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The trade-off between protection and freedom

By Oishik Sircar

Following the recent debate over banning women from working nightshifts, women's groups need to ask why it is that women can only be protected by curbing their freedom. If women want to step out of the 'private' sphere into the 'public' sphere, must they give up all expectation of protection from sexual violence by the State?

In early May, the Karnataka government planned to ban nightshifts for women in shops, commercial establishments and hotels. The ban was not to be applicable to women working in the IT and bio-technology sectors, besides hospitals and other essential services.

The idea behind the ban was ostensibly to check rising crimes against women. As the state Labour Minister Iqbal Ansari said while announcing the ban: "Women employees will not be allowed to work after 8 pm... I am sure the legislation will come to the aid of lakhs of helpless working women and will be treated as a measure to protect them." This decision came on the heels of the recent rape and murder of some women BPO employees. The government planned to invoke an existing provision in the Labour Act, 1961, banning nightshifts beyond 8 pm in shops and commercial establishments and hotels.

The ban attracted tremendous opposition from women's groups. Women workers and the Karnataka State Women's Commission also condemned the government's move. The argument was that such a move violates Articles 14 and 15 of the Constitution of India, which guarantee the right to equality and non-discrimination on grounds of sex. There were protests from the industry sector as well, which claimed that in this age of grueling commerce and cut-throat competition such a retrograde move would only affect the work and production quality of enterprises that employ women during nightshifts.

Surprisingly, a couple of weeks later, the government succumbed to the protests and revoked the ban.

The debates that were making the rounds on television talk-shows and in newspaper editorials when the ban was proposed harped primarily on the idea that banning women from working nightshifts was ultra vires the Constitution. If at all the debate was stretched further, it addressed the vulnerability of women to sexual violence and the kind of checks on their dress and demeanour that can bring down crimes against women.

This argument follows the classic 'protection versus freedom' trope, where women's vulnerability can only be protected by curbing their freedom. In other words, if women wish to step out of the 'private' sphere and work and access the 'public' sphere - as men do - they need to give up on the thought that they will be protected from sexual violence by the State. That is the trade-off they will have to live with. And if they do wish to be protected against sexual violence, then they better not leave their allotted place - the 'home'.

As if the home was any safer than the workplace! The response of the State is never about ensuring safer working conditions for women - the only way it can imagine women's safety is by disallowing them from coming out of their homes.

As soon as the ban was revoked all debates on this issue disappeared from the news radar. Though women's safety and vulnerability has been a perpetual bone of contention for women's rights groups and activists, the issue of the Constitutional guarantee to equality has always been looked at as an unquestionable, and often useful, standard for campaigning and advocacy purposes. Articles 14 and 15 have been used on several occasions to challenge laws that discriminate against women. But the biases inherent in the judicial interpretation of these Constitutional provisions have not been sufficiently explored.

What constitutes the right to equality under the Indian Constitution is equal treatment only in respect of the law. But the meaning of law extends also to administrative rules and procedures that flow from legislations formulated by agents of the State. Un-equal treatment meted out because of the existence of any other form of structural disadvantage is outside the scope of this provision, as are acts of un-equal treatment carried out by non-State (private) actors. Any law found to be ultra vires Article 14, can be declared void ab initio, as per Article 13.

A plain reading of the right to equality tells us that the Constitution imposes fetters on State action to ensure that it refrains from doing anything that can deny the 'citizen' (or subjects in the territory of India) two primary guarantees in the provision - that of right to equality before the law, and equal protection of the law.

The first expression 'equality before the law', is a declaration of equality of all persons within the territory of India, implying thereby the absence of any 'special privilege' in favour of any individual. Every person, whatever his/her rank or position, is subject to the jurisdiction of the ordinary courts. The second expression, 'the equal protection of laws', which is a corollary to the first expression, directs that equal protection shall be secured within the territorial jurisdiction of India in the enjoyment of their rights and privileges without favouritism or discrimination.

However, the juridical application of Article 14 operates on the basis of a process called 'intelligible differentia', which means reasonable classification. The equality guarantee has been interpreted by courts as a prohibition against unreasonable classification, and it does not require that the law treat all individuals equally. The rule is that 'like should be treated alike' and that 'un-like should be treated differently'.

As pointed out by feminist legal scholars Ratna Kapur and Brenda Cossman: "This understanding of equality clearly follows the formal equality approach where equality is equated with sameness. In effect, sameness becomes the entitling criteria for equality - only if you are same you are entitled to be treated equally. The 'sameness' test requires that the court begin by defining the relevant groups or classes for comparison. If the court defines the classes as different, then without any further analysis, difference justifies the differential treatment. When groups are not classified to be same, or similarly situated, they do not qualify for equality, even if the differences among them are the product of historic or systemic discrimination. Thus, the first step in determining whether Article 14 has been violated is a consideration of whether the persons between whom discrimination is alleged fall within the same class. If the persons are not deemed to be similarly circumstanced, then no further consideration is required."

Although the Karnataka ban on women was pulled out, the Factories Act continues to bar women from working nightshifts. Section 66 of the Factories Act 1948 prohibits women from working in factories during the night, on grounds that they are women, and thus vulnerable to violations. If one were to challenge this section as violative of Article 14, because it treats men and women unequally - such a challenge would fail because according to the doctrine of 'intelligible differentia', the classification between men factory workers and women factory workers is reasonable, and thus differential treatment between them is justified in law.

Article 15 extends the equality guarantee of Article 14, by providing for the right against discrimination on the basis of religion, race, caste, sex and place of birth. Forms of discrimination that fall within the purview of Article 15 are any disability, liability, restriction or condition imposed on the basis of the above prohibited grounds.

In case of discrimination on the basis of sex, Article 15(3) makes a special mention, where it mandates the State to make special laws for women - in effect, discriminating in their favour. A stipulation of this kind suggests that the provision takes into account the historical and systemic processes through which discrimination against women has been effected, and thus makes the State accountable for doing away with it through 'protective' laws. However, in the absence of a substantive equality approach in the judicial interpretation of Article 15(3), there is little consideration of whether the laws actually 'protect' women, or create 'protectionist' measures to safeguard the honour and chastity of 'good women'. Thus, if the Karnataka ban was indeed implemented, and then challenged on the basis of Article 14, it could get easily struck down on the grounds that Article 15(3) allows special protection for women, and that 'women working in the nights' are a reasonable classification in comparison to 'other respectable women' who work during the day, and that the new law would actually protect women.

The response to protectionist measures of this kind is not simply to challenge existing laws by using the Constitutional mantle of equality, but to take a closer look at the way in which the judicial interpretation of the Constitution has limited the understanding of equality for us. It is for this reason that constant engagement with the law becomes necessary. In the process of encounters with the guarantees of equality and non-discrimination, the fissures in the Constitutional armour of fundamental rights protection are exposed. This does not mean that these standards should be ignored - it simply allows for the erection of a more strategic politics for engaging with the law.

(Oishik Sircar is a human rights lawyer)

InfoChange News & Features, June 2007