40 Pages Posted: 6 Sep 2017
Date Written: September 3, 2017
In this paper, I will examine sex discrimination under the Indian Constitution, through the lens of the judgment of the Supreme Court in Anuj Garg vs Hotel Association (2008). I will begin by excavating the sparse text of Article 15(1) of the Constitution, and highlighting the many potential meanings attributable to words such as “discriminate”, “grounds”, “only”, and “sex” (I). I will then examine the history of Indian sex discrimination jurisprudence in the six decades leading up to Anuj Garg. This history, I will argue, can broadly be divided into two intellectual traditions. I will call the first the “formal reading.” The formal reading justifies differential treatment of men and women on the basis of presumed “natural differences” between the sexes, and also holds that discrimination results only from conscious, hostile intentions of lawmakers. Set against this approach is what I call the “transformative reading”. The transformative reading rejects the notion of “natural difference”, and understands discrimination as a product of social, economic, and cultural structures and institutions that create “patterns of... exclusion”, rather than of individual hostile intentions. The judgment in Anuj Garg – which applied what I will define as “the anti-stereotyping principle” to sex discrimination claims – is the culmination of this second tradition (II).
In the third section, I will trace the roots of this anti-stereotyping principle to the American suffrage movement, and the rejection of a social and political consensus that divided the world into two “separate spheres” – a public sphere to be occupied by men, and a private sphere that was the domain of women (III). I will then argue that this idea of separate spheres – with a few important differences – was prevalent in the colonial Indian polity as well (IV), and was itself challenged by the political movement for women’s right to vote, a movement whose vision triumphed with the framing of the Constitution (V). Consequently, Anuj Garg was correct in making anti-stereotyping, and a rejection of the conception of “natural differences”, the basis of its judgment. I will conclude by discussing the transformative potential of the reasoning in Anuj Garg for sex discrimination jurisprudence in the years to come (VI).
Keywords: Constitution of India, sex discrimination, equality
Suggested Citation: Suggested Citation
Bhatia, Gautam, Sex Discrimination and the Anti-Stereotyping Principle: Anuj Garg vs. Hotel Association of India (September 3, 2017). Available at SSRN: https://ssrn.com/abstract=3031374