Reverse Discrimination for Anchoring Gender Equality

The Universal Declaration of Human Rights (UDHR), 1948 recognizes the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The Indian Constitution also upholds the dignity of the individual and promises equal status and opportunity for all.  Equal rights and opportunities to all and non-discrimination on the grounds of race, religion, caste, sex, place of birth, etc. form the core principle of equality.

Gender Equality is established when people are treated equally without discrimination on grounds of sex. Globally, women are considered as an oppressed class of persons who have been denied several rights on equal basis with men.Reverse discrimination, also known as positive/lawful/protective discrimination, refers to preferential treatment of people who have been historically in the minority or disadvantaged group. Such treatment uplifts them and creates de-facto equality between the privileged and the underprivileged. It is characterised by preferential policies enacted by the legislature which remedy people who are discriminated.

Human Rights instruments and the Indian Constitutionguarantee equal rights of men and women. India has ratified the Convention on Elimination of all forms of Discrimination against Women, 1979 (CEDAW), which stands for maximum participation of women on equal terms with men in all fields. CEDAW calls upon the states to take steps to eliminate all kinds of discrimination against women. Moreover, it allows them to adopt temporary special measures to accelerate de facto equality between men and women. In India, the state can make special provisions for women.

This research paper aims at studying and analysing reservation for women in institutions as a tool for reverse discrimination of women as against the privileged men. Doctrinal research methodology has been put to use in this research paper. The paper’s scope of study includes relevant international human rights instruments and Indian laws. The significance of this study lies in the analysis of the willingness of the society in recognising reservation as a matter of right for the underprivileged women and to the extent of which reservation has been used as a tool for reverse discrimination.

 

Reverse Discrimination

The word “discrimination” has been defined as distinguishing or treating people unfairly on the grounds of race, sex or age.[1] Therefore, discrimination refers to the treatment or consideration of, or making a distinction in favour of or against, a person or a thing based on the group, class, or category to which that person belongs rather than on individual merit. Discrimination can be the effect of some law or established practice that confers privileges on a certain class or denies privileges to a certain class because of race, age sex, nationality, religion or disability.[2]

An average person discriminates between different options available to him almost every day to arrive at a conclusion. However, when it comes to public law, discrimination unauthorised by law indicates unfair or unequal treatment of an individual or a group based on features like age, ethnicity, religion, sex, place of birth, disability, marital status, etc. Such discrimination leads to the division of the society into different classes on unreasonable bases and leads to gross injustice.

In our society, there are certain classes of people who by their very nature are weak and prone to unlawful discrimination such as women, disabled, aged persons, etc. They are called vulnerable groups. In order to uplift them and bring them on par with the rest of the community, the concept of reverse discrimination has been developed.

Reverse discrimination, also known as positive/lawful discrimination, refers to discrimination against people who have been historically in the majority or advantaged group. Simply put, it reverse-engineers discrimination in such a way that it operates against the privileged majority and puts the underprivileged minority in advantage. It is characterised by preferential policies enacted by the legislature which remedy people who are discriminated. The concept rose to importance in the late 20th century where preferential legislations were required to reduce the rising tensions between the minority and the majority in the society such as the conflict between the whites and the blacks in America, the issue of untouchables in India, etc.[3] History has witnessed several preferential legislations on international, regional and national levels which uplift the vulnerable groups and give them equal protection, status and opportunities in the society.

Reverse Discrimination and International Human Rights Instruments

Universal Declaration of Human Rights, 1948 (UDHR), has recognised inherent dignity and equal and inalienable rights of all members of the human family as the building blocks of freedom, justice and peace in the world. It also recognises equal rights of men and women as one of the important factors towards achieving social progress and better standards of life in larger freedom.[4] Furthermore, it also highlights that all rights and freedoms set forth in the declaration must be granted to everyone without discrimination on the grounds of sex inter alia other grounds.[5]

The International Covenant on Economic and Social Rights (ICESCR), 1966 also points out that the rights enunciated under the covenant must be granted to all without discrimination on grounds of sex inter alia other grounds[6] and that the state parties must take all due steps to ensure equal rights of men and women to the enjoyment of all economic, social and cultural rights laid down under the covenant.[7]

The International Covenant on Civil and Political Rights (ICCPR), 1966, requires each state party to respect and ensure to all individuals within its territory and jurisdiction the rights recognised by it without distinction of any kind on the basis of sex inter alia other bases. Moreover, it also requires the state to take the necessary steps to give effect to the rights recognised by it.[8] ICCPR also guarantees equality between men and women in the context of civil and political rights.[9] The covenant also prohibits state parties to take measures which are discriminatory based on sex and other grounds even in the cases of public emergencies.[10]

The Convention on the Elimination of all forms of Discrimination against Women (CEDAW), 1981, has the biggest contribution as an international human rights instrument towards securing gender equality. It defines “discrimination against women” as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”[11] CEDAW requires state parties to condemn discrimination against women in all its forms and to agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women by taking the necessary steps through law and other appropriate means.[12] State parties must also take appropriate measures especially in the social, political, economic and cultural fields, including legislation, to ensure full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.[13] The convention excludes special measures aimed at achieving de-facto equality between men and women from the definition of discrimination and also asks state parties to withdraw such measures as soon as their objectives are achieved.[14] CEDAW also discourages social and cultural patterns that create prejudices against women and lead to their inferiority among the sexes and creates stereotyped roles for them in the society.[15] CEDAW provides women other rights as well such as right to vote and to be voted for election to all publicly elected bodies, right to hold public office and execute its functions at all levels of government[16], right to represent their Governments at the international level and to participate in the work of international organisations[17], equal rights and opportunities in the field of education[18], equal rights and opportunities in the field of employment[19] and equal rights and opportunities for rural women[20]. CEDAW, furthermore, requires the state parties to take all the necessary steps to guarantee women the rights recognised by it at the national level.[21]

 

Regional Human Rights Instruments

European states adopted Human Rights instruments and mechanism in their region. They were the first. Council of Europe adopted the European Convention of Human Rights (ECHR) in 1950. European Union has proclaimed the Charter of Fundamental Rights of the European Union in 2000. Both these instruments recognize equality as a basic principle. Organisation of American States (OAS) adopted the American Convention on Human Rights (ACHR) in 1969. All civil political rights are guaranteed equally without discrimination. In 1948, Inter-American Convention on the Granting of Political Rights to Women was adopted. This convention declares that the right to vote and the right to be elected to national office shall not be denied or abridged by reason of sex.[22]The African Union has adopted laudable human rights conventions. The Banjul Charter/African Charter on Human and People’s Rights (ACHPR), 1981, is the first and major human rights instrument of Africa. In 2003, African Union adopted a protocol to the ACHPR on the rights of women in Africa. This protocol recognizes affirmative action for gender equality.[23]Arab Charter on Human Rights also recognizes gender equality. Commonwealth of Independent States (CIS) was formed in 1991 by Russia, Soviet Union and Asian and South Pacific Regions. CIS Convention on Human Rights and Fundamental Freedoms has also as its base the principle of equality.

 

Gender Equality and Indian Constitution

The Constitution of India embraces the principle of gender equality through its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution of India, apart from granting equality to women, it also gives the state the power to make special provisions and to adopt the required measures in the form of reverse discrimination for women. Article 15 (3) of the Indian Constitution reads as under:

“Nothing in this article shall prevent the State from making any special provision for women and children”.

The Constitution safeguards women from the various social, economic, political and cultural disadvantages they face in the society by making them equal before the law and entitled to equal protection of the law.[24]The Constitution disallows the state to discriminate against any citizen on the grounds of sex inter alia other grounds and allows the state to make special provisions for women and children.[25]The Constitution also provides equal opportunity for all citizens in matters of employment and appointment to any public office.[26] The State is required by the Constitution to direct its policy towards securing for men and women equally the right to an adequate means of livelihood and equal pay for equal work for both the sexes as well.[27]The State is also required by the Constitution to make provisions for securing just and humane conditions of work and for maternity relief[28], to promote with special care the educational and economic interests of the weaker sections of the society and to protect them from social injustice and all forms of exploitation[29]. It also promotes harmony and the spirit of common brotherhood amongst all people of India and to renounce practices derogatory to the dignity of women[30].

India, as a democracy, has developed several laws, policies, plans and programmes with the intention of uplifting women in different aspects. India has also ratified several international human rights instruments, including the CEDAW in 1993, in furtherance of which India came up with many legislations in the form of protective discrimination in order to secure equality for women. National Policy for Empowerment of Women (2001) assured affirmative action and women-friendly personnel policies to encourage women to participate effectively in the development process.

 

Reverse Discrimination: Reservation for women

Reverse Discrimination is in the form of affirmative action to uplift the backward people and ensure de-facto equality. A mere declaration by law that all are equal cannot still guarantee equality in reality. Ashok Acharya observes that affirmative action largely seeks to address structural inequalities between different groups in societies with ideas of fairness towards disadvantaged groups and of redress for unjust inequalities by way of temporarily redistributing or reallocating scarce goods.[31]

Supreme Court of India explained the concept of affirmative action in Marri Chadra Shekhar Rao v. Dean, Seth G.S. Medical College[32]-“Equality must become a living reality for the large masses of the people. Those who are unequal, in fact, cannot be treated by identical standards; that maybe equality in law but it would certainly not be real equality. Existence of equality of opportunity depends not merely on the absence of disabilities but on the presence of abilities. It is not simply a matter of legal equality. De jure equality must ultimately find its raison d’être in de facto equality.”Marc Galanter uses the word compensatory discrimination. For him the purpose is inclusion.[33]

The word “reservation” is defined as an arrangement to have something held for one’s use such as a right or interest or a record of such arrangement.[34]Article 15 (3) of the Indian Constitution, which allows special provisions to be made for women, gives the green signal for reservations in favour of women recognising the need for representation of women in various institutions in the society.

In Govt. of AP v. P.B. Vijay Kumar[35], the Supreme Court held that all other things being equal preference would be given to women to the extent of 30% posts since Art. 15 (3) is wide enough to include employment under the State. The court emphasized: “To say that under Art. 15 (3) job opportunities for women cannot be created would be to cut at the very root of the underlying inspiration behind this Article. Making special provisions for women in respect of employment or posts under the State is an integral part of Art. 15(3). Therefore, the court positively admitted that an important limb of the concept of gender equality is creating job opportunities for women.

In Rajesh Kumar Gupta v. State of UP[36], the Supreme Court upheld 50% reservation in favour of female candidates for primary school teachers.

In Vijay Lakshmi v. Punjab University[37], the Supreme Court held that rules that make reservations only for women as a principal, a teacher, a doctor or a superintendent are not violative of Articles 14, 15 and 16. It further held that if special schools and colleges for girls are acceptable then so are special rules which are meant for protection of young girl students.

However, Supreme Court also has opined that reservation for women cannot be an absolute 100% as well because it would be unfair to the other potential candidates for that particular post.

In Union of India v. K.P. Prabhakaran[38], the Supreme Court struck down the Railway Administration’s decision to have all reservation counters in the metropolitan cities to be manned only by women, i.e., 100% reservation because it violated Art.14, 16 (1) and (2) and not protected by Art.15 (3).

 

Reverse Discrimination in Legislatures

The Constitution is also known for making reservations for women in public institutions such as one-third of the total number of seats in every Panchayat[39], one-third of the total number of offices of chairpersons in the panchayats at each level[40], one-third of the total number of seats in every municipality[41]and reservation of offices of chairpersons in municipalities for women in such manner as the legislature of a state may by law provide.[42]However, the original Constitution did not provide for reservation for women in the legislatures.

The Indian Constitution has laid down three levels in the elected legislative bodies, but women have reservation only at the local level. Articles 243 T and 243 D provide reservation for women of not less than one-third of the total seats. Articles 243 D and 243 T (4) also provide reservation for women in Panchayats and Municipalities. Reservation up to 50% for women in local bodies is also seen in states like Maharashtra.

The reservation for women in local bodies has been upheld. In Ashok Kumar Malpani v. State of Madhya Pradesh[43], enhancing reservation for women from 30% to 50% in the local bodies by amending MP Municipal Corporations Act, 1956 and MP Municipalities Act, 1962 was upheld. The High Court applauded the enhancement as an inroad into encouraging participation of women in the ground democratic polity. The Court rejected the complaint that the reservation will let the administration take over the elected body due to the inadequacies of the women as premature thinking of bygone days.[44]The Court also rejected the argument that there is no need for reservation as there is equality in contesting and that there is no ban on women from being elected.

The International Parliamentary Union data, as of March 1, 2017, shows that world average percentage of women in national parliaments, both houses taken together, is just 23.4% and Asian average is 19.4%. India has 11.8 % in the lower house and 11% in the upper house.[45]Report of the Government of India Committee on the Status of Women (1974) highlighted the low number of women in political bodies and recommended that seats should be reserved for women in panchayats and municipal bodies. Two members-Lolita Sarkar and Vina Masumdar asked for reservation in all legislative bodies.[46]However, to this date, the issue of reservation of seats for women in legislative bodies still remains debated. Even after several years of independence, women have a very low representation. It is just 11.42% in the current 16th Lok Sabha and the average in 2008 in State Legislative Assemblies was just 6.94%.[47]In more than 60 countries there are electoral quotas for women and in India we still have not passed the Women Reservation bill, which is pending in Lok Sabha since 1996. To have such low representation of women in legislative bodies defies the spirit of democracy and inclusive growth.[48]

 

IPC: Adultery and Reverse Discrimination

Indian Penal Code (IPC), 1860, is the general penal law of India. It deals extensively with general offences. Generally, most of the offences are gender-neutral even though the language of IPC is not gender-neutral which issue has been resolved by defining gender. Robbery, Theft, Extortion, Murder, Fraud, Defamation, Abduction, etc. are such offences, where any person, irrespective of sex, who commits is punishable. But, there are certain offences which are gender-specific, i.e. they can be committed only by males or they can be committed only against a woman. If the same act is done by a woman, there will be no offence committed in the eyes of law. One such offence under the IPC is the offence of “adultery”.

Section 497 of IPC states that the offence of adultery is constituted when a man:

  • Has sexual intercourse with a woman;
  • With the knowledge or adequate reason to believe that she is married to an another man;
  • Without the connivance or consent of such man;
  • Provided the act of sexual intercourse does not amount to rape;

The section punishes the man who has such sexual intercourse with a married woman with an imprisonment of either description for a term which may extend to five years, or with fine, or with both. However, the section does not subject the adulterous woman to the same kind of punishment.

In the case of adultery, only the man is considered to be the aggrieved party. Therefore, the wife of the adulterous man cannot file a suit against her husband for committing adultery. This is because of a silly assumption that only the husband has the right to conjugate with his wife and no one else. Moreover, only the adulterous man can be punished whereas the adulterous woman cannot be punished. This prima facie disparity and discrimination was challenged several times as violative of Articles 14 and 15 of the Indian Constitution. But the Supreme Court, rejecting the pleas, has justified its stand on the ground that the adulterous woman is a victim and not the author of the crime. It further rejects the argument that S. 497 is gender- biased by not allowing women to file a case against her adulterous husband. Reconciliation of the matrimonial institution is seen as a justification.[49] Therefore, it must be realised that Section 497 of IPC is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. The law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law.[50]However, a woman is allowed to file a civil suit, applying for divorce, against her husband for committing adultery.[51]

Recently in 2012[52], the constitutionality of the section was re-challenged on the following grounds:

  • A woman can neither be a complainant under the impugned section nor can she attract liability as either an offender or an abettor, thus being clearly gender-biased.
  • Lord Macaulay had not inserted the said provision in the first draft of the IPC. Even in the 1971 Law Commission Report, displeasure had been expressed at the provisions of Section 497. A recommendation in this behalf was also made by the Justice Malimath Committee on Reforms of Criminal Justice System in 2003

The bench in the above case observed, “The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Therefore, the mere fact that an offender is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

There is some recent advancement in this issue of constitutionality of Section 497 of IPC.

Recently in Joseph Shine v. Union of India[53], a bench consisting of Chief Justice of India Dipak Misra and Justices A. M. Khanwilkar and D.Y. Chandrachud admitted and issued notice on a writ petition challenging the validity of Section 497 of the IPC, in so far as the impugned section extends immunity to women from prosecution for the offence of adultery, even as an abettor. The bench made the following observations:

  • Even though section 497 provides relief to women by making only one party liable for the criminal offence, it remains to be seen if conferment of affirmative rights on the woman can go to the extent of treating her as a victim to the peril of the husband.
  • The wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act.

Based on such observations, the honourable Supreme Court in its order held, “Section 497 of IPC tantamount to subordination of a woman where the Constitution grants equal status. The provision really creates a dent on the individual identity of a woman when the emphasis is laid on the connivance or consent of the husband. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

When it comes to adultery (S.497) both man and woman being in pari delicto the law punishes only the man. When the married woman herself consents to the sexual intercourse knowing that it is wrong, how can she still be a victim and not the author of the crime? The basic feature of an ideal marital relationship is “trust”. Adultery shatters that very trust a husband has over his wife. The Supreme Court has been ridiculous all these years by justifying reconcilement of the matrimonial institution after all the damage had already been done.

The Indian law on adultery has been wrong all this time in the name of protective discrimination for women. Definitely, women have suffered a lot since the ancient times and require empowerment. But, IPC should not pit the women against men which is neither good for the society nor for the family. For women, men and trans-genders there should be a uniform penal code. It is hoped that the parliament would take into account the observations made by the Supreme Court above and also the various Law Commission Reports that it has been avoiding from the past in this regard and finally amend this old archaic provision. This provision of law needs to be made gender-equal.

 

Conclusion

The Indian Constitution is committed towards securing equality and recognizes the importance of reservation as a tool for achieving de facto gender equality. The Legislatures also have taken several steps in order to secure reservation for women in several institutions of the society. However, when it comes to reservation for women within themselves they have been showing a blind eye towards it for several years now. This unfortunate position needs to be changed. Moreover, it is high time that something be done with the old archaic law under Section 497 of the IPC because it is clearly incompatible with Article 15 (3) of the Indian Constitution and the spirit of equality. The matter being pending in the Supreme Court, there is still hope left. Reverse Discrimination as a successful tool to anchor gender equality in India is still under-utilised. Women participation and women empowerment can be enhanced by exploring reverse discrimination in more creative ways.

 

[1] The Little Oxford Dictionary, Thesaurus and Word Power Guide, Indian Edition, Oxford University Press, Edition 2010

[2] www.definitions.uslegal.com/d/discrimination/

[3] www.legaldictionary.net/reverse-discrimination/

[4] See Preamble to UDHR

[5] Article 2, UDHR

[6] Article 2 (2), ICESCR

[7] Article 3, ICESCR

[8] Article 2, ICCPR

[9] Article 3, ICCPR

[10] Article 4, ICCPR

[11] Article 1, CEDAW

[12] Article 2, CEDAW

[13] Article 3, CEDAW

[14] Article 4, CEDAW

[15] Article 5, CEDAW

[16] Article 7, CEDAW

[17] Article 8, CEDAW

[18] Article 10, CEDAW

[19] Article 11, CEDAW

[20] Article 14, CEDAW

[21] Article 24, CEDAW

[22] Article 1, Inter-American Convention on the Granting of Political Rights to Women

[23] Article 9 (1) of the Protocol

[24] Article 14, COI

[25] Article 15, COI

[26] Article 16, COI

[27] Article 39, COI

[28] Article 42, COI

[29] Article 46, COI

[30] Article 51 A (e), COI

[31] Ashok Acharya, Affirmative Action for Disadvantaged Groups-Across Constitutional Study of India and the US in Rajiv Bhargava ed., Politics and Ethics of the Indian Constitution, Oxford University Press, 2008, p.267

[32] 1990 (3) SCC 130 at p.138

[33] Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Oxford University Press, New Delhi, 1984, p.3

[34] www.merriam-webster.com

[35] AIR 1995 SC 1648

[36] (2005) 5 SCC 172

[37] AIR 2003 SC 3331

[38] (1997) 11 SCC 638

[39] Article 243 D (3), COI

[40] Article 243 D (4), COI

[41] Article 243 T (3), COI

[42] Article 243 T (4), COI

[43] AIR 2010 MP 64

[44] Id para 98

[45] Women in National Parliaments, www.ipu.org

[46] Towards Equality: Report of the Commission on the Status of Women in India, Ministry of Education and Social Welfare, Department of Social Welfare, Government of India, 1974

[47] Reservation of seats for women in legislative bodies: Perspectives, Rajya Sabha Occasional Paper Series-1/2008, www.rajyasabha.nic.in/rsnew/publication_electronic/reserv_women_pers2008.pdf

[48] Women’s Reservation Bill, Lokniti, www.lokniti.org/wome-reservation-bill.php

[49]Yousuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321; Sowmithri Vishnu v. UOI, AIR 1985 SC 1618: 1985 Cri. LJ. 1302 (SC);

[50] V. Revathi v. UOI, AIR 1988 SC 835

[51]S.22 of Indian Divorce Act, 1869 and S. 13 (1) (i) of Hindu Marriage Act, 1955

[52] W. Kalyani v. State Tr. Insp. Of Police and Another, [(2012) 1 SCC 358]

[53] WP (Crl.) No. 194/2017 dated 08/12/2017, retrieved from www.livelaw.in on 09/12/2017

 

Author : Rajsankar Jayakumar ,Student, V.M. Salgaocar College of Law, Miramar, Panaji, Goa-403001.

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