High Court’s gift to the daughters of freedom fighters on Independence Day- Gender Discrimination

(The Court on 14 August 2018 struck down a 1984 policy of the State which discriminated against the married daughters of freedom fighters . The policy did not consider the married women at par with the married sons and specifically excluded them from reservation being provided to “wards of freedom fighters category” in Govt. Jobs in the state of H.P).

The occasion is apt to echo the four decade old illuminating words of one of the greatest Judges of our Apex Court, Hon’ble J. Krishna Iyer where he said:

“If a married man has a right, a married woman, other thing 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”

In the year 1984 it was decided by the state of H.P that 2% reservation in services be provided to the children/grandchildren of freedom fighters belonging to the State of H.P. in direct recruitment to all services/posts i.e. Class-I to IV including all Public Sector Undertakings/ Boards/Corporations. As per Scheme, the benefit of reservation was applicable in respect of sons/grandsons, daughters/ granddaughters of Freedom Fighters. The married daughters/ granddaughters of Freedom Fighters were excluded from the scheme.

The issue of this exclusion was taken up and judicially reviewed by the bench of Hon’ble J.Sanjay Karol and J. Sandeep Sharma on a petition by Letter petitioners Ms Rekha Sharma and Ms Geeta Sharma, daughters of late Shri Het Ram Sharma (a Freedom Fighter).

The court appointed Advocate Deven Khanna as Amicus Curie who made submissions on behalf of the married daughters of freedom fighters (petitioners).

The stand of the state as reflected from the affidavit filed in 2017 was that;

“So far as the question regarding giving reservation quota to the married Daughters/ granddaughters of Freedom Fighters is concerned, it is submitted that status of a married woman has to be construed in consonance with the general understanding of the word family as well as a status of married woman in the society. After marriage a married woman loses the status of being a member of parent’s family.”

On an Affidavit dated 10.10.2017, filed by the Deputy Secretary (GAD) in the Court it was stated:

“According to common knowledge and general understanding the married daughter does not constitute to be a part of the family in its real sense. A daughter of a freedom fighter after her marriage, gets herself transplanted into the family of her husband and cannot, therefore, be claimed to be a part of the family in its real sense of the freedom fighter her father at least for anything relating to her children”

The State effectually took a stand that after solemnization of marriage; daughter severs her relationship with her parental family, for she gets “transplanted” into the family of her husband, and as such, cannot claim herself to be part of family of a Freedom Fighter.

It was argued on behalf of Married daughters (petitioners) that Exclusion of a married daughter is plainly an act of hostile discrimination which is violative of the fundamental right guaranteed under Articles 14 and 15 of the Constitution. The condition which has been imposed by the State does not prescribe financial dependence and does not excluded married men.

It was argued that On the contrary the purpose here is to give benefit to the family of freedom fighter for their services, family here includes married daughter as much as married son, if we look at the classification made by the state between married man and married daughter, it does not bear any connection with the object of the policy which seeks the benefit of the family members, hence this violates the basic rights. It was stated that Discrimination law now sees as its focus the redressal of structural and institutional conditions, that have been historically responsible for subordination on the basis of gender roles. Gender roles here being married daughter considered dependent on her husbands family and losing her identity as it was prior to marriage.

It was further submitted by the amicus that discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex in public employment which is violative of article 16.

It stated by the amicus that “It is the duty of the State to “not perform” an act which would discriminate on grounds of sex., there is also a positive obligation on the State to perform an act which would remove such existent discriminations.”

The Court discussed Plethora of judgments which had carved out a landscape of principles against gender discrimination in recent years.

Finally the court struck down the policy to the extent it discriminates against married women and was contrary to the constitution.

The Court speaking through Hon’ble J. Karol came down heavily on the line of defence adopted by the state, while striking down the unconstitutional part of the policy, the court held:

“******We find the stand adopted by the State to be absolutely archaic and disappointing..

::…..We notice that, under the instant Policy, the object and purpose of providing reservation is to confer benefit upon the wards of the Freedom Fighters. Stand taken by the State that daughter gets transplanted into the family of her husband, in view of what the Hon’ble Supreme Court has observed, noticed by us supra, is not in tune with the changing times. The primary object and purpose of the Policy is not to confer benefits only on the male members of the Freedom Fighters. It is to acknowledge the sacrifices made by the Freedom Fighters, by giving employment to their wards.

….The primary object to provide employment to wards of freedom fighters is to recognize the outstanding services rendered by them to the Nation during struggle for Independence and thus their wards are given benefit towards employment by making reservation to them under the category of “Wards of Freedom Fighters”. In our considered view, Daughters and Granddaughters, even if married, would be eligible for public employment.

…The action of the respondents by not giving reservation to married women and not allotting them Wards of Freedom Fighter Certificate, is illegal and arbitrary and an example of colorable exercise of power, for marriage does not have and should not have a proximate nexus with identity. The identity of a woman, as a woman continues to subsist even after and notwithstanding her marital relationship.

The time has, therefore, come for the Court to affirmatively emphasise that it is not open to the State, if it has to act in conformity with the fundamental principles of equality which are embodied in Articles 14 and 15 of the Constitution, to discriminate against married daughters by depriving them of the benefit of the reservation, which is made available to a son irrespective of his marital status.”*******(excerpt is from the judgement in cwpil 114 of 2018)

The Court also took note of the fact that the policy was an old policy, passed before the guarantees of sex equality under Articles 14 and 15 had an adequate expansion through various judgements of the apex court. The Court also referred to conflicting opinions passed by its previous benches.

The present case strengthens the fight for equality and strikes at Differential treatment of men and women on the basis of presumed “gender roles” between the sexes, it exposes that discrimination results from conscious, chauvinistic Mind set and sometimes is a product of social, economic, and cultural structures and institutions that create “patterns of exclusion”.

This significantly advances Indian sex discrimination jurisprudence, not only because of what the Court held i.e “that the policy discriminates against married women”, but also because of how it expressed it, Justice karol commenting on the stand of the state observed that

“It is certainly not in tune with the changing times. In fact, it is out of sync with the constitutional values and principles. Predominant mindset of male chauvinism is all pervading”

the language here is highlighting the impact of of discrimination, because such practices end up reproducing existing social inequalities and hierarchies, and are the cause of stereotyping a particular gender into set roles. The need is to change the mindset and spread the constitutional morality of equality and freedom, to counter the chauvinism prevalent in the society at large and to provide level playing field for all to prosper.

The case is a victory for women rights movement and an example of the justice system coming to the rescue of fundamental rights, against, biased and prejudicial laws which have a legacy of discrimination and are nursed by misogynistic mind sets of our society