In the matter Mamta Devi vs State of Himachal Pradesh and others (CWP No. 3100 of 2020), the Division Bench at Shimla has held that “The State cannot act in a misogynistic way, carving ways to debar compassionate employment to married daughters and such acts fall within the definition of discrimination based on sex, which is against Article 15 of the Constitution of India.” This remark was made by the High Court to allow the daughter’s plea seeking compassionate appointment in her deceased father’s position.

Mr. Maan Singh appeared for the petitioner and Mr. Hemant Vaid, Mr. Hemanshu Mishra (Additional Advocates General) and Mr. J.S Guleria (Deputy Advocate General) appeared for the State before the Bench comprising Justice Sureshwar Thakur and Justice Chander Bhusan Barowalia on October 28, 2020.

The Bench further added that, “If the marital status of a son does not make any difference in the eyes of law, then it is difficult to think, how marital status of a daughter makes such a huge difference in her eligibility. In fact, marriage does not have proximate nexus with identity and even after marriage, a daughter continues to be a daughter. Therefore, if a married son has right to compassionate appointment, then a married daughter also stands on the same footing and her exclusion does not have any plausible basis or logic, so her exclusion has no justifiable criteria.”

The court also made some crucial observations with respect to the policy of compassionate employment. It said, “The object of compassionate employment is not only social welfare, but also to support the family of the deceased government servant, who dies in harness, and by excluding married daughter(s) from the sweep of the family, the real purpose of social purpose cannot be achieved.”

“The aim and object of the policy for compassionate appointment is to provide financial assistance to the family of the deceased employee. In the absence of any male child in the family, the State cannot shut its eyes and act arbitrarily towards the family, which may also be facing financial constraints after the death of their sole bread earner”, it added further.

The Bench also rejected the submission made by the Respondent State that the compassionate employment policy does not discriminate against married daughters and the solitary object and rationale behind the same is that married daughters are no more dependent on the employee who died in harness. It said, “The policy of providing compassionate employment, which is in vogue, evidently provide a criterion of dependency on the deceased government servant, now, it is difficult to understand that married sons remain dependent and dependency of married daughters ceases with marriage, hence forming an exception.”

The court gave a twin fold hypothetical rationale behind such an exception. It said, “This exception may have hypothetical rationale, which though not offered, behind depriving employment assistance to a married daughter and it can be twin-fold, viz., (i) with marriage, financial dependency of a female shifts from her parents to her husband and his family; and (ii) least or no expectation from a married daughter to look after her surviving mother/father and siblings, who have chosen to give ‘No objection’ in favour of a married daughter, for her’s being given employment on compassionate grounds.”

The court opined that both these rationales failed to “constitute a valid and viable basis depriving employment on compassionate grounds to married daughters, especially when daughters, married or unmarried have been given all legal rights, as available to sons (married/unmarried), after the death of parents.” The real test of dependency, according to the court is when an applicant seeking for compassionate employment was dependent on the parent “prior to his/her demise.” Thus, any other condition debarring a married daughter “is not only against the scheme of Constitution of India, but also against the dependency test.”

Background

The petitioner’s father was a class IV employee in a District Ayurvedic Office, Kullu who died before retirement. As the entire family was financially dependent on the deceased, the petitioner who is M.A. (Hindi) and has a diploma in Computers, applied on compassionate grounds. But her application was rejected on the basis that this policy of employment assistance was not granted to “married daughters of the deceased Government employee.”

The court allowed the petition filed and directed the office to provide her a compassionate appointment if she otherwise fulfils other required eligibility criteria under the policy.

Similar orders by High Courts

The Chhattisgarh High Court, in Smt. Sarojni Bhoi vs State of Chhattisgarh & Ors (WPS No. 296 of 2014) allowed the Writ petition moved by a married daughter of a deceased and directed the Government to reconsider the claim of petitioner for being appointed on compassionate grounds afresh. Justice Sanjay K. Agrawal said that a policy of the State Government disqualifying a married daughter and excluding her from consideration apart from being arbitrary and discriminating is a retrograde step of the State Government as a welfare State.

“A daughter even after marriage remains the daughter of her father and she cannot be treated as not belonging to her father’s family. The institution of marriage is an important and basic civil right of man and woman and marriage by itself is not a disqualification and impugned policy of the State Government barring and prohibiting the consideration of the married daughter from seeking compassionate appointment merely on the ground of marriage is plainly arbitrary and violative of constitutional guarantee envisaged in Article 14 (equality before law), 15 (discrimination against all grounds) and 16(2) (discrimination on all grounds in an office) of the Constitution of India being unconstitutional”, the court held.

In Joint Registrar/ Managing Director, Virudhunagar District Central Co-operative Bank Ltd vs P Asothai (W.A. [MD] No. 122 of 2017), the Madras High Court directed the Government to offer the daughter compassionate employment in place of her deceased father and also took note of the role played by women in the society. “Women are not just the procreators of the clan, but have been welcomed to become that reliant person who can take care of her own family and her newfound family. ‘She’ have risen from dependents to nurtures of relationship, and for a woman to take care of her own parents is not a norm, but a welcome trend in society as they are doing an impressive diligence at it”, the Division Bench of Justices R.Subbiah and J.Nisha Banu held.

They further added, “The gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance and therefore, our constitution has not discriminated male from female and any order passed discriminating male from female will be only against the Constitution and it cannot be sustained.”

Apex Court ruling

The Supreme Court has also opined on this theme significantly holding that marriage cannot be a ground for not granting compassionate employment to women. In Miss C.B. Muthamma v. Union of India 1979 SCC (4) 260, the Supreme Court said that no discrimination can be made in public employment on gender basis as Article 16(2) of the Constitution of India clearly provides that no citizen shall on the ground of sex be ineligible or discriminated against in respect of any employment or office under the State. In this case the petitioner was a senior member of the Indian Foreign Service who was denied promotion to Grade I of the Indian Foreign Service illegally and unconstitutionally.

“If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action”, it remarked.

On the issue of whether pension and other welfare schemes would interfere with providing compassionate employment, the Supreme Court in Balbir Kaur vs Steel Authority of India Ltd 2000 (6) SCC 493 held that, “Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump sum amount being made available to the family – this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earners, but that would undoubtedly bring some solace to the situation.” So, as a rule welfare schemes and benefits cannot substitute for employment.

The Himachal Pradesh order may be read here: 

Related:

Women have right to stay in the marital home under domestic violence laws: SC
How to get India’s women working: First let them out of the house! 

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Reading the adultery judgement

Image courtesy: Latest Laws

If we can learn one thing from the judgements that recently struck down section 497 of the Indian Penal Code which considered adultery a criminal offence, section 377 which prohibited ‘carnal intercourse against the order of nature’, and the judgement that established right to privacy as a fundamental right of the Indian Constitution, it is that law can no longer be seen as the perfect embodiment of justice. Laws often deny justice to those who do not adhere to the majoritarian ideals of our society. The judgements demonstrate that justice often lies at the threshold of law. Different people negotiate that threshold in different ways, thereby constantly altering the notions of legality and right. Our regressive and patriarchal Indian society has, since time immemorial, ensured that negotiating the threshold between justice and law proves to be difficult and sometimes nearly impossible for some – namely, women, dalits, Muslims and the LGBTQ community of our country, among others. By declaring the sections unconstitutional, the judgements upheld the values enshrined in the Indian constitution – the values of our right to equality and the right to personal liberty, autonomy and dignity – values that form an indivestable core of our very being as citizens. As advocate Maneka Guruswamy rightly notes, ‘The beauty of the Constitution is that it compels us to unlearn our prejudices.’ So, in order to understand how it compels us to unlearn our longstanding prejudices, especially those exposed in the judgement that struck down colonial-era law that criminalised adultery, in the following section, we attempt to closely read the judgement. 

What is Section 497?
Section 497 of the Indian Penal Code states: 
 

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

In other words, it would penalise a man for having sex with the wife of another man. However, the man can be exonerated if the sexual act is performed with the ‘consent’ or ‘connivance’ of the husband. The provision exempts the wife from any kind of punishment and emphasises that she should not be treated as an abettor. However, the same section does not have any provision to allow the wife to charge adultery or file a complaint against her ‘adulterous husband’.

The judgement not only questions adultery but raises several other pertinent questions and issues that we, as citizens, should take cognisance of. It emphasises sexual autonomy, highlights the strength of the transformative nature of our constitution, questions the sanctity of the age-old institution of marriage, regressive family ‘values’ and ideas of conjugality, and upholds right to privacy among other things. The overall background of adultery provisions and the state’s rationale for upholding the same betrays notions of pervasive gender biases and systemic discrimination. The judgement decriminalises consensual sex between two consenting adults while retaining adultery as a valid reason or ground for seeking a divorce. If any particular act of adultery leads to the suicide of the aggrieved spouse, such cases would be tried for abetment of suicide under section 306 of the IPC. Misra notes, ‘There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage’ before emphasising that the pivotal question for him remains that whether ‘adultery’ can be treated as a criminal offence. 

The Law and its Colonial History
On 27 September 2018, a five-judge bench of the Supreme Court of India comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra 2018 struck down the 158-year-old archaic law, deeming it unconstitutional. They further added that the section is ‘arbitrary and violative of Article 14 (right to equality) of the Constitution.’ 

CJI Misra notes that section 497 reinforced the long-standing prejudice about women’s subordination to their husband and violated their right to dignity, which is, in turn, seen as a violation of Article 21 of the Indian constitution – Justice Nariman draws from the Preamble to the Constitution of India and notes that the ‘dignity of the individual is a facet of Article 21 of the constitution.’ He further notes that section 497 as a ‘statutory provision belonging to the hoary past… demeans or degrades the status of a woman which falls foul of modern constitutional doctrine.’ 

Justice Indu Malhotra delves into the history of the legislation to define the regressive notion adultery that emerged from the historical context of Victorian morality, ‘where a woman is considered to be the property of her husband; and the offence was committed only by the ‘adulterous man’. The ‘adulterous woman’ could not be proceeded against as an abettor, even though the relationship was consensual because women were not understood as individuals in their own right but one who belonged to another man.’ Drawing from Uma Chakravati’s Gendering Caste Through a Feminist Lens(2003), Justice Malhotra notes,
 

Indo-Brahmanic traditions prevalent in India mandated the chastity of a woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of the male bloodline. The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her purity in order to ensure the purity of his own bloodline.  

The first draft of the Indian Penal Code brought out by the Law Commission of India in the year 1837 did not include adultery as a criminal offence because Lord Macaulay was of the opinion that ‘adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.’ But the second report reinstated adultery as a criminal offence because the law commissioners feared that in the absence of a law, the ‘native’ husband, in order to avenge his wife’s betrayal, would want to take matters into his own hands and inflict greater violence on the wife and the man. In order to pre-empt such violence among the ‘natives’, adultery was included as an offence. They also reasoned that adultery, if not treated as a criminal offence, may give sanction to immorality. The colonial nature of the law is visible in their perception of the Indian society as inherently ‘immoral’ comprising hapless women who need to be saved from brutish native men. The following excerpt from the second report where they argue against the punishment of women for the offence will prove this point:
 

… The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still young. They are often neglected for other wives while still young. They share the attention (sic) of a husband with several rivals… We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy… 

In a bid to reduce the ‘suffering’ of women, they took away their right to speak and assert their singular autonomy in instances of ‘adultery’.

Transformative Constitutionalism: Towards a Progressive Jurisprudence upholding Sexual Autonomy
With respect to the concern that the striking down of section 497 might pose a threat to the moral sanctity of the institution of marriage, Misra notes, 
 

… a constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach… To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men…

Justice D Y Chadrachud, on the other hand, refers to the recently established fundamental right to privacy, foregrounds the question of sexual autonomy. He notes that ‘the right to sexual autonomy and privacy has been granted the stature of a Constitutional right.’
He further adds that the law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is not regarded by the law as a person whose agency and dignity are affected. The rationale behind this is that a single woman (unlike a married woman) is not the ‘legal’ property of (another) man. In saying so, he emphasises the necessity to recognise and respect the autonomy, and more importantly, the sexual autonomy of a married woman. The most direct corollary of this is the recognition of the fact that consent to marry does not equate consent to sex, and the acknowledgement of sexual violence in marriage, especially marital rape. 

In an argument that is markedly different from the other judgements, Chandrachud highlights the discursivity of law. He points out that law is not bereft of the society but the two are, as he notes, “intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law. The law on adultery cannot be construed in isolation…every legislative provision must be understood as a ‘discourse’ about social structuring.’ He draws from Spivak (1990) and writes, ‘The idea of neutral dialogue is an idea which denies history, denies structure, denies the positioning of subjects… In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far.’ 

He emphasises that the absolute recognition of the role of law and society in the lives of women will also to prevent patriarchal social values to permeate legal norms in order to further obstruct the exercise of constitutional rights by the women of our country. He writes that the adultery provision discriminates on grounds of sex, reinforces stereotypes about women’s sexual agency, and gender roles within the family. 

Moreover, he puts forth some important remarks about the public-private divide in constitutionalism, opening up the known ‘private sphere’ of the family for scrutiny. One must necessarily apply constitutional norms to and within the family structure, he adds, ‘therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny.’ He adds that the enforcement of forced female fidelity by curbing sexual autonomy is an affront to the fundamental right to dignity and equality. 

Justice Indu Malhotra further adds that the ‘time when wives were invisible to the law and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.’ The law prevents married women’s right to prosecute for marital infidelity, which, according to Justice Malhotra is not only discriminatory against women but also violative of article 14 ‘which irradiates anything which is unreasonable, discriminatory, and arbitrary.’ Section 497 fails to consider both men and women as equally autonomous individuals in society and perpetuates the oppression of women. The judges struck down section 497 arguing that it is a form of “protective discrimination” and therefore, unsustainable in law, a law violative of Articles 14, 15 and 21 of the Constitution. 

Can the (married) woman speak?
If there is one lesson to be learnt from Spivak’s well-known, but often misread essay ‘Can the Subaltern Speak?’ where she writes about the mysterious circumstances of Bhuvaneshwari Bhaduri’s death by hanging, it is to pay attention to the performative force of the question of the essay’s title and to resist the urge to immediately establish answers. This important lesson can further help us make sense of this colonial-era law and interpret the judgement that struck down this law, more accurately. In a bid to save women from native men, the law made it impossible for women to have their say and assert their singular autonomy by first speaking about their experience. In their defence of women and their argument against the offence of women, the colonial law commissioners ended up reinforcing the same patriarchal structure in the legislation that had kept them from speaking in the first place. One may argue that the decision to strike down section 497 is a judgement informed by the performative force of the question ‘can the (married) woman speak?’. It compels us to forsake our neutral view-point towards history where women have been denied the right to speak and to assert their autonomy; think of answers as possibilities and promises for the future of Indian women. 

Abhilasha Chattopadhyay is enrolled as a PhD research scholar in the Sociology program, Ambedkar University, Delhi.

Sneha Chowdhury is a PhD research scholar in the Centre for English Studies, JNU, New Delhi. 

First published on Indian Cultural Forum

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