Gender Stereotype, Unconstitutional: Karnataka High Court Strikes Down Guideline Excluding Married Daughters From Ex-Servicemen Scheme

The bench said “I strike down and annihilate the words “till married” in the aforesaid guideline.” Following which the court directed the respondents to issue I-card to the petitioner within two weeks, if all other parameters are found satisfactory.

The bench held that the clause in the guideline “Is a depiction of gender stereotypes which were existent decades ago, and if permitted to remain would be an anachronistic obstacle in the march towards women’s equality.”

Case Details:

The petitioner being the second daughter of Subedar Ramesh Khandappa Police Patil completed her graduation in the year 2015 and became eligible to be considered for appointment in the State Government in any recruitment process that would ensue.

As per several such welfare schemes floated by the state government for ex-servicemen, their wards were entitled to 10% of reservation in any recruitment process in all the departments of the Government. A notification then came to be issued on 26.08.2021 seeking to fill up the vacant posts of Assistant Professors in the Government First Grade colleges across the State.

The petitioner intending to apply for the post of Assistant Professor, as she was the ward of an ex-serviceman and finding herself eligible in all other criteria, approached the Deputy Director of Zilla Sainik Welfare Board, for issuance of a dependant identity card to demonstrate that the petitioner is the ward of an ex-serviceman. However, the deputy director declines to issue an identity card quoting guidelines for issuance of dependent identity cards which depicts that identity cards cannot be issued to married daughters.

Findings:

The bench on going through the impugned guidelines noted that clause (5)(c) of the guidelines depict issuance of I-card to the children of the ex-servicemen. It would be issued initially for a period of 5 years and renewed thereafter for a period of 5 years. It is here the sons and the daughters of ex-servicemen are divided, court noted. "The sons are issued the I-card subject to them not attaining the age of 25 years or on ceasing to be dependent whichever is earlier or remains unemployed due to lifetime disability. These are not the conditions for the daughter.”

It then observed “Whatever is applicable to the son is applicable to the daughter as well, but till she gets married or is unemployed due to lifetime disability. What can be gathered from the aforesaid clauses of the guideline is, the son the moment he attains the age of 25 years or on ceasing to become a dependant as defined under the guideline, he would lose the benefit of getting an I-card. To the daughter, it is till she gets married.”

Noting that marriage of the daughter takes away the benefit, the bench opined “The guidelines would thus depict gender bias qua the status of the daughter “married and unmarried”.”

Observing that “Article 14 of the Constitution of India ensures equality and its main object is to protect persons similarly placed against discriminatory treatment. The equality before law guaranteed under Articles 14, 15 and 16 of the Constitution of India is a constitutional admonition against both the legislative and executive organs of the State. Therefore, neither the legislature nor the Rule making Authority can make a law or a Rule, issue any guidelines/circulars/administrative instructions, which would be in violation of article 14 and 15 of the Constitution of India.”

The bench held “The issue in the case at hand does not concern a statute, but a guideline in the form of a policy; a policy in the form of a guideline, it is therefore, on a lower pedestal than that of a statute. If statutes are held to be violative of the tenets of Article 14 of the Constitution of India by the Constitutional Courts for the reason that it depicts discrimination resulting in gender bias, a guideline in the form of policy would pale into insignificance, if it portrays such discrimination, even to its remotest sense.”

Rejecting the submission of the respondents that the guideline does not offend Article 14 of the Constitution of India. The bench said “The son gets the benefit whether he is married or unmarried; the daughter gets the benefit only if she remains unmarried. Here lies the discriminatory choke, as the guideline portrays bias on the basis of gender; inequality on the basis of gender, as marriage of the daughter takes away her right to get an I-card and marriage of a son does not take away his right to get an I-card.”

It added “If the son remains a son, married or unmarried; a daughter shall remain a daughter, married or unmarried. If the act of marriage does not change the status of the son; the act of marriage cannot and shall not change the status of a daughter.”

Suggestion to change the nomenclature ‘Ex-servicemen’.

Referring to the guidelines the bench said “A perusal at the relevant guidelines would indicate that its recitals refer to the beneficiaries of guidelines to be persons who have served the Forces or their kith and kin. It is the nomenclature of the guidelines that seeks to portray discrimination.”

It added “The word “men” in the title portrays such discrimination as it seeks to demonstrate that the Forces are still a bastion of the male, while it is not.”

Recognising that there is a paradigm shift from the past. Women have reached combatant services in supervisory roles as officers and on other responsibilities, be it in the Indian Army; in the Indian Air Force and in the Indian Navy.

The bench opined “The word ‘men’ in the title, a part of the word ex-servicemen, would seek to demonstrate a misogynous posture of an age-old masculine culture. Therefore, the title wherever reads as ex-servicemen in the annals of policy making of the Government, be it the Union or the State concerned, should be made “Gender neutral”.”

Further it said “There has to be a change in the mindset of the rule making authority or the policy makers, it is only then there could be recognition of commitment of the values of the Constitution, as equality should not remain a mere idle incantation, but has to be a vibrant living reality. It must be remembered that extension of women’s rights is the basic principle of all social progress.”

Following which it suggested “Since it is in the realm of rule making or a policy making which is the domain of the Union Government or the State Government as the case would be, it is for the Union Government or the State Government to address this imperative need of change of nomenclature wherever it depicts to be ‘ex-servicemen’ to that of ‘ex-service personnel’ which would be in tune with ever evolving, dynamic tenets, of Article 14 of the Constitution of India.”

Case Title: Priyanaka R Patil v. Kendriya Sainik Board

Case No: WRIT PETITION No.19722 OF 2021

Citation: 2023 LiveLaw (Kar) 1

Date of Order: 02-01-2023

Appearance: Vivek R, Advocate for petitioner; H Shanthi Bhushan, Deputy Solicitor General for R1; B.V.Krishna, AGA FOR R2; A.H.Sunitha Ramesh, Advocate FOR R4; N.K.RAMESH, ADVOCATE FOR R5.

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