The Indian Feminist Judgments project [IFJP] is a collaboration between feminist legal academics, litigators and judges, practitioners, and activists from law and other disciplines who use a feminist lens to re-write alternative opinions to existing judgments. Indian Law Review, Volume 5 (Issue 3) presents a set of six re-written judgments and accompanying commentaries prepared as part of the IFJP. 

This interview with Shreya Atrey and Gauri Pillai was conducted over a Zoom call and edited for length and clarity. Shreya is an Associate Professor in International Human Rights Law based at the Bonavero Institute of Human Rights. Gauri is a DPhil candidate, with the Faculty of Law, University of Oxford. This interview discusses their rewriting of the judgment in Air India v. Nergesh Meerza.

[Ed Note: You can find information with regards to the podcast and can access all the episodes by clicking here]

Eeshan

Hi everyone, welcome to the Law and Other Things podcast series. I’m Eeshan Sonak, a legal editor with LAOT, and today I’m joined by Shreya Atrey and Gauri Pillai who will be talking about their feminist rewriting of the Nergesh Meerza decision (see here). Shreya is an Associate Professor in International Human Rights Law at Oxford, and Gauri is a DPhil candidate, also at Oxford.

Just a brief about the case Air India v. Nergesh Meerza, the constitutionality of the Air India Employee Service Regulations 46 and 47 were challenged as violating Articles 14, 15 and 16 of the Indian Constitution. These regulations provided that Air Hostesses must retire upon attaining the age of 35, on marriage if it was within four years of service, or on first pregnancy. Parallel conditions were not imposed on men, who were appointed as Air Flight Pursuers. The Supreme Court ended up declaring some of these conditions as arbitrary while upholding others. In Shreya and Gauri’s words, Nergesh Meerza is a stark example of equality gone wrong, both in terms of its outcome and reasoning, and its implications for the future of equality and non-discrimination jurisprudence in India.

So to begin, Shreya and Gauri, could you summarize for our audience why Nergesh Meerza is so problematic when viewed from the lens of feminism and anti-discrimination?

 

Shreya

In our re-writing of the judgement, we have identified three things which we think are problematic; One is to see gender as differently from sex and although, the binary is now highly criticised and there is nothing quite as socialised about gender as there is biological about sex, but if we do stick to the orthodoxy that the sex is about biology, gender as socialisation, then the Supreme Court seems to have forgotten about the latter and seems to have reduced sex discrimination to biology alone, which we think is problematic.

The second thing which is problematic and which has now been remedied in Lt. Col. Nitisha v. Union of India is that the SC doesn’t quite see that it is not just what provision or practises that seem on the face of it but it’s the effects of those practises which may lead to discrimination, which is called disparate impact or indirect discrimination. That the court didn’t see in 1981 and that’s been remedied now, and hopefully, it will usher in a new era not just for indirect discrimination generally but for gender discrimination jurisprudence more broadly.

The third is, what we think went wrong at a more fundamental level which remains to be addressed in a big by the supreme court several decades later, is the recognition of intersectionality. We think that the SC seems to have said that sex discrimination when coupled with other considerations is not discrimination at all, and in saying so seems to have denied the intersectional discrimination which remains wanting largely in the Court’s jurisprudence even today. So those were the three colossal disasters that happened with Nergesh Meerza which is otherwise understood as not so bad a judgement in Indian jurisprudence, but that really compelled us to think about rewriting this from a feminist perspective.

 

Gauri

So, if I could just add maybe a couple of things as well on how the court doctrinally read Article 15 and Article 14. So, what the court did was to place a sort of undue emphasis on the word only in the progression and say that what Article 15 prohibits is that discrimination should not be made only and only on the ground of sex and these articles of the constitution do not prohibit the state from making discrimination on the ground of sex coupled with other considerations. And this basically sounded the death knell for all the steps that came after that which is the separation of gender from sex, the refusal to recognise indirect discrimination and the exclusion of intersectional discrimination because all these other factors got put into other considerations and therefore excluded.

So, I think doctrinally that is a really problematic thing for us to focus on which is the reading of Article 15(1) and the second thing when you asked this question, I was thinking about that the test for Article 14 and how malleable the test is so it kind of becomes a gateway for the anti-feminist patriarchal values to enter constitutional interpretation. I think all of us know that there are two doctrinal tests under Article 14; one is the classification test and the other is the arbitrariness test, which was introduced ironically as a way to remedy all the deficiencies of the classification test. But in the way it’s been interpreted by the court, it has no real meaning because of which it becomes a very easy way for the courts to kind of bring in these patriarchal values and the way in which arbitrariness is used in Nergesh Meerza is a classical example of that.

So, there were two conditions at challenge; one is the condition which said that the air-hostesses must retire if they get married within 4 years of service and this is something which we highlighted in our piece as well, the court said that this marriage condition is non-arbitrary because it ensures that women would marry only at around the ages of 20-23 years when they are fully mature. So, you don’t need me to spell this out but there’s clearly an assumption about women’s decision-making capacity and the state and the law deciding when women are mature. And the point that I want to make is the fact that this arbitrariness test which is supposed to remedy the deficiencies of the classification test is so malleable that anything and everything goes and it kind of becomes a smokescreen for values that are antithetical to equality.

 

Eeshan

Thank you, Shreya and Gauri, for identifying the problems in this judgement. Now Shreya, you mentioned that the judgement is often considered not so bad and actually even progressive in law schools. Even in an interview with Vrinda Bhandari for the Leaflet, Vrinda mentioned thinking of Nergesh Meerza as a pretty progressive judgement that just got some things wrong. So, do you think this is been the prevailing narrative in our legal education over the past four decades, or at what point, if ever, do you think that narrative changed?

 

Shreya

Thanks, Eeshan! I think that’s generally the pervading narrative in the human rights jurisprudence everywhere. I think we like incremental change or we are happy with incremental change and we are not as impatient about transformation. So even the smallest bit of change, say in this case, which has to do with two of the three conditions of retirement being struck down, seems like a good thing. I don’t think that has changed. I think human rights practitioners generally, not just those working for women’s rights, I think there is a sense of any victories being good victories and I think that has to do with just how much even a small change takes from us. So just the fact that the SC did hold in the favour of the Air-hostess on two of the three grounds was a win in terms of the win-loss statistics which define courts, but it’s not transformative and I think the difference between incremental change and transformation is that transformation leads to overhauling the reasoning or the thinking behind a win, such as this one and that’s where feminist rewriting projects come in because they are not just interested in changing the outcomes, even if they are good outcomes, but they are interested in changing how we reason to get to that outcome and a lot of good feminist jurisprudence is about reasoning well and better and in a transformative way. But I don’t think that’s the dominant discourse, what I think is the prevailing dominant discourse is very much still whatever victory we get, we will take it.

 

Eeshan

Right! Thank you for that, Shreya. Then in your article, you’ve written that “in both striking down the agitations in part as arbitrary and upholding them in part as non-arbitrary, the court fell into affirming a range of stereotypes about women”. You gave examples like women as mothers, mothers as a sacred institution, etc. How much of a role do you think the social milieu of the 70s and 80s played in shaping this judgment?

 

Gauri

I think for me it’s a bit of a yes and a no answer. I think that social milieu in general shapes how courts reason and it is impractical and incorrect to think of judges as neutral arbiters who are distanced from the social reality and thinking that they are not influenced by the social patriarchal values which we highlight. And the application of the arbitrariness test which I talked about earlier is a really good example of that, but at the same time, I want to highlight three things.

One is that it was not just the social conditions that led to the judgment. The law allowed the social conditions to find a place in constitutional reasoning. The fact arbitrariness test has no real content, giving the judges a lot of discretion to determine what is arbitrary and what is not, and therefore, it is not just a question of the law being perfect and judges faltering in letting these social conditions influence their reasoning, but that the law allows these conditions to become a part of the constitutional reasoning.

The second point that I want to make is I don’t think this is about the 70s or the 80s, these stereotypes are widely prevalent even now and this is something we can discuss if you want later.

And the last point is some of the court’s reasoning is not about the social conditions but it’s just really bad law. The reading of Article 15(1) and for example, the exclusion of intersectional discrimination is clearly contrary to the inclusion of the phrase ‘or any of them’ at the end of the progression. So, it is a bad or incorrect textual interpretation and whatever the social conditions, if we were to think of how the law ought to be interpreted simply by means of this text, that restrictive understanding put forward in Nergesh Meerza of Article 15 is wrong law.

 

Shreya

I mean it depends on what history and context we are referring to. If I’m thinking of feminist discourse in the 70s and the 80s then I’m thinking of Mathura and Bhanwari Devi as the two major cases which have defined what was going on in the SC. I’m thinking of the Mandal Commission protests and the Savarna response to it and I’m thinking how Dalit feminists couldn’t possibly get behind the protest, especially from Savarna women which went in the order of how this reservation is going to leave us without husbands. So, look Dalit feminist discourse was thriving at this point, it was to me the mainstream discourse. so, if you look at it from that perspective if that was the milieu the judges belonged to then they would have written a different judgement. But feminism looks different at different particular points in time and I think there are no mainstream marginal discourses. Everything in feminist discourses is subaltern, it just depends on where you look. From my perspective 70’s – 80’s, there was a lot going on in the movement, which we call the women’s movement in India, not the feminist movement, which was thriving at this point in time, if only the judges cared, if only they looked outside. So, I think there was as much happening then as there is, you know, post #MeToo. It is just that judges are really pronouncing from the on high at these points and are sometimes just not plucked into what the social movements are on the ground or the women’s movement are and that will always be the case I don’t think that’s quite changed.

 

Eeshan

Thank you, Shreya and Gauri, for going into the kinds of stereotypes that were there back in the day, the kind of movements, and Gauri you mentioned that it is not about 70’s or 80’s and that these stereotypes even continue today. Can you, just for our audience, give a few examples of the recent judgements that demonstrate similar stereotypes that have been prevalent in 70’s – 80’s or that have been continuing?

 

Gauri

Maybe I will change track a little bit here from the non-discrimination jurisprudence and move to the abortion law jurisprudence which is also the subject of my doctoral research. When I was thinking about responding to your question, I felt like that’s a really stark example of the point Shreya made actually about the outcome in the reasoning that is used to get there is quite pulling into different directions. So I will talk about this case of Suchitra Shrivastava, which is a 2009 decision from the SC and it is still hailed as introducing the principle of reproductive autonomy within Indian reproductive rights jurisprudence and firmly grounding it under Article 21 and its personal liberty clause and it has spawned a lot of progressive reproductive right jurisprudence or language at least in judicial decisions whether it is Puttaswamy in 2017 or the recent supreme court decision which came out a couple of weeks ago which affirmed the holding in Suchitra Shrivastava case again.

But if you look at what the supreme court has said in that case, the case was about this mentally disabled women who is been forced to terminate her pregnancy because the state thought she would not make a good mother and would not be a competent mother and the court could very well have stopped at saying that this is her decision and it is a question of personal autonomy, but the court went much further than that and held that it is constitutionally wrongful to compel her to terminate her pregnancy because termination is not the normal recourse for a pregnant person and to me that sort of observation really undercut the court’s remarks on reproductive autonomy being recognised under Article 21 because built into that is this distinction that the court draws between certain forms of exercise of reproductive autonomy which is continuing pregnancy which is seen as normal and certain forms of exercise of reproductive autonomy such as abortion or termination of pregnancy which is seen as abnormal or an exception from normal circumstances. And the minute you start seeing abortion as the exception and continuation of pregnancy as the rule, the restrictions that are common within the abortion law, typically just come into play automatically and whether this is the criminalization of abortion or allowing abortion only under very specific conditions of a very high threshold or requiring third parties to verify that the conditions are met to ensure that women are not opting out of motherhood for what the law sees as frivolous reasons. So, to me, this case is a really strong example of the fact that again the outcome and even some of the language superficially recognised reproductive autonomy but the reasoning was still very strongly rooted in the motherhood stereotype, which we highlighted as underlying Nergesh Meerza and it’s reasoning as well.

 

Shreya

I have an article out in the International Journal of Constitutional Law. It’s available for free and it’s called Feminist Constitutionalism and it has a central argument which goes like this, it argues with 70 years of Indian jurisprudence in gender and says that the way to read it is to look at it as a discourse in contestation between different kinds of feminist debates. So, what’s useful is to not say “oh we succeeded and we won the case, this stereotype lost this one and this was what existed in the 70s and 80s and this is what exists now”, but to look at it in terms of substantive feminist reasoning. So, is it first wave, is it second wave, is it third wave, is it formal equality, is it substantive equality, is it about cultural feminism, is it is about radical feminism, if it is about radical feminism then what does radical feminism mean? Is it about Catherine McKinnon’s classical idea of everything is about dominance theory or is it the so many fields that have developed within radical feminism about intersectionality, post-colonial feminism, Marxist feminism, and eco-feminism? It’s a whole range of it. Which of these kinds of feminisms defines the debate in a particular case, I think that’s the interesting question to ask and I hope that much of the reading of the Indian gender jurisprudence sort of moves to that rather than us thinking about what are the small victories that we have managed.

But on small victories, let’s talk about positive things too. I do think that Anuj Garg stands as one of the finest judgements that we have received from an appellate court. It’s just really nice for the court to come out to say – don’t tell women to not work around alcohol or after a particular point in time, raat me nhi nikalna or ye nhi phehna. And I like the autonomy-infused reading of it that it is about enabling women’s autonomy in a sense or providing the right conditions for women to be workers on an equal basis as men. I like the labour law, and the feminist employment reading of it and I also like the fact that it elevates gender prudence from being like protective and protectionist to how do we make conditions good enough so women could decide for themselves- a good dose of capability theory and autonomy. So, I think Anuj Garg managed that and I think there are good moments and I think those are the moments that we rely on in terms of showing or at least gesturing to other judges that it can be done and that we are not asking too much, if your brethren can do it, so can you. So, it’s not always that you have to do the feminist judgement rewriting projects to get to the good judgements, sometimes you just have to point towards the works done by court and say just try emulating, you can get there too!

 

Eeshan

Perfect, wonderful. Ok, so now the next question is also based on a part of another Article written by Gauri. This Article notes that constitutional jurisprudence has now moved beyond the restrictive understanding of Article 15(1) in Nargesh Mirza. After the decision like Navtej Johar, Lt. Col. Nitisha, sex has been interpreted to include gender, indirect discrimination has been recognised, and the need for an intersectional approach has, to an extent, been acknowledged, although as you both mentioned, there is a long way forward to go. So now in the Article in the International Journal of Discrimination and Law, Gauri you have said that “Nitisha leaves certain questions unanswered: the test for justifying indirect discrimination, the doctrinal reading of the non-discrimination guarantee and the legitimacy of using comparative law. However, seeing Nitisha as one chapter of a constitutional conversation allows us to appreciate its contributions while holding the space open for future judicial efforts at constitutional meaning-making.” What do you think would be the way forward in terms of improving our equality code and anti-discrimination framework? Do you see arbitrariness test but in a more nuanced and a more fleshed-out manner as a way forward or what else direction do you see the equality code take?

 

Gauri

So, in the article, it’s interesting that Shreya was talking about her piece in ICON because I think that my central argument was not what she was making. I think it comes from a similar intellectual tradition to see it as a part of that contestation rather than see it as setting in stone certain doctrinal or principled or ideological understandings within constitutional law. From that position, I feel in the article I have talked about three very specific points that Nitisha left unanswered from which we could go forward.

The first is the test for justification under discrimination law because across the globe, some forms of discrimination can be justified under certain specific standards. Justifying it means to condone it in certain circumstances and for example in the UK and the EU the proportionality test is largely used. In the US you have different standards for different grounds so race is subject to something called strict scrutiny, gender subject to intermediate scrutiny, etc. In India, there is absolutely no clarity on what that standard is and this is something I really struggled with as I was trying to work on discrimination law and apply it to reproductive rights. When you don’t know what that standard is, it’s hard as to what do you apply really. We have some inklings coming up here and there, so Anuj Garg, which Shreya mentioned, talks about proportionality or it actually talks about strict scrutiny but applies proportionality and then going from Anuj Garg to Naz Foundation in Delhi HC in 2010, talked about proportionality again but then Nitisha again talked about necessity, which is one limb of the proportionality test but you know it doesn’t engage with other limbs of proportionality test and so to me this kind of doctrine of confusion is very unhelpful because it leaves a space open for courts to resort to a much lower standard of justification like reasonableness and there might be many laws including maybe the one under Anuj Garg which might pass the reasonableness level of review but will not pass the proportionality level of review, which is what eventually happened in Anuj Garg, it didn’t pass the necessity test. So, for me, the one really big area which needs clarity is the doctrinal test of justification.

The second is the reading of Article 15(1), which we talked about a number of times now. Nitisha was again an opportunity for the court to reject Nergesh Meerza. The only rejection of Nergesh Meerza really comes from the concurring opinion of Justice Chandrachud in Navtej Johar but that remains a concurring opinion and the majority said nothing about the Article 15 test and this a trend that is prominent in the discrimination law jurisprudence just proceeding under Article 14. Nitisha really had the chance to explicitly engage with the Nergesh Meerza reading, which it failed to do and which, I think, is a completely lost opportunity.

And the last thing I talk about is methodological how Nitisha uses comparative law and this is again something I think we can say about how the use of comparative law more generally within Indian case laws. So, Nitisha relies on comparative law quite extensively and it in fact develops a test for indirect discrimination by using a 2020 case from the Canadian SC with no real sense of why Canada is a jurisdiction that we must follow and what the constitutional similarities are between India and Canada. I’m not against the use of comparative Law at all but when comparative law is used without a principled reason as to why certain countries are being relied on and others are not, it very quickly becomes prey to the cherry-picking criticism that judges are simply choosing jurisprudence that takes them to the conclusion that they want to reach without engaging with other kinds of cases. Even though the outcome in Nitisha is something that I would agree with, methodologically I think it is questionable as to how the court got to that conclusion.

But just to go beyond the Article and to make a quick final point, I think that something that will really help where we are right now, with our understanding of equality and non-discrimination is to propose a very clear substantive test for what these concepts mean constitutionally because to me that kind of substantive test is crucial to act as a load staff for courts going forward, and once this conceptual understanding is in place, the doctrinal debates will themselves become easier to settle because then there is sort of a strong constitutional anchor to tie a specific doctrinal interpretation to. And on that line a consistent or nuanced understanding is difficult to cull out from Indian case law simply because as Shreya also mentioned, courts really pull in different directions at different points of time, and that being said, I think there are lots of fantastic work that has been done and is being done on what non-discrimination means for India and this is something we do in our Article as well, we propose or we begin to propose a substantive test for what discrimination could actually mean and it’s also something I do in my PhD where I look at what substantive equality means constitutionally in India by conducting this rigorous exercise in constitutional interpretation. To me, that is central in defining where our equality and non-discrimination jurisprudence should go next.

 

Eeshan

Gauri, thank you so much for that answer. I just have a quick follow up- so you mentioned that there is an absolute need for a doctrinal test and a clear substantive test on what equality and discrimination should look like. So can you perhaps suggest a framework maybe from some other jurisdictions that do you think have a robust framework of this sort that we can perhaps borrow from- just some elements that we could use as the substantive test

 

Gauri

Sure, I think a good place to start is what we propose in our article itself, I’m sure Shreya would also have things to say about this. What we say in our article is that discrimination is not just any differential treatment based on a prohibited ground because that’s how it’s classically understood right every time you make a distinction based on sex, then that is discrimination and that’s where it stops so it’s literally about treating someone differently based on a prohibited ground. But we propose a substantive understanding of discrimination which says that discrimination is a kind of differential treatment that perpetuates the disadvantage of a historically disadvantaged group and this is not a test that is alien to Indian constitutional jurisprudence and it’s a point that we make in the paper as well so if we look at some – I’m qualifying this by ‘some’ – of the affirmative action jurisprudence especially say Indra Sawhney and that line of jurisprudence which holds that affirmative action under 16(4) is not an exception to 16(1) but it is rather a part and parcel of 16(1). So 16(4) allows you to treat certain disadvantaged groups differently to remedy that historical disadvantage and by recognising it by saying that it is not even discrimination at a prima facie level, what the court is saying is that that form of differential treatment which attempts to remedy historical disadvantage is not discrimination at all, which to me is very much in line with that substantive understanding of discrimination that we put forward in the Article so I don’t even think we need to look outside India that much as kind of seeing whether this understanding has roots within the constitution and then when we get to a state where courts have to read the provisions and they could go either way when we look at what the constitution understands, we anchor how the courts read the provisions to what the constitution provides and to me the constitution provides this sort of substantive reading, but that’s for when my research is published.

 

Eeshan

Alright, thank you! Shreya, would you also like to come in with what you feel should be the equality code or what you feel should be some of the tests that we should be looking at?

 

Shreya

Yes, thanks Eeshan. I will just second Gauri that a more methodical approach is needed here rather than jumping to the standard of review. Gauri mentioned that we have proposed in the Article the three-part test and we hope more and more people think that that’s something to rely on because it is something that we derive from the existing constitutional jurisprudence itself. So good feminist work is both doctrinal but also progressive in the sense that we have one eye on what’s happened so far, we’re not rejecting all that’s been done, but we are happy to surmise and as a conjecture provide a test.

The third part of the test really has you think deeply about if there is a distinction or an impact which is based on a certain ground or on a group which is historically disadvantaged then is that distinction or impact discriminatory in fact? That’s what you would think the South African Constitutional Court is asking when it’s asking, there has been discrimination, but is it unfair discrimination? Why is discrimination wrong? What’s the harm of discrimination?

That substantive understanding is necessary and I think a little bit more pouring into what we think is wrong about discrimination will help us get the right answers for the other things. Which grounds are more problematic? Why are they more problematic? Which are less problematic? What standard of review should be applied? What kind of evidence do we need? Are statistics important? All of those doctrinal issues will fall in place once we put a little bit more emphasis on just refining the substantive core of 15(1) and I think this is what we have tried to do in the article.

 

Eeshan

Okay, Shreya thank you for that answer on strengthening the substantive version of our discrimination framework. Now for Gauri, and this is on your attempt to bring the discrimination lens to abortion- in that case, do you think one of the things judges would look at is the role of the comparator and how do you think that would play out in the case of abortion?

 

Gauri

Yeah, I mean that’s a really great question, and that is precisely the question that stumps courts when it comes to applying discrimination law to reproductive rights. And we see this as recently as the Dobbs decision from the US Supreme Court in which the court basically said that this is not an issue of treating men and women differently because only women get pregnant and men don’t and, therefore, this is not even an issue of discrimination for equality law in the United States and I mean, of course, that has many issues.

First, what do they understand by discrimination and then second, who is a man and who is a woman? All of that is really under contestation right now. And that kind of blanket statement really does not work anymore. But to go back to something that both of us, Shreya and I said earlier, about what discrimination actually means- I think that a particular understanding of equality requires that there be a comparator to establish a claim of discrimination and that particular understanding, we can for now call it formal equality. So formal equality says that equality is violated when people who are similar are treated differently. So then automatically there is a similarity requirement that is imported into the understanding of equality and courts immediately have to determine who is similar and who is different and then pregnancy often fails the test. And so, in other jurisdictions what they have done is that they say that, you know, a pregnant woman is similar to say a sick man and therefore we ought to treat pregnant women how we treat sick men, which is obviously ridiculous. Pregnancy is not a sickness and this is at no level the right comparator to draw.

So, the way that, I think, for the courts to go forward is to abandon the comparator requirement rather than try and find an appropriate comparator and that abandonment is only going to come when we change and spend time thinking about what that conceptual grounding for equality and non-discrimination is. So, to go back to something we were talking about quite extensively before and if we have a substantive understanding of discrimination and equality. Then, automatically, that comparator requirement goes away because you no longer looking for equal treatment among equals. That’s no longer the baseline from which you assess equality and the baseline changes. So yeah, so the crux is, let’s spend time thinking about this very important question.

 

Eeshan

Shreya and Gauri thank you so much and I’m really excited to see – Gauri – your upcoming work on what the answers to these difficult questions should look like. This has been extremely enriching for me, and I’m sure our audience would feel the same. Thank you so much Shreya and Gauri.