TRAJECTORY OF CASES TO DETERMINE WHAT ARE THE EMPLOYMENT OPPORTUNITIES FOR WOMEN IN THE PUBLIC SPHERE by -Anushka Rohilla
Until now, the value of the work that women undertake or the services that they provide has not been adequately recognized. Because India is such a complex society, there is no single generalization that can be applied to all of the country’s diverse geographical, religious, social, and economic groups. Nonetheless, some general conditions that Indian women face have an impact on their economic engagement. This research will largely focus on the progression of five major instances, which provide a comprehensive picture of how courts have construed various statutes to expand or contract the horizon of public employment options for women through time. An investigation of article 14 and its various interpretations will be conducted to assess the legitimacy of the circumstances restricting women’s ability to work outside the home. The main purpose of the research paper is to examine the logic used by courts in making various decisions, as well as to establish the status of women in Indian culture and the career prospects available to them. The study will also look at the definition and concept of equality, as well as its positive and negative aspects, as well as the Rule of Law, to better understand the court rulings in various cases. This study will not only present a full timeline of all five instances but will also examine the judges’ interpretations and reasoning.
In India, gender equality has long been a difficult topic. Women and the third gender are always struggling and fighting in this patriarchal culture. Gender norms in the workplace exacerbate gender discrimination and create issues for third gender and women. The trajectory here examines how courts’ interpretations have changed through time, as well as how the patriarchal mindset of judges in the courts has undergone major transformations in light of various interpretations of Articles 14 and 15, and they have interpreted provisions of various legislations in such a way as to place a responsibility on the state to ensure that women feel safe and secure to work outside their four walls at any time and in any place.
1. EQUALITY UNDER ARTICLE 14
- ARTICLE 14 STATES
Article 14 ensures Equality before Law and Equal Protection of Law to everyone within the territory of India. Article 15 prohibits the state from discriminating based on sex, race, religion, etc.2 Article 14 is the genus and Article 15 forms its species, therefore they are commonly dealt with together in cases of discrimination.
It is declared in Article 14 that ‘the State shall not deny to any person equality before the law or equal protection of law within the territory of India.’ 3Equality before the law and equal protection of the law is enshrined in the constitution. They attempt to achieve equality of status while guaranteeing fundamental rights. Although the two expressions appear to be identical, they do not have the same meaning.
- EQUALITY BEFORE LAW
This is a negative concept and ensures that there is no special privilege in favour of one person, all are subject to ordinary law of land, and no person, of whatever rank and condition, is above the law. It says that the application of laws is to all the subjects equally irrespective of their positions’ differences and hence, is a broader concept.
· Origin –
The term has its origin in Britain and implies an absence of some special privileges. This can be by the reason of birth, religion, sex, caste, etc, and by the ordinary law in favour of persons and all the equal subjects of classes.4
· Exceptions to this –
But this concept is not absolute as there are exceptions.
- Example 1 –Making a law applicable to a single entity. Suppose there is an industry A which is about to be nationalized and hence, a law is made in its Now, this Industry can be treated singularly only if circumstances are such as given above. Here, there is a demarcation of those bodies being nationalized, and a law is made in their favour.
- Example 2 – The President of India is elected by the electoral college but the process5, qualifications, 6are contained in the Constitution and additional arrangements to be made by the parliament. Presidential and vice-presidential acts 7and rules came into existence dealing with their appointments specifically and not treating them at par with other ordinary people or other officials. The President’s role in the parliamentary form of Government is nominal and hence, he/she enjoys immunity as the highest
- Other examples can be – foreign diplomats enjoying immunity from the country’s judicial process; Art. 361 extending immunity to the President of India and the State Governors8; public officers and judges also enjoying some protection, and some special groups and interests, like the trade unions, having been accorded special privileges by 9
- AV Dicey – Rule of law arises from this concept and is a part of constitutionalism which intends to control the government (created to serve the people’s interests) – rule of law says that if you are the government, you have to abide by laws, no one is above law – he categorized the rule of law to 3 points –
- Supremacy of law – no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the
- Equality before law – not only that with us no man is above the law but that here every man whatever be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals
- The predominance of legal spirit – We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; when the constitution is with us, there are legal principles/judicial decisions which uphold constitutional principles which are applied in private disputes for adjudication, to those situations and when the same principle that is pre-determined is applied, a precedent is established, setting the idea of equality.10
· The basic features of the Equality Before Law under Rule of Law provides for
- Law does not recognize any special rights for any individual or group of
- Law does not recognize any distinction between one individual and the other based on religion, race, sex,
- None is punished without proper
- All will be tried by the same court under the same
- The rule of law does not give scope to absolute and arbitrary powers to the 11
The idea of abstaining from creating any distinction between persons while applying ordinary
laws in Article 14 draws great similarity to the features advocated under Rule of Law by AV Dicey
ii. EQUAL PROTECTION OF LAW
Overlapping with equality before the law, equal protection of laws is not a very distinct but a positive concept. This doesn’t mean that every law should have universal application within the country irrespective of differences of circumstances rather it means that application of same laws alike and without discrimination to people who are similarly situated/circumstanced. There is no unnecessary discrimination but only wherever necessary. This concept is narrower than equality before the law as casts a positive obligation on the state while at the same time similarly placing the people to treat them similarly.
· Origin –
The term has its origin from America and aims at equal treatment in identical situations. In other words, the country’s President or Prime Minister should be treated in the same way as any other citizen in terms of the law, with no special advantages,12 so, all the examples in exceptions seen above under the equality before law concept fail to apply here.
· 14 guarantee equal protection of laws and they are:
- This does not imply that the laws must be general or that they must apply to everyone, implying that the same law must apply to
- It does not evaluate achievement or similar conditions. Different classes have different needs that necessitate different
- Different rules for different places and lawful control policies adopting laws are in the best interest of the state for safety and
- Inequality would result from the same treatment in unequal 13
· Application of this concept –
Article 16 14– Equality of opportunity in matters of public employment. Article 16 is one of the species of Article 14 which forms the genus. It works on the fundamentals of equality and hence has an inherent application of Article 14 in its provisions. After analyzing the two subclauses, the observations we can make are –
Article 16 (2) – “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State15.”
Sub clause 216 is based on the concept of Equality before Law to maintain the essence of equal opportunity; it prevents the state from discriminating against individuals on numerous grounds. It caters to people of many religions, races, and genders…. while providing an opportunity for public employment on an equal footing
Article 16 (4) – “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”17
Sub clause 418 is based on the concept of Equal Protection of Law because it places
an explicit responsibility on the state to provide conditions that allow backward classes to participate in public employment in the same way that others do. It serves as an exceptional provision in this case because it treats persons from such classes differently than other people and allows for special treatment because these classes are not situated in the same way as the country’s other non-backward classes. They are un-equals in the eyes of the law, and the law allows un-equals to be treated differently.
As a result, we conclude that the state’s application of Article 14 is a mix of preventative measures and affirmative action. When no one is placed in the same position, it is the responsibility of the law to ensure that everyone is placed in the same position to compete with everyone, and therefore strives towards real equality. It is built on the principle of equity rather than equality. Using these factors as a guide, Indian courts have devised two methods to evaluate if state classification passes the Article 14 test.
- TWO-PRONGED TEST UNDER ARTICLE 14 (REASONABLE CLASSIFICATION TEST)
The equal protection of laws guaranteed by Article 14 propounds that from the different nature of society there should be different laws in different places. Thus, what Article 14 forbids is class legislation but it does not forbid reasonable classification. Article 14 applies where equals are treated differently without any reasonable basis. Class legislation is that which makes improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number all of whom stand in the same relation to the privilege granted such that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege. This test was first laid down in the State of West Bengal v. Anwar Ali 19case and then affirmed in Ram Krishna 20and Saurabh Choudhary v. UOI21
- Test of Intelligible Differentia – There has to be an intelligible differentia between the persons or the things which form part of the group to which law applies and those people who are left out of the group. This means that there has to be a valid and defined reason behind keeping certain individuals from a particular
- Test of Rational Nexus – once it has been proved that there is, a valid reason, then it has to be proved that there is a reasonable nexus between the reason behind the classification (basis) and the objective that is sought to be achieved through such classification
Example – Taxation is based on income slabs, which means that not everyone pays the same amount of tax. However, this does not contradict Article 14 because the classification was founded on the rationale that India is economically heterogeneous, and hence not everyone can afford to pay the same amount of tax. It must be tailored to each individual’s capabilities. It also has a link to the state’s goal of classifying persons based on their potential earnings for the sake of national progress and well-being.
Case laws to exemplify this Reasonable Classification Test –
- STATE OF WEST BENGAL v. ANWAR ALI SARKAR, 1951 – 22 FACTS OF THE CASE – Section 5 of The West Bengal Special Courts Act, 1950 which allowed Special Courts to try certain criminal offenses according to the directions of the State Government in the name of the speedier trial was challenged as being violative of Article 14.23 JUDGEMENT OF THE CASE – The Supreme Court invalidated the Section as being violative of Article 14. Even though courts had been following the reasonability criterion, in this case, it laid down two principles for satisfying classification under Article 14 –
- The classification test must be founded on intelligible differentia which distinguishes those that are grouped from others who are left out of the group
- The differentia must have a rational relation to the object sought to be achieved by the Justice Harris CJ using the Reasonable Classification Test observed that although the need for a speedier trial than what is possible under the procedure by Civil Procedure Code 24might form the basis of reasonable classification, it vests in the State government an absolute and arbitrary power to refer to special courts for trial of “any case” as it may deem fit. It did not establish any norms or guidelines for the classification of such offenses, which could result in a large number of classifications even if they do not last a long time. Every categorization must have a precise basis and explanation under Article 14, but the requirement of a swift trial was too broad and uncertain a criterion in this case. When the state, using its arbitrary power, decides to designate a certain kind or category of offense and thereby goes against equality, the link with its goal may be damaged.25
B. RAM KRISHNA DALMIA v. SR TENDOLKAR 1958 – 26
FACTS OF THE CASE – Section 1(3) of the Commissions of Inquiry Act, 1952 was challenged based on Article 14. A notification based on the section could be delivered by the executive to constitute a commission of inquiry to probe into the affairs of certain companies which the govt. believed to be fraught with irregularities. The petitioners contended that this amounted to discrimination as it singled out these companies from the rest of the companies and hence violated Article 14.
JUDGEMENT OF THE CASE – Relying on the Reasonable Classification Test, the court found that classifying some corporations but not others was appropriate since it was based on allegations that these companies had engaged in improper business practices based on papers submitted to the government. The act’s goal was to investigate a specific subject of public interest, therefore distinguishing these corporations with a negative track record was critical for the state and has a fair connection to the delegated section’s goal. As a result, it did not violate Article 1428
C. DS NAKARA v. UOI 1982 – 29
FACTS – Petitioners had retired in 1972 and in 1979, under the liberalized pension scheme which was aimed at ensuring the cause of pensioners all over the country, a new statute was enacted where pension was increased and was made available to the only ones who retired after the 1979 but not to those who were retired before the above-mentioned date.
ISSUE – Whether differential treatment to pensioners related to the date of retirement contained the element of discrimination liable to be declared unconstitutional as being violative of Article 14?30
JUDGEMENT – The order was violative of Article 14. The court determined that all pensioners form a class and that when the State decided to liberalize the pension scheme to expand social security in old age to government employees, it could not give the benefits of liberalization only to those who retired after a certain date and deny them to those who retired before that date.
This classification, which divided the class into two subgroups based on retirement age, hadn’t any intelligible principle and was both arbitrary and unreasonable. Since the state’s goal in liberalizing the pension was to increase retired people’s economic capacity in light of the cost-of-living index’s constant rise and the rupee’s declining purchasing power, it can’t be said that it was only necessary for those who would retire after the specified date but not for those who had already retired. As a result, it lacked the criterion of plausible connection with the order’s goal.31
The order was found to violate Article 14 because it failed to meet the twin criteria of comprehensible differentia and reasonable connection.
iv. TEST OF ARBITRARINESS
This test is used alongside the Reasonable Classification test and works on the principle of striking down any form of Arbitrariness in State Action. Arbitrariness is the quality of
1 Student at National Law University, Jodhpur
2 The Constitution of India, 1950, Art 15
3 The Constitution of India, 1950, Art 14
4 Diva Rai, ‘Reasonable Classification and its Validity under Article 14’ (iPleaders, 22 May, 2019) < https://blog.ipleaders.in/reasonable-classification-and-its-validity-under-article-14/ > accessed 6 December, 2021
5 The Constitution of India, 1950, Art 55, Art 55 (3); Subodh Asthana, ‘Election of President of India’ (iPleaders, 5 August 2019) < https://blog.ipleaders.in/president-elections-india/ > accessed 6 December, 2021
6 The Constitution of India, 1950, Art 58; Ibid
7 The Presidential and Vice-Presidential Election Acts 1952
8 The Constitution of India, 1950, Art 361; The Constitution of India, 1950, Art 361(A)
9 The Trade Unions Act 1926; Rebecca Furtado, ‘What Every Indian Needs to Know About Trade Union Related Laws in India’ (iPleaders, 16 February, 2017) < https://blog.ipleaders.in/what-every-indian-needs-to-know-about- trade-union-related-laws-in-india/ > accessed 6 December, 2021
10 Alok Kumar Yadav, ‘Rule of Law’  4 (3) International Journal of Law and Legal Jurisprudence Studies < http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf > accessed 8th December, 2021
11 Preethi Ramanujan, ‘Development of the Rule of Law’ (Legal Service India E-Journal < https://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html > accessed 8th December, 2021
12 Supra Note 2, at 2
13 Supra Note 2, at 2
14 The Constitution of India, 1950, Art 16
15 The Constitution of India, 1950, Art 16(2)
17 The Constitution of India, 1950, Art 16(4)
19 State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75, 1952 SCR 284
20 Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar 1958 AIR 538, 1959 SCR 279
21 Dr. Saurabh Choudhary v. Union of India AIR 2004 SC 2212
22 Supra Note 14, at 7
23 Vaibhav Sharma, ‘Brief Case Analysis of State of West Bengal v. Anwar Ali Sarkar’ (Lawyers Club India, 19 December, 2016) < https://www.lawyersclubindia.com/articles/brief-case-analysis-of-state-of-west-bengal-v- anwar-ali-sarkar-7754.asp > accessed 8th December, 2021
24 Civil Procedure Code, 1908; The Constitution of India, 1950, Art 21
25 Ibid; State of West Bengal v. Anwar Ali Sarkar (Indian Kanoon) < https://indiankanoon.org/doc/1270239/ > accessed 8th December, 2021
26 Supra Note 15, at 7
27 Ramya Singh, ‘Case Analysis: Ram Krishna Dalmia v. Justice Tendolkar’ (Pro bono India) < https://probono- india.in/Indian- Society/Paper/293_CASE%20ANALYSIS%20BY%20RAMYA%20SINGH%20GROUP%202%20(2).docx>
28 Ibid; ‘Ram Krishna Dalmia v. Justice Tendolkar’ (Indian Kanoon) < https://indiankanoon.org/doc/685234/ > accessed 9th December, 2021
29 DS Nakara v. Union of India 1983 AIR 130, 1983 SCR (2) 165
30 Larika Khandelwal, ‘DS Nakara v. Union of India’ (Indian Law Portal, 18 July, 2020) < https://indianlawportal.co.in/d-s-nakara-v-union-of-india/ > accessed 9th December, 2021
31 Supra Note 29, at 9; ‘DS Nakara v. Union of India’ (Indian Kanoon) <https://indiankanoon.org/doc/1416283/ >