law that allocates
unequal benefits and burdens in a bid to remove historical and structural disadvantages. For
instance, a law mandating reservations for women in Parliament is clearly not based on
stereotypes about the separate roles and spheres of men and women (quite the contrary!), but is
meant to help women to overcome long-standing hurdles to their full participation in politics and
the public sphere. Similarly, it might well be argued that 20(3) is simply cognisant of an
unfortunate social reality, and seeks to ensure that women are put on a secure financial footing,
in order for them to truly be in a position to lead fulfilling and self-determined lives.
I am not sure whether such an argument would succeed, but it is an argument that needs to be
engaged with, when considering the constitutional validity of provisions like 20(3), which very
evidently place unequal burdens upon men and women, and definitely had their inception in a
romantic-paternalistic view of women as domestic and private beings. Unfortunately, by
reducing both constitutional arguments (14 and 15) to mere assertions, the Bombay High Court
missed a chance to develop Indian sex-discrimination jurisprudence in a meaningful way.