By Anupriya Dhonchak
In the last year, Indian women have been speaking out about their experiences of sexual harassment and abuse more than ever before as part of the global #Metoo movement. The movement has highlighted the abject failure of the androcentric ‘neutral’ state and societal institutions, which have long provided men the monopoly over ‘objectivity’. There is growing and predictable male anxiety with the umbrella nature of the movement to not just include experiences of sexual harassment, but all that contributes to it; i.e. a systemic culture of violence inscribed on women’s bodies by mutilating their subjective experiences into a male norm. We have set women up to fail within these institutions by using a male standard as the rigid reference, thereby ‘othering’ the female. Legal feminists, such as Martha Fineman, have cautioned against such gender-neutral models, which confine reforms in their ill-considered attempts to construct a more ideal society based on ‘formal equality’. This is especially pertinent in the Indian context of glaring gender inequality. According to the latest UN Gender Inequality Index, India ranks a dismal 127th out of 160 countries, reflecting inequality between men and women based on reproductive health, empowerment, and labour market participation.
I instantiate this through the male norm of an ideal university student, capable of meeting attendance requirements for his courses. The norm applies uniformly as a formal rule of law in India to women, and prevents them from taking university exams if they fail to fulfil minimum attendance requirements, even if such shortages are due to pregnancy. By contrast, many universities in the United Kingdom, including but not limited to LSE, UCL and University of Leeds, adopt a much more flexible and sensitive approach to ensure that female students are not disadvantaged due to maternity.
Indian University Attendance Requirements stacked against women
In India, the University Grants Commission (UGC) regulations govern attendance in universities established or recognised by the government. The Bar Council of India (BCI) Rules apply specifically to law colleges from among such universities. Minimum attendance requirements in Indian universities providing professional legal courses, to which the BCI rules apply, and non-legal courses governed by internal regulations of different universities in line with the UGC regulations, may prevent women from writing their exams or claiming their degrees. This rigid and androcentric academic framework refuses to accommodate women’s needs and distinct burdens.
It was argued by the petitioners in A. Arulin Ajitha Rani v. FTI, Tamil Nadu in 2009, that the denial of maternity leave to students, as distinct from medical leave, offends the provisions of the UN Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) and the Maternity Benefits Act, 1961. The Madras High Court dismissed the arguments holding that educational institutions stand on a different footing from companies. In the UK, similar arguments are precluded by Section 17 of the Equality Act, which expands the prohibition against maternity-based discrimination already existing in the workplace, to also include areas outside of it, including the higher education sector.
In India, a Delhi High Court decision in the 2010 case of Vandana Kandari vs. University of Delhi granted exception to two students who could not fulfil the BCI requirement of 66% attendance due to being in the advanced stages of pregnancy. However, the case was overturned by a Division Bench of the Court in 2011. The Bench held that such leniency could not be exercised in any case whatsoever. This position of the Delhi High Court has come to be regarded as settled law in subsequent decisions. The Delhi High Court in 2011 in Fahad Hassan vs Jamia Milia Islamia University, chided such women as ‘incorrigible students’ while holding that pregnancy could not entitle them any leniency in attendance requirements as it is not an unexpected medical condition based on the Division Bench decision in Vandana Kandari. The Kerala High Court in Jasmine VG v. Kannur University in 2016 prohibited a pregnant woman from writing her B.Ed. examination as she fell short of the minimum 75% attendance requirement as per course regulation. Similarly, the Delhi High Court in Ankita Meena v. University of Delhi in 2018 barred a second year law student from writing her semester examination for falling short of the minimum 70% attendance requirement, despite the fact that she could not attend most classes as she delivered a child during that semester.
No Reproductive Autonomy: The Production of the ‘Mother’
The judicial construction of pregnancy as a free and informed choice is completely divorced from Indian social reality. Indian women exercise little autonomy over reproductive decision-making and have limited access to contraceptives. At least 50% of Indian women are married before the age of 18 despite the Child Marriage Act, 2006 and only 8% of married adolescents currently use contraception. Marriage, as an exception to statutory rape in India, completely negates the sexual autonomy of married women in refusing to engage in sexual intercourse with their husbands. Furthermore, in patriarchal societies, there is a production of the ‘mother’ immediately when a female is born. This is because of tremendous social pressure on women to bear children in such societies, which define “woman’s nature” based on the ideals of marriage, dutifulness, subservience and nurturing. Any transgression is regarded as deviance, warranting social wrath and course correction to align with the male perspective of female nature and permissible behaviour.
Disparate impact as opposed to disparate treatment is a result of ‘unintentional’, ‘indirect’ or ‘negligent’ discrimination due to a seemingly 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 reinterpreting sex discrimination after decades of what Kannibaran calls, “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 to preclude not just formal but also substantive sex discrimination, which may be based on a ground 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. 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. However, 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. The Supreme Court’s refusal to accept the arguments in Javed and Rajbala, effectively disenfranchised women, an already marginalised group.
Rhe Supreme Court and 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 Art.21 of the Constitution through a range of judgments. The gender agnostic basis of attendance requirements fails to account for both the right to motherhood and the right to education. It imposes an unconstitutional condition upon women compelling them to forego one fundamental right for another. Pregnancy is a choice that involves at least two persons but the burden of it disproportionately falls upon women solely 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 unequal cases equally, thereby violating Article 14 of the Indian Constitution, which guarantees the right to equality.
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.
As Prof. 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 disproportionately impact them because such attendance 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.