Venkata Kartheek Vegesana
According to Professor Upendra Baxi, any constitution can be interpreted on three different levels. Firstly, it is the textual understanding of the law and the learning of it. Secondly, it is the interpretation of the constitution as a document and reading into the provisions to understand different levels of meaning of the text. Lastly, it refers not to a particular part of the paper but a particular idea behind the constitution. It is in this level of understanding that we can also find the morality of our constitution, which is detailed by Pratap Bhanu Mehta. Constitutional morality is based on the philosophy and group of ideas which were behind the drafting of the constitution. It can be differentiated from social morality. While social morality originates from the beliefs of the population at a given point in time and is subject of frequent changes based on trends, constitutional morality originates from the principles of the constitution which the authors had in their mind while drafting. It serves to protect the citizens in a situation where social morality acts against a group of citizens.
In this paper, I primarily argue that the morality of our constitution includes protection for gender minorities. This has been done by using two primary arguments. Firstly, that by choosing individuals as the loci of representation, the constitution’s framers recognized the importance of participation of women. Secondly, I argue that due to an intersectionality of identities, there is a plurality in the deprivation caused. This negatively affects gender minorities, because they can often have another identity which is oppressed.
INDIVIDUAL AS THE LOCI OF REPRESENTATION
The constitution was primarily drafted by men, and there has been little consideration of gender equality, even when it came to representation, due to the social conditions of the time. Women did not actively participate in the making of the constitution. They were excluded and their representation was kept to a minimum. However, we can still locate and derive equal protection for them, through various provisions of the constitution and the constitutional morality of the constitution. Women were not considered an important social group when it came to representation, be it in the constitutional assembly, parliament, education, or administration. Their concerns always took a backseat in a situation where there was mass inequality on various frontiers, such as caste and class. The emancipation of these groups was given priority.
According to Madhav Khosla, the main aim of India’s constitution was to create democratic citizens through codification, centralization, and representation. This conception takes within its ambit, the concern for women’s equal rights as well. This is due to the fact that for the creation of democratic citizens you require women’s active participation. A few arguments which can be made in favour of our proposition.
Firstly, the choice of our constitution framers to choose universal adult franchise as the mode of political participation. Madhav Khosla argues in his book India’s Founding Moment that from the constitutional assembly debates, we can clearly see that it intended to create a citizenship structure which empowered the individual to participate in public and political life over a group representation structure. This was done to ensure that the former colonial approach, which treated groups as loci of representation and assumed that individuals within certain groups would act collectively and in the same interest, did not continue. This approach did not consider individual participation and led to the loss of individuality, with the group identity overshadowing it. It can be argued that through such a measure, although the constitution makers did not specifically consider it, they laid down the foundational path for gender equality laws.
Our constitution focuses on individuality over group subordination and empowers citizens to participate in political life. It can be argued that political discussion in a country would not be complete without the active participation of all its citizens. Therefore, this choice by the constitution’s framers empowers women to actively participate in political life by making them democratic citizens and places gender equality well within the framework of constitutional morality. Articles 14, 15 and 16 of the constitution crystallize this argument. They expressly provide that the state shall not deny to any person equal protection before the law and that the state will not discriminate on the basis of sex, while also providing equality in opportunity in matters of public employment. We can infer and claim for protection under these articles.
INTERSECTIONALITY OF IDENTITIES AND OTHER HURDLES
We know that when there is an overlap of oppressed identities, there also exists an increased amount of oppression and a decreased amount of capabilities. The intersectionality of oppression and deprivation has not been adequately realised in the constitution. The constitution should not have remained silent on such severe deprivation that affects a substantial amount of the population it governs. Such problems require specific attention. While a level of the intersectionality has been addressed by the constitution through affirmative action for oppressed classes, the same has not been reflected in the favour of gender equality. However, our constitution still makes within it provisions for the protection of each of these identities through different provisions.
While gender identity is protected through the equality code jurisprudence, other identities, such as religious or linguistic, have been protected through the minority jurisprudence. Articles 25 and 26 protect the profession of religion, and articles 29 and 30, protect the interests of linguistic and cultural interests of linguistic minorities. These help protecting the gender minorities, even when there is no solid protection given against the plurality of identities.
We might be able to locate gender equality within the morality of India’s constitution, but this does not take away the fact that our constitution did not make any substantial effort to bridge the gap between men and women, as affirmative action remained limited to the representation of Scheduled Castes and Scheduled Tribes. Another paradox we face while arguing for gender equality is that we consider gender minorities a group and reduce individual expressions to group representation. While this may be a genuine concern, group emancipation is necessary for the benefit of the individual. Therefore, it need not be given much thought.
However, when looking at the vocabulary of these provisions, we can understand that these provisions look particularly at women and not all gender groups. While the broader provisions under article 15(1) talk about sex, the specific provisions, for instance 15(3), mention women. Rules of interpretation regularly state that when there are generic rules and specific rules, the specific rules should be used to interpret. If the courts of our country use such an interpretation, then it can have detrimental effects on the equality code. Luckily, we have seen in cases like NALSA v. Union of India and Navtej Singh Johar v. Union of India, that the court is ready to purposively interpret these provisions and recognize rights like the right to determine their gender identity. The constitution might not expressly provide these kind of rights, but it impliedly creates these rights for gender equality.
To conclude, the constitution, by preferring individuality over group representation and choosing Universal Adult Franchise in a highly divided society, laid the impetus for claims for gender equality. Even though gender equality, which includes all gender groups, is not expressly shown as a part of constitutional morality by the framers of the constitution, I have made a case for it by arguing that it can be derived from various other provisions. However, even if we locate gender equality within constitutional morality, there is still a lack of concrete affirmative action that is trying to place these different groups on a similar level. Any efforts to do so by the government by recognizing the value would be incredibly beneficial.
The concept of constitutional morality has to be internalized and decimated within the entire population of the country for effective implementation of our constitutional provisions. The author in this paper argues that this constitutional morality also has within it an ambit and scope for gender equality. I substantiate this claim by arguing that through universal adult franchise, the constitution empowers individuals over groups. These substantially work in the favour of women, because they were completely ignored from even consideration from such before.
Therefore, gender equality can be found within the morality of our constitution, and this has been protected through several provisions of the constitution and judgements of the court, which has been read into new rights as well.
 Upendra Baxi, Constitutionalism as a site of State Formative Practices, 21 Cardozo Law Review 1183, 1185-1189 (2002), (The World of Three “Cs”).
 Madhav Khosla, India’s Founding Moment: The Constitution Of A Most Surprising Democracy (Harvard University Press 2020).
The author is a third-year law student from NALSAR, University of Law
Image Credits: ProBono India
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