So rather than providing a means for ending hierarchical arrangements based on group rank, formal equality can be a way to maintain unequal status. Indeed, its success can be inconsistent with substantive equality, which may require social change. Its methodology of ascertaining reasonableness in categorization is to reflect reality as it is. If a person has managed to escape their group's hierarchically imposed status, or manages to appear equal in spite of social assignment as an unequal, the model works for them.
But it is not designed to work for those who have not escaped their status—which, by definition, most members of socially subordinated groups will not have. It will thus become reasonable, not arbitrary, to reflect their existing status—that is, the unequal status quo—in law. Equality becomes a right such that those who need most are least well situated to claim, and those who need least are most successfully positioned to assert.
This trend has continued, with exceptions, to the present. People who are already equal, in other words, can most readily claim injury when treated as though they are not equal. This is not to say that people who lack qualifications or merits should be treated as though they have them. It is to ask, when is the equality paradigm going to dismantle large group-based inequalities? Where does this model leave those who are structurally unequal on the basis of sex? The result of existing equality theory's logical application has been that the deepest and most widespread inequalities, including those of sex, those inequalities that inflict the greatest damage and have become the most socially institutionalized, including those stereotypes that have become real and those cultural oppressions that have become internalized—are addressed least.
The insightful observation by Justice B. Sen, A. The point is not that it is impossible, with sufficient ingenuity and benevolent determination and smart lawyering, to make this model work for some equal ends on the margins. The point is both that those ends are marginal, and that it is just as possible, if not more so, to use this theory to entrench existing social inequalities, especially where the vision and will to produce equality are lacking.
If an equality doctrine can go either way, depending on extrinsic inputs, is it really an equality doctrine? If it depends on goodwill and political commitment to work, its secular tendency will be to fail exactly for those people and at those times that the egalitarian spirit is lacking, which is just when it is needed most. And that, in fact, is what has arguably happened. Sex equality laws exist nearly everywhere, and sex equality exists virtually nowhere. Growing underneath, throughout, and next to this dominant model has been another quite distinct equality theory originated by peoples subordinated on the basis of race and sex—an alternative conception that has animated some legal work against racism in the United States and against violence against women worldwide.
It takes the position that equality is not predicated on sameness or vitiated by difference but is a practice of social subordination, second-class status, of ranking as inferior and superior, producing and produced by historical hierarchy. In its view, the opposite of equality is not difference but hierarchy. Equality thus requires promoting equality of status for historically subordinated groups, dismantling group hierarchy. The Supreme Court of Canada, seeing that the Aristotelian paradigm as applied would not effectively produce social equality in a diverse society, embraced this alternative contextual notion as its standard for measuring the constitutional equality of legislation.
Law Society of British Columbia,  1 S. Sexual harassment law, which first argued that being in a subordinated sexual position was not a sex difference that justified sexual abuse but was rather a violation of sex equality rights, illustrates this alternative model. If women's and men's sexual differences mean that men can sexually harass women—in the standard model's terms, treat them differently than they do men sexually because women and men are sexually different—either sexual harassment is not sex discrimination or a new vision of equality is needed.
One can agree with earlier courts that sexual harassment is not sex discrimination, 15 or see that sexual harassment is precisely what sex discrimination looks like and imagine a new equality model: one neither premised on sameness nor negated by difference, neither punishing difference nor privileging sameness, but targeting social hierarchy by making civilly actionable as sex discrimination a practice through which members of one social group have been permitted to treat others as inferiors.
For this history, see Catharine A. Other examples include the concept of rape as genocide in Kadic v. Regina,  1 S. Canada,  2 S. Thus was the Gordian knot cut that otherwise prevents equality law from remedying subordination. Formal equality can preclude substantive equality because in its calculus, difference—inequality can be one—may justify worse treatment, thus preventing formal equality logic from addressing social hierarchy simply because it empirically exists. The status quo distribution of entitlements and resources is thus built into the traditional Western equality analysis in which dominant groups, who are just as different from subordinated groups as the reverse, have not had to be like anyone else to get and keep what they have.
The alternative theory counters this deep bias by targeting, directly and substantively, the problem of the systemic social subordination of groups that has so comfortably coexisted with the promise of equality the law has made but failed to deliver upon for so long. To put it slightly differently, when inequality is socially institutionalized, it creates distinctions among people that can themselves serve as reasons for treating people worse not only will appear to be, but indeed will be, reasonable and not arbitrary at all.
When reasonableness is established by mirroring society as it is, inequality is validated by an unequal status quo. The alternative conception begins not with these abstractions of sameness and difference but in the context of asking whether a concrete, historical, social hierarchy exists. On the assumption that no social group is inferior to any other, if its members are then found unequally ranked or treated or situated socially, social inequality has occurred, and laws and policies and practices that collaborate in the social inequality of that group are illegal.
Courts are well suited to apply this approach because it is precisely concrete historical reality that comes to courts through the facts of cases they are asked to adjudicate. Asking whether a particular group is historically disadvantaged, as the alternative conception does, is a factual inquiry that builds historical context in. It requires courts to look at the reality of social hierarchy, not away from it. It is subject to evidence. It makes the recognition of historical reality into an adjudicative principle, rather than a disreputable embarrassment to principle or a realist strategic consideration for the cynical litigator.
This alternate theory requires that the law promote equality for subordinated groups by ending subordinating practices that promote group-based disadvantage.
It deserves the name of substantive equality because it takes substantive inequality as its point of departure and produces equality in substance at its point of arrival. India's equality jurisprudence has long exhibited inklings of formal equality's limits, undertows, intransigence, and backlash potential, and it displays a vigorous sense that a more substantive notion of equality is needed. As far back as , Justice K. Subba Rao's dissent in Lakhman Dass famously challenged classification theory as the be-all and end-all of equality.
A similar perception animated the separate opinion by Justice P. State of Punjab, A. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality: the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification. This was quoted with approval by Justice Krishna Iyer in Col. Iyer v. Balasubramanyam , 1 S. Once the potential dynamism inherent in the equality concept is revealed in claims by subordinated peoples, as foregrounded in the alternate conception, a rich and substantive equality tradition is revealed beneath the existing equality jurisprudence in India.
Along with the prominent cases on caste, perhaps its most visible exemplars, 19 some cases on women's rights, by taking the social context of sex-based disadvantage clearly into account, foreshadow and embody a substantive equality approach to sex. The jurisprudence upholding sex reservations in employment, 20 along with some asymmetrical lower court equality rulings permitting what is sometimes termed discrimination favorable to women, 21 and the sexual harassment rulings in Vishaka 22 and Chopra 23 drawing on international law, along with some decisions on equal pay 24 and comparable worth, 25 are all animated by a substantive sex equality concept.
One Supreme Court case recognizes that prostitution is anathema to sex equality. Union of India, Supplementary 3 S. Union of India, 5 S. Union of India, 6 S. State of Andhra Pradesh and Ors, 4 L. See Dattatraya Motiram More v. State of Bombay, A. Vijaykumar, A.
Reservations are what in the United States are termed quotas and affirmative action. Dattatraya Motiram More v. State of Bombay, supra note 20; Thamsi Goundan v. Kanni Ammad, A. Despite the sometimes positive outcomes, the language of inferiority is often problematic in these cases and is not abating.
See, e. Vishaka v. State of Rajasthan, A. Apparel Export Promotion Council v. Chopra, 1 S. One strong example is the decision by Chinnappa Reddy in Randhir Singh v. Union of India , 1 S. Audrey D'Costa, 2 S. Gaurav Jain v. Union of India, 8 S. See also Vishal Jeet v. Union of India, 3 S. Kirpal et al. At times, the antihierarchical outcomes wrongly lean on biological differences for their rationale, but the awareness of hierarchy continues beneath the lines. Fundamental to these decisions, India's constitutional text holds great potential for ameliorating the subordination of women to men.
A signal beacon compared with many Western equality guarantees, the language of article 15 recognizes in the structure and provisions of the Constitution of India itself that sex has been made into a social disadvantage for women, in violation of the equality principle. As does Canada's section 15 2 , India's article 15 3 specifically suggests a substantive recognition of women's unequal social status by permitting special provisions to rectify their inequality.
As a result, steps to end the hierarchy of men over women are not cast as violations of an equality rule that are nonetheless permitted. Rather, because such steps promote equality, they are not exceptions to an antidiscrimination rule; they are not discrimination at all.
Certainly, one could not legally promote women's in equality by law consistent with article Such a substantive awareness is not present as a basis for women's equality rights in most other countries in the world, particularly in the West, far less is it given textual form. The provisions of article 15 offer a substantive lens through which women's equality rights can be read.
Formal equality could be confined to article Article 15, through article 15 3 in particular, could provide the basis for a substantive equality doctrine that stands against disadvantage: the hierarchy of men over women. If the sex equality in substance achieved for women under other such legal doctrines were combined with developments in equality law previously in search of a unifying rationale, a theory to match the vision and text already there would be supplied, and the pieces would fall into place.
Union of India , A. See Mahadeb Jiew v. Sen , A. Tukaram v. State of Maharashtra, 2 S. The same would be true of the Suman Rani rape case, Premchand v.
State of Haryana , Supp. Other cases show a far more progressive approach to rape by the Supreme Court of India.
However, none of them grasps that it is, legally, a practice of sex inequality of constitutional dimension. The Court's recent rape jurisprudence, which ranges from abysmal to quite good, would be regularized by such a recognition. Compare, e. Kishanlal, 2 L. State of Madhya Pradesh 4 L. Thakara Besra and Anor, 2 LRI finding it most unlikely that the victim would injure her private parts to implicate the accused falsely and Malkhansingh and Ors v.
State of Madhya Pradesh, 3 L. The Court's repeated use of rape myths and stereotypes, such as the woman of easy virtue said to be habituated to sexual intercourse and the requirement of imminent outcry or proximate reporting well-criticized in State of Himachal Pradesh v. Gian Chand , 2 L. India's jurisprudence having come this far for women, bearing such enormous promise, one major exception stands out.
Out of step is the judicial reluctance to apply sex equality principles to the personal laws. To varying degrees, the personal laws of all of India's religions have contained facial and applied sex-based distinctions to women's disadvantage. Yet in the family area, the courts often permit them, even as the provisions are strained sometimes to the breaking point to provide an approximation or appearance of gender equality in result.
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In the employment setting, the apex Court unhesitatingly invalidated a rule that required a woman, but not a man, serving in the Indian Foreign Service to obtain permission to marry from the government. Muthamma v. Union of India, A. One wonders where the Court's clarity on sex inequality has gone when reading its upholding in of the property partition provisions of the Hindu Succession Act. Sons of intestates were there allowed unilaterally to block division of property on sale of a dwelling by living in it, regardless of their marital status, so that daughters would inherit nothing until they vacated, while the daughters could stay on in the house only if they were unmarried.
The mother was the child's guardian only in lieu of the father, not in her own right, her guardianship one step behind, the size of his absence. They also allow husbands but not wives to divorce unilaterally without fault, institutionalize dower arrangements that arguably amount to selling women in marriage, grant male heirs twice the share of female heirs, and do not allow mothers to be guardians of minor children.
Susheelabai Smt , 3 S. This provision was changed in Indian Divorce Amend. Act, 51 of , Substitution of new sec. Hidayatullah and Arshad Hidayatullah eds. Tripathi Private Ltd. Even when legal decisions in the family area favor women's equality in their outcomes, as some have from Shah Bano 37 to Latifi , 38 courts resist predicating the results on sex equality grounds. It is not unusual in such cases for there to be no discussion of sex equality in the legal sense at all. Courts appear more comfortable construing statutes to interpret personal laws within religious dictates, despite some embarrassment to canons of statutory interpretation and the risk of further criticism of the kind Shah Bano generated when the Court was bitterly resented for presuming to construe religious concepts in the family area without the religious authority to do so.
It appears to be more important to leave determinations of family life to religion than to deliver on the constitutional and international sex equality rights that the Court has shown itself so capable of guaranteeing in other areas, and the challenges to family laws have so amply justified. Ahmed Khan v. Shah Bano Begum A.
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Danial Latifi v. Union of India, 7 S. This is also a fault of many Canadian decisions in which women prevail in outcome but the Supreme Court of Canada refuses to predicate their victories on sex equality principles that would solidify and extend rights and raise their legal status.
Examples are Regina v. Canadian Newspapers,  2 S. In both cases, women's equality in substance was affirmed and considerably strengthened by the outcomes, but the doctrinal recognition of equality rights as the basis for the rulings was not commensurate. A more basic reason behind the reluctance to apply sex equality principles to personal laws is the tired but far from toothless charge that sex equality is a Western and hegemonic idea that shows insufficient respect for cultural diversity.
As the initial analysis showed, conventional equality analysis is Western, and the alternative conception sketched is not particularly so. Also, women are not equal to men in any Western culture known. Clearly, sex equality is not very Western, even as the norm of sex equality is hardly unknown in non-Western cultures. To give the West equality obscures its presence, its diversity and dynamism, as an ideal and partial reality around the world. It also distorts and insults the indigenous movements of women for equality everywhere—as if their desire for equality were not their own, as if they are not autonomous actors capable of recognizing and acting on their own interests.
It also obscures their leadership in the global movement for the liberation of women. State of Bihar, 5 S. The charge that sex equality is a foreign invention is a feature of men's culture in most places. It is the near-universal response by men around the world to women seeing their own value in terms men have denied them, when women oppose their denigration as all their culture has to offer. Non-Western women need only compare their treatment, not with Western women's but with that of men in their own cultures to see the problem.
The idea that Western feminism functions to justify attack on minority religions to support the superiority of the West and to legitimize its intrusion has a lot of currency—and not without reason. But what the West has to gain in promoting equality for women in India today, an equality it does not practice or often even preach at home, is seldom specified. It is beyond irony that the principle of cultural particularity is so often invoked by Westerners in defense of men of subordinated minorities subordinating women within their own cultures, and so little respected otherwise.
A Case Note on Martinez v. Finally, sometimes the wrong people have the right idea, even if they express it in appalling ways. The historical example comes to mind of eleven-year-old Phulmani Bai, who died in from sexual intercourse with her husband. The parliamentary initiative to raise the age of marriage from ten to twelve was opposed, even by many who favored it, because the British—who were said thereby to be interfering with religious affairs and who couched their objection in religious terms—were advocating the legislation.
Without doubt, young women's welfare became a pretext for colonialist cultural intervention. Does that mean nothing should be done? Defending something that hurts your own people because people who hurt you are against it seems to me a sign of a colonized mind. News reports provide the basic events. T imes, Feb. T imes, Jan. T imes, Sept. T imes, Aug. The underlying, almost axiomatic reason for the reluctance to invalidate sex-biased family laws appears to be the fact that these laws involve the family.
In the family, women are required to take responsibility for children and are often given few resources to care for them and little voice in decisions that affect their joint lives. The family, across cultures, is a site of violence against women, a place where women are violated with a distinct and almost perfect impunity.
In interaction with the rest of society, in which women are discriminated against in employment on the basis of sex, they are impoverished. Krug et al. Commission on Human Rights, 50th Sess. States are far from uninvolved in this so-called personal sphere. They enter it, among other ways, by legislating and enforcing family law that effectively supports these practices. One kind of equality question is posed if the state never enters an arena at all.
But once entering, under well-established constitutional and international principles, they have to enter on a sex-equal basis. Certainly when states legislate sex discrimination, enforcing the subordinated social status of women to men on the lines just described, constitutional and international obligations are violated no less than when states act officially in any other area of society to the disadvantage of one sex.
Nonetheless, we encounter a pervasive and categorical reluctance to recognize sex equality rights in the family. This reluctance is not unique to any one culture but rather is shared by patriarchal cultures and most cultures are male dominant, although forms vary around the world. The Supreme Court of the United States, for instance, so far looks at family law under equality rubrics only for facial distinctions, 47 when in reality family law in the United States operates as a dynamic engine for impoverishing women and producing and reinforcing their unequal status as a sex society-wide.
But no sex equality standards have been applied to the results or standards of either process—with the result, for example, that the marriage contract remains unscrutinized say, for sub rosa voiding of rape law where marital rape is not recognized and women's standard of living is permitted to plummet after divorce. In the result, the family is publicly regulated to women's disadvantage. Orr , U. Feenstra , U. Sidoti , U. A partial exception is Nevada Department of Human Services v.
Hibbs , S. See S ex E quality , supra note 2, at — In McKinney v. University of Guelph ,  3 S. Section 15 does not impose positive obligations on governments to counteract inequalities in Canadian society Auton Guardian ad litem of v. British Columbia Attorney General ,  3 S. However, if government does act, it must not discriminate Eldridge, supra ; Vriend v. Alberta ,  1 S. Cunningham ,  2 S. Hislop ,  1 S. Section 15 of the Charter does not apply to discrete events that were completed before the section came into effect on April 17, Mack v.
Canada Attorney General , 60 O. However, it may apply to government action post that results in differential treatment based on a continuing status established prior to that date Benner v. Canada Secretary of State ,  1 S. Since its first section 15 case through to its more recent pronouncements, the Supreme Court has consistently characterized the guarantee of equality as substantive. Canada ,  1 S.
Attorney General of Canada ,  1 S. Canada Safeway Ltd. In Law v. Canada  1 S. The test can be stated as:. After the claimant has satisfied the first step of the section 15 1 analysis, it is open to the defendant government to establish that the impugned distinction qualifies under section 15 2 as an affirmative action-type measure, designed to ameliorate the conditions of a historically disadvantaged group.
If the requirements of section 15 2 elaborated below are met by the government, this ends the analysis as there is no discrimination within the meaning of section 15 1.
Fundamental rights in India
The focus of section 15 1 is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of section 15 2 is on enabling governments to pro-actively combat discrimination. In addition to being purposive and substantive , the section 15 analysis is fact-driven, highly contextual and comparative. The role of comparison in the section 15 analysis has evolved. Prior to Kapp, supra , a number of Supreme Court decisions paid considerable attention to the specifics of framing the appropriate comparator group.
Canada ,  3 S. At the same time, it confirmed that section 15 is inherently comparative in that claimants have to establish distinctive treatment which presupposes comparison with others based on a prohibited ground paragraph The burden of proving a limit of section 15 lies with the claimant Law , supra at paragraphs The amount and nature of the evidence required can vary greatly depending on the nature of the claim.
Proof of legislative intent to discriminate is not required; the claimant must establish that either the purpose or the effect of the law or action is discriminatory Law , supra at paragraph In relevant cases, it will be for the government to demonstrate that a measure falls within the scope of section 15 2 and is therefore not discriminatory Kapp, supra at paragraphs While the courts generally require evidentiary support for a claim of discrimination, as a practical matter, the claimant does not have to adduce evidence to prove every element of the analysis Law , supra at paragraph Nor does the claimant have to adduce data or other sophisticated social science evidence not generally available in order to establish a limit of section 15 1 ; where appropriate, the courts may rely on judicial notice or logic Law , supra at paragraph However, the claimant does have the burden of ensuring that the court is aware of the relevant historical, social, political and legal context of the claim Law , supra at paragraph Quebec Attorney General ,  4 S.
In such cases, it is alleged that a particular law or rule, while neutral on its face, has a disproportionate adverse impact on a group characterized by a prohibited enumerated or analogous ground of discrimination Eldridge, supra at paragraphs To date, few decisions of the Supreme Court have dealt with adverse effect discrimination, perhaps because of the significant practical difficulties involved in adducing sufficient evidence to demonstrate adverse impacts on particular groups, such as women Symes v. Canada ,  4 S. Where adverse impact claims have succeeded under the Charter, they have been based on self-evident societal patterns amenable to judicial notice, such as the disadvantage faced by deaf persons seeking to access medical services without the aid of sign language interpretation Eldridge, supra.
However, where the adverse impact alleged is not apparent and immediate, there must be evidence of a link between the law and the adverse impact on the basis of an enumerated or analogous ground Taypotat , supra at paragraphs A distinction may be made expressly by a law or government action e. Another way of determining if there has been an adverse distinction is to ask whether the government has failed to take into account the already disadvantaged position of a group within Canadian society resulting in substantively different treatment based on personal characteristics e.
The issue of whether the government intended to cause the disadvantageous distinction is not relevant to the inquiry. This part of the analysis focuses on the comparative effect of government action on the claimants and other groups. The first inquiry whether the law creates a distinction based on a ground can be seen as imposing a threshold requirement in that a claim will fail if the claimant cannot demonstrate that a government law or action withholds a benefit that is provided to others or imposes a burden that is not imposed on others, based on an enumerated or analogous ground Reference re Same-Sex Marriage ,  3 S.
Analogous grounds are similar to the enumerated grounds in that they identify a basis for stereotypical decision-making or a group that has historically suffered discrimination. Analogous grounds describe personal characteristics that are either immutable characteristics that people cannot change or constructively immutable characteristics that are changeable only at unacceptable cost to personal identity.
Once a ground has been found to be analogous, it will always be a ground in the future Corbiere, supra , at paragraphs and To date, the Supreme Court has held that the following are grounds analogous to those enumerated in section 15 1 :. In Cunningham v. Court of Appeal found that registration as a status Indian is an analogous ground, though the Supreme Court declined to rule on the issue, deciding that there was no discrimination in any event.
However, this does not preclude a claimant in the future establishing that on-reserve residence constitutes an analogous ground. It is also important to look to lower court decisions as well as to grounds set out in human rights legislation for other possible analogous grounds, such as family status or gender identity or expression.
While there is still no Supreme Court guidance on point, lower courts have generally found that poverty in and of itself is not an analogous ground see generally: Alcorn v. Canada Commissioner of Corrections , F. See, however, Falkiner v. Canada ,  2 F. There can also be discrimination as between members of a group e. Laseur ,  2 S. Pregnancy, which is distinct from but fundamentally interrelated with gender, is an example of a personal characteristic that does not apply to all members of the group in question women at any given time, which has been held to be the basis for discrimination under human rights legislation.
See generally: Brooks, supra. Embedded analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination Corbiere , supra at paragraph