National Law University, Delhi
Editors Note: This is the second of two posts on the Androcentric attendance requirements in India. The second part will be published on November 16. Part I can be read here.
Disparate impact as opposed to disparate treatment is a result of ‘unintentional’, ‘indirect’ or ‘negligent’ discrimination due to a facially neutral law that disproportionately impacts a protected group. Article 15 of the Indian Constitution prohibits discrimination based on sex inter alia other grounds. Legal feminists have argued for critical contextual engagement beyond the confines of rigid textualism to recognise women’s right against indirect sex discrimination under Article 15(1). Recently, the Supreme Court in four concurring opinions in Navtej Johar, decriminalised consensual same-sex relations in India by transformatively interpreting sex discrimination under the Constitution after decades of judicial meanderings in patriarchal thickets. Justice Chandrachud reasoned that what was important was the effect of the law upon those who were subject to it and not the intention of the legislature. This was to preclude not just formal but also substantive sex discrimination which may be based on a ground in addition to but derived from sex.
Facially neutral laws disciplining pregnancy penalise women for decisions they have little control over as was argued by the petitioners in Javed vs. State of Haryana. The provision prohibiting anyone from holding public offices in Panchayats in Haryana if he/she bore more than two living children was challenged in this case for its disparate impact on women because of their lack of reproductive autonomy. The Supreme Court held that a man forcing his wife to have a third child will himself also get disqualified, so there is no disparate impact conveniently ignoring that a woman may wish to stand for such elections independently of the desires of her husband to contest. Similarly in the case of Rajbala, women without certain educational qualifications were barred from contesting Panchayat elections in Haryana. The goal to incentivize education in that case was commendable, just as increasing academic discipline is for the present argument, but its effect was to disproportionately deprive women of the opportunity to empower themselves through decision making in local self-government based on their lack of access to educational opportunities. This lack of access became a cause and effect of structural patriarchy and poverty leading to the entrenchment of social inequalities. The Supreme Court refused to accept these arguments and thus, effectively disenfranchised the already marginalised.
Compassion and Sympathy
Indian legal feminist Usha Ramanathan argues based on a series of judgements that the Indian judiciary’s compassion and sympathy lie with its expectations of what a Reasonable Man would do. Indian Courts have observed that they cannot jeopardise the rule of law out of compassion and sympathy for litigants who would have to repeat another year due to marginal shortages in attendance. However, even the lip service of compassion and sympathy in such cases is based on the shortages being marginal and not the gendered reason for such shortages in case of pregnant women.
India has ratified the CEDAW and cited its provisions in various judgments. Article 11(2) of the CEDAW enjoins state parties “to prevent discrimination against women on the ground of marriage or maternity”. Article 25(2) of the Universal Declaration of Human Rights provides that “Motherhood and childhood are entitled to special care and assistance.” As per the Indian Supreme Court in MCD vs. Female Workers, Article 42 of the Constitution provides for "maternity relief” as well as securing "just and humane conditions of work" as an anvil to judge the legality of administrative action. It observed that according to the Maternity Benefit Act, 1961 a working woman is to be provided all facilities “in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear, of being victimised for forced absence during the pre or post-natal period." The Supreme Court and the Delhi High Court have recognised pregnancy as a matter of fundamental choice, part of personal liberty under Art.21 in Suchita Srivastava and Inspector Ravina vs. UoI respectively. Education is a significant leveller of structural inequalities and the Supreme Court has recognised the right to education as a part of the right to life under Article 21 of the Constitution through a range of judgments. The gender agnostic case for academic rigour forming the basis of attendance requirements fails to account for both the rights to motherhood and education as human rights of global and national recognition. It imposes an unconstitutional condition upon women compelling them to forego one fundamental right for another.
Further, pregnancy is a choice that involves at least two persons but the burden of it disproportionately falls upon women only because of their ‘sex’. By failing to classify men differently from women who may not be able to meet the gender-neutral attendance requirements due to pregnancy, the rules for minimum attendance treat unequals equally and violate Article 14 of the Indian Constitution which guarantees the right to equality. As Prof. Amita Dhanda notes, “pregnancy affects women in different ways and must be accommodated in an academic session if the student wants.” Failure to do so is not to deprive women of the privilege of compassion or sympathy but their fundamental right against sex discrimination under Art.15(1) of the Indian Constitution. Following from the ambitious and long overdue promise of Johar, it is pertinent to ensure that pregnant women have a right to exemption from androcentric attendance requirements that disparately impact them because such shortages are based on maternity, a factor directly derived from their sex. Penalising women for falling short of these requirements due to maternity constitutes sex discrimination, violates the right to equality and reduces Johar to a parchment decree.
Anupriya Dhonchak is a third-year student at National Law University, Delhi. She has been a research assistant to Adv. Pratiksha Baxi and a researcher at the Centre for Constitutional Law, Policy, and Governance, NLUD.
Suggested Citation: Anupriya Dhonchak, ‘Part II: Androcentric University Attendance Requirements in India: Is there Hope for the Future’ IACL-AIDC Blog (16 November 2018) https://blog-iacl-aidc.org/blog/2018/11/13/part-ii-androcentric-university-attendance-requirements-in-india-is-there-hope-for-the-future