THE USE AND ABUSE OF THE RHETORIC OF “GENDER JUSTICE” IN ANUJ GARG CASE

This article is written by Tanya Batra, a 4th year student of O.P. Jindal Global University

Introduction

In 1914, the Punjab Excise Act was passed, Section 30 of which prohibited the employment of any woman in any part of an establishment in which liquor or another intoxicating drug was being consumed. Further it prohibited any man or woman of below 25 years of age from being employed by an established of a similar nature. Fast forward to 2008, in the case of Anuj Garg v. Hotel Association of India & Others, the constitutional validity of Section 30 of the aforementioned Act was challenged.

Analysis

The First Respondent of this case is the Hotel Association of India, whose members carry on business in hotels. It is to be noted that liquor is not only served in the bars but also in the restaurants of the hotel. It is also provided in rooms as part of room service. Since liquor is provided in rooms, the wide restriction laid down by section 30 of the Punjab Excise Act (1914) prohibits women from being employed as housekeeping staff of a hotel, where if they were employed would then be exposed to liquor, which goes against the very foundation of implementing the Punjab Excise Act, in the eyes of the State. The legislation aims to ensure the security of women, which according to the State when passing the legislation, could be done by keeping women and liquor separate. By keeping women away from liquor, they were in a way being protected as they were believed to be in need of protection. In other words, the State used ‘protective discrimination’ to prohibit women from employment which is contradictory to Article 16 of the Constitution of India, which guarantees equal opportunities to everyone in matters of public employment. Protective discrimination is the policy of providing special provisions to underprivileged classes in society, in this case women. In the case of Dothard v. Rawlinson , Justice Marshall gave a dissenting opinion stating protective discrimination to be of wrongful nature. By denying women the equal opportunity of employment in a prison as guards because they could instigate actions of sexual assault in male sex offenders is discriminatory and in a way blaming them for being a woman because being a woman is what instigates the need for sex offenders to sexually assault them, as believed by the State.

Article 15(3) of the Indian Constitution states, “Nothing in this article shall prevent the State from making any special provision for woman and children”. By using 15(3) to justify their reason behind implementation of the Punjab Excise Act, the State is approaching the idea of “separate spheres” and sexual roles. Through the commandment of Article 15(1), that “the State shall not discriminate”, it is understood that discrimination rules out any justification by the State based on separate spheres, and therefore sex roles stereotypes. Separate spheres allows the male gender to suppress women and restrict them to limited spheres, such as reproduction, marriage and domestic work. Further, if and when the State makes a classification, it must be rational and not on a random basis. The act of classification precedes differential allocation of benefits and burdens. Therefore, in such cases, the problem is not material, but expressive: whatever the actual distribution of tangible or material benefits, certain kinds of classifications, by their very nature, communicate a social message of separation and segregation, which is inextricably connected with superiority and inferiority, exalting certain groups and demeaning others: separate is not, and cannot be, equal. When we consider sex discrimination under Article 15(1), therefore, the first question that we must ask ourselves is whether all sex-based classifications are at least presumptively discriminatory (they might still ultimately be constitutional if the State can justify them) – and if not, what is the basis for holding that certain classifications might not raise any constitutional concern of discrimination, even at the threshold level?

The idea and notion of “romantic paternalism” also comes up, the belief that women need special protection from immoral or corrupting influences, protection that could only be achieved by confining them to close spaces under surveillance and supervision. The bench in the case of Anuj Garg did not accept this argument to be constitutionally valid.

Our Nation, has without doubt, had a long and unfortunate history of sex discrimination. Such discrimination has traditionally been rationalized by the notion of “romantic paternalism”, which puts women in a cage and not on a pedestal. As a result of attitudes such as these, our statute books are increasingly becoming weighed down with stereotypical distinction between the two sexes. These statutory differences between the sexes contribute to the inferior legal status of the entire female class. The individual contributions and capabilities of women are completely disregarded solely based on the fact that they are the contributions of a female.

Instead of prohibiting women from employment in various spheres, such as bars, the State should put more focus on eliminating unequal consequences of sex differences by factoring in new ways. Ensuring the safety of women is the duty of the State which can lead to inspiring women in being more confident in discharging the duty freely in following to the requirements of the profession they wish to follow. Whereas, what Section 30 of the Punjab Excise Act does is detrimental and disadvantageous to women, and further suppresses women while also taking away their right to equality, when the State should be doing everything in their power to uplift women.

Conclusion

One of the most progressive judgments, Anuj Garg, to have come out of the Court which has had a long-lasting patchy record on gender equality, provides an important template upon which a progressive jurisprudence of gender equality can be built. A sex-based classification can no longer be justified under the anti-stereotyping principle laid down by this case, on the foundation of a blanket assumption of natural differences between men and women. The difference will have to be questioned, for us to understand where its roots lie in inherently perpetuated stereotypes of sex roles and differences that have become so embedded in our society that they appear natural. More importantly, tradition and culture that have been invoked historically to endorse great suppression, cannot constitutionally dominate how private, freedom of choice, and autonomy are to be understood.

On a conception, like one in Anuj Garg, provision like the restitution of conjugal rights, the marital rape exception , and others alike, that confine into place a culturally determined definition of what it is to be a man and a woman, must be interrogated on the criterion of constitutional values, and will not be further allowed to sustain norms that are conflicting with those values. The “separate sphere”, in other words, which has been the justification for great suppression and oppression, is no longer a valid argument. The essence of transformative constitutionalism through its guarantees of liberal-democratic values of freedom, choice, autonomy, non-discrimination, the Constitution must pursue to replace old norms, traditions, and practices of hierarchy, suppression and dominance that were socially or otherwise constructed identities, such as gender, religion and caste.

Through the deep foundation laid down by Anuj Garg, it is hoped that the Courts understand it and take it forward in future.