When Neutrality Masks Inequality

Reflection on the current discourse surrounding feminist interpretations attached with the Indian constitution proffers an inkling of cherry-picking aspects on which feminist analysis can even be placed on, constitutional concepts like fundamental rights are often viewed from the feminist lens, which lends an important but often redundant insight into the mechanisms of these fundamental rights in isolation as well as in regard to the society. This article posits a feminist understanding to constitutional devices which do not necessarily deal with rights of women in terms of ideals like equality or what has been referred to as a ‘dignified life’ but rather through the lens of policy making and governance aided by the constitution. Essentially what it does is, it ameliorates the subaltern’s position through constitutional aspects which govern policy making and implementation instead of following the route which fundamental rights discourse takes.^[1] Even in the broadest definition of the term "constitutional" which goes beyond the legal document to include institutions of governance and relationships between the citizen and the state, gender is rarely mentioned as a factor to consider, let alone as a lens through which to view constitutional design generally.^[2] The protection of reproductive rights, gender electoral quotas, and other rights related to gender equity are also clearly constitutional issues that have been incorporated into the constitutions of many nations. Though the practical (as opposed to conceptual) significance of gender analysis of federalism is less instantly apparent, which this article targets, is relatively new. Feminists have also expressed interest in the influence of international law on national constitutions, albeit frequently in peripheral ways to design.^[3]

FOUNDATIONAL THEORIES

A constitution is a set of rules that govern a country, and it usually states whether the country is secular, socialist, or democratic. However, it is unusual for a country's constitution to state that it is feminist. Feminism, however, can still be found in a constitution through provisions such as the right to equality or the prohibition of sex discrimination.^[4] The women's movement in India was instrumental in shaping the country's constitution. Women were easily perceived as equal citizens in a democracy because they were already involved in social and political struggles. So, outside of the formal constitutional process, the concept of gender equality was already negotiated. However, there are still issues concerning women's rights that must be addressed. Personal laws that govern things like marriage, adoption, inheritance, and succession, for example, discriminate against women. Despite the fact that the women's movement has consistently campaigned against these laws, the debate over changing them has not been framed as one about women's rights. This is because personal laws are frequently discussed in the context of minority rights.^[5] The debate over personal laws has raged for over a century, and it has evolved into a complex issue. Jackson examines how feminist constitutional theory has influenced the development of constitutional law in the United States in her article^[6]. She claims that feminist legal theory has advanced. She contends that feminist legal theory has challenged traditional approaches to constitutional interpretation and pushed for a more inclusive understanding of constitutional principles - the first wave of feminism, which focused on suffrage and legal equality, resulted in the adoption of the Nineteenth Amendment to the United States Constitution, which granted women the right to vote; and the second wave of feminism, which focused on social and economic equality, resulted in significant legal changes. She briefly discussed how feminist legal theory has influenced the development of specific areas of constitutional law, for example: feminist legal theory has contributed to the development of sex discrimination law, which recognizes that discrimination based on sex is a form of discrimination that violates the Equal Protection Clause of the Fourteenth Amendment.

HISTORICAL PERSPECTIVES

Gender recognition in constitutional design is a recent development, but it is not without precedent.^[7] Although individual women have been commenting on the gendered implications of constitutions since the late 18th century, women's structured observations on constitutional design only began to emerge in the second half of the 19th century.^[8] In the United States, for example, women attempted (unsuccessfully at first) to extend the Fourteenth Amendment's protection of "privileges and immunities of citizens" to women's citizenship rights, including the right to vote and practise a profession. Finally, in 1920, the Nineteenth Amendment was ratified, prohibiting sex-based voting disqualification. In Australia, women formed organisations to try to influence^[9] the drafting of the Australian Constitution, and unsuccessfully campaigned for constitutional enshrinement of universal suffrage. They were, however, successful in their campaign for a provision exempting liquor from the constitutional guarantee of free trade and commerce. As women began to demand more rights, they began to develop a new constitutional epistemology, claiming enfranchisement as a claim on the concept of constitutional citizenship and constitutional protection from social and personal abuses.^[10] Their campaigns represented evolving, sometimes radically new claims on the responsibilities of constitutional government, and indeed on the concept of a constitution. Following the passage of the Nineteenth Amendment, American women began advocating for an Equal Rights Amendment^[11], which would include a general and abstract equality principle to serve as a shield against unspecified gender discrimination in future legislation, rather than specific and targeted protections. The Equal Rights Amendment campaign lasted 59 years after it was first presented to Congress in 1923, and while it passed both Houses in 1972, it was abandoned in 1982 when the extended deadline for ratification was not met. Where constitutional amendment is unavailable or its pursuit is unrealistic, equality campaigners have historically relied on interpretation. In the 1920s, for example, a group of women in Canada campaigned for an interpretation^[12] of their country's constitution that would allow women to be appointed to the Canadian Senate. While the Supreme Court of Canada rejected their claim, an appeal to the Privy Council's Judicial Committee in London was successful, giving rise to the celebrated statement that the constitution was a "living tree capable of growth and expansion," which has special application to women's experiences, particularly in countries with old constitutions lacking gender equality provisions.

India has a long history of grappling with gender inequality, and the country's Constitution has been a critical tool in addressing these issues. Article is a key neutral provision in the Indian Constitution. Article 14, which guarantees equality before the law and equal protection under the law to all citizens, is a key neutral provision in the Indian Constitution. However, the courts have not always interpreted this provision in a gender-neutral manner. In the case of Anuj Garg v. Hotel Association of India^[13], for example, the Supreme Court ruled that women employees could be barred from working night shifts for their own safety, despite the fact that this effectively barred many women from working in the hotel industry. Similarly, in Air India v. Nargesh Mirza^[14], the Supreme Court upheld a policy requiring female flight attendants to retire at the age of 35, based on the assumption that women were less physically capable than men at that age. Article 15, which prohibits discrimination on the basis of religion, race, caste, gender, or place of birth, is another neutral provision in the Indian Constitution. However, the courts have interpreted this provision in a gendered manner. In the case of Kalyani v. State of Uttar Pradesh^[15], for example, the Supreme Court ruled that a government policy providing financial assistance for girls' education was discriminatory against boys because it did not provide comparable assistance to them. Furthermore, while the Indian Constitution provides for the reservation of seats in legislative bodies and government jobs for women, implementation has been patchy at best. Women are still underrepresented in political and administrative positions, and even when they are, they frequently face significant barriers to effective participation.

INTERSECTIONALITY IN POWER SHARING INSTITUTIONS

Perhaps the only option for a structural constitutional design that has drawn significant feminist focus is federalism. A multilevel analysis is needed to determine its gender significance. This is both normative and realistic and relates to jurisdiction, policy, and effect. Irwin defines these dimensions in her writing by posing the following inquiries: A constitution's framers may have made assumptions about the roles that men and women should play when deciding which regulatory matters to give to the federal level of government and which to leave to the states or regions. When viewed particularly from the needs and interests of women, are the parallel institutions of governance and the dual distribution of powers in a federal system beneficial or detrimental? Whether women are subject to national or uniform laws on a specific subject, or whether there are numerous, diverse, and regionally varying laws on the same subject, in practise makes no difference.^[16]

An institutional strategy for managing difference in communities with different ethnic backgrounds is political power sharing. Consociationalism, the most commonly used type of power-sharing, commits to proportionality, veto rights, and autonomy while also sharing executive power directly representing significant ethnonational groups. Consociationalism might adhere to a corporate logic in which predetermined groups are represented in organisations of power-sharing, such as through ethnic quotas. The most prominent group identities may instead develop through elections, according to a liberal logic for representation. This implies that any group, whether ethnic or non-ethnic, has the potential to become the most noticeable group.^[17] In actuality, the primary partners in consociational institutions are usually ethnonational groups. The term "power," which traditionally refers to the authority of the state, comes first in the hierarchy of power-sharing. Here, a feminist addition to the theory of power-sharing might start by analysing the effects of emphasising state power and control. Power is typically defined in forceful and statist terms in orthodox political science analyses of power, such as the power-sharing theory. However, a feminist perspective might enable us to refute the notion that power is a thing or a resource, bringing us one step closer to comprehending the types of political and social exclusions caused by institutions of power-sharing that need to be addressed.^[18]

Understanding the kinds of claims that women make and the constitutional tactics they employ is essential to comprehending the constitutional agency of women. There is no doubt that gender-related litigation has continued under the majority of the other rights-based provisions as well as under some federalism provisions, despite the strongest stress being placed on equality provisions. In this context, it is important to think about whether certain groups of women are more litigious than others and, if so, what effect this has on the development of law. It's also fascinating to see how men's former agency has affected women's lives.^[19]

In addition, instances where women are defendants or are not even parties, such as most sexual assault prosecutions, may have an impact on gender-related doctrine. The difference, if any, that having women on the final appellate courts that resolve constitutional disputes makes, must also be considered in any evaluation of the effectiveness of women's constitutional litigious agency.^[20] In summary, lobbying, legislating, litigating, and adjudicating are all aspects of women's political agency. The various chapters demonstrate that although all of these roles are available to women, our entry is not proportionate to our numbers, suggesting hidden but real public constraints, perhaps similar to the aforementioned "glass ceiling" in the private workplace. Additionally, women shouldn't confuse the bestowal of nice-sounding principles with the efforts of agency.

COMPARATIVE ANALYSIS (GLOBAL PERSPECTIVES)

Gender equality is a fundamental human right enshrined in numerous constitutions and international treaties. However, simply having gender-neutral provisions in constitutions and laws does not guarantee gender equality in practise. This is because gendered effects of these neutral provisions can perpetuate discrimination and inequality against women and marginalised genders. This is not an Indian problem; it is a global phenomenon. Gendered effects of neutral provisions can exist even in countries that have made significant progress towards gender equality. For example, the Equal Pay Act of 1963 prohibits gender-based wage discrimination in the United States, but women continue to earn less than men on average.^[21] This is due to factors such as occupational segregation, in which women are disproportionately concentrated in lower-paying jobs. Similarly, while parental leave policies in many countries, including developed nations such as Canada and Australia, are gender-neutral, women continue to bear the majority of caregiving responsibilities and frequently face discrimination and career setbacks as a result. This demonstrates that even when laws are gender-neutral, societal norms and stereotypes can still have gendered effects.^[22] Furthermore, many countries still have laws and policies that explicitly discriminate against women and marginalised genders.^[23] For example, until recently, Saudi Arabia had laws requiring women to obtain permission from a male guardian for a variety of activities such as travel, work, and marriage. These laws effectively made women second-class citizens in their own country. Women were effectively made second-class citizens in their own country as a result of these laws. As a result, it is critical to recognise that gender equality entails more than just enshrining gender-neutral provisions in constitutions and laws; it also entails dismantling societal norms and practises that perpetuate gender inequality. Governments must take proactive steps to address these gendered effects and strive for a more equitable and just society for all genders.^[24]

CRITIQUE AND CHALLENGES

In order to examine the problem of gender equality, feminists and judges emphasize on different material facts, depended on different terminology, reason quite differently, and may not always have the same objectives. This presents a complex challenge. Most feminists agree that ending women's subordination is necessary before gender equality can be accomplished. Contrarily, some legal scholars contest the reality of women's subordination while others query the efficacy of turning to the constitution for redress.^[25] The creation of a feminist constitutional plan that, like any effective means of ordering things, should permit some degree of flexibility.^[26] However, this feminist constitutional agenda should at the very least address how women are currently positioned in relation to (i) constitutional agency; (ii) constitutional rights; (iii) constitutionally structured diversity; (iv) constitutional equality; and give special attention to (v) women's reproductive rights and sexual autonomy; (vi) women's rights within the family; and (vii) women's socioeconomic development and democratic rights. This is a long collection. It would be even lengthier, though, if it included all the context- and fact-driven topics that could be included in an agenda that is exclusively feminist in nature. In fact, its length is of no comfort to lesbian, bisexual, or transgender women, women with disabilities, or older women whose rights aren't represented in it. They'll believe that the claims they make are hidden within the stated categories. Additionally, this list is open to the criticism that some topics may overlap with more than one subject. Despite these flaws, the advantage of developing our suggested feminist constitutional agenda so thoroughly is that it is a lot more thorough than most agendas that are created from a purportedly "gender neutral" constitutional law perspective.^[27] These studies frequently treat problems as if they are either related to federalism and the division of powers or as constitutional rights.

The issue of gendered constitutional provisions is not just an abstract legal concept; it has a very real impact on people's lives. It is not only about interpreting and enforcing the law, but also about how it affects individuals in their daily lives. Consider a neutral provision that requires employees to work specific hours or shifts. While this may appear to be a trivial requirement, it can have a significant impact on people's ability to balance work and family obligations. Women, who continue to bear a disproportionate share of caregiving responsibilities, may have a more difficult time meeting these requirements than their male counterparts. This type of scenario emphasises the importance of comprehending the impact of seemingly neutral provisions from a human perspective. It is not enough to examine the law on its own; we must also consider how it impacts people in their daily lives. To address this issue, we must interpret and apply the legislation in a more compassionate and empathetic manner. Individuals' lived experiences must be recognized, and proactive measures must be taken to address any disparities that may emerge as a result of seemingly neutral provisions. This could include providing more flexible working arrangements, more support for caregivers, or implementing policies. In short, the issue of neutral constitutional provisions with gendered impacts is not just about legal theory, but it's about people's lives. By adopting a more human approach to understanding and addressing these issues, we can work towards a more just and equitable legal and social framework that truly benefits everyone. 

Views Are Personal 

1. Helen Irving, ‘Gender and the constitution equity and agency in comparative constitutional design’ (2008). ↑

2. Irving, H., ‘Drafting, design and gender’, in Drafting, design and gender (2001). pp. 19–37. ↑

3. Anchal Bhateja, For a feminist constitution, Deccan Herald (2023), https://www.deccanherald.com/opinion/main-article/for-a-feminist-constitution-1185843.html ↑

4. Shreya Atrey, ‘Feminist constitutionalism: Mapping a discourse in contestation, International Journal of Constitutional Law, Volume 20, Issue 2, April 2022’. pp. 611–641. ↑

5. Ruth Houghton & Aoife O’donoghue, ‘Ourworld’: A feminist approach to global constitutionalism, 9 Global Constitutionalism (2020). pp. 38–75. ↑

6. Vicki C. Jackson, Feminisms and Constitutions, in The Public Law of Gender: From the Local to the Global (2016). pp. 43–72. ↑

7. Helen Irving, ‘Gender and the constitution equity and agency in comparative constitutional design’ (2008). ↑

8. Laurie W.H. Ackermann, ‘Constitutional Comparativism in South Africa’. ↑

9. Cot, A.L. ‘Breed Out the Unfit and Breed In the Fit”. American Journal of Economics and Sociology’ pp. 793-826. ↑

10. Aharon Barak, ‘Comparison in Public Law’, ↑

11. Helen Irving, ‘Gender and the constitution equity and agency in comparative constitutional design’ (2008). ↑

12. de Bruin, T., & Cruickshank, D. (2020). Persons Case. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/persons-case ↑

13. Hotel Association of India & Ors AIR 2008 SC 663 ↑

14. Nergesh Meerza AIR 1981 SC 1829 ↑

15. Criminal Appeal No. 2232 of 2011 (Arising out of SLP (Criminal) No. 648 of 2010), Special Leave Petition (Criminal) Nos. 2450 and 3856 of 2010 ↑

16. Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (2008). ↑

17. James McCulloch v. The State of Maryland, John James, 17 U.S. 316 ↑

18. Baines, Beverley & Rubio Marin, Ruth. Introduction: Toward a Feminist Constitutional Agenda (2004). ↑

19. Reinhard Zimmermann, The Oxford Handbook of Comparative Law (2006). ↑

20. Ran Hirschl, ‘On the blurred methodological matrix’, in Choudhry, The Migration of Constitutional Ideas. pp. 42 – 43. ↑

21. Baines, Beverley & Barak-Erez, Daphne & Kahana, Tsvi. (2012). Introduction: The Idea and Practice of Feminist Constitutionalism. Feminist Constitutionalism: Global Perspectives. pp. 1 – 12. ↑

22. Vicki C. Jackson, ‘Narratives of Federalism: Of Continuities and Comparative Constitutional Experience’, 51 Duke Law Journal 223 (2001) ↑

23. Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’, 108 Yale Law Journal 1225 (1999) ↑

24. D. Neil MacCormick and Robert S. Summers, ‘Further General Reflections and Conclusions’. pp. 531. ↑

25. Ruth Houghton & Aoife O’donoghue, ‘Ourworld’: A feminist approach to global constitutionalism (2020). pp. 38–75. ↑

26. National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, 2000 (2) SA1 (CC) ↑

27. Frankenberg, Gunter (2006), ‘Comparing Constitutions: Ideas, Ideals and Ideology – Toward a Layered Narrative’. pp. 439–59. ↑