Women are subject to patriarchal mindset which regards them as caregivers, homemakers: SC

The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution.

New Delhi: Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus they are burdened with an unequal share of family responsibilities, said the Supreme Court on Thursday.

The top court said that the true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the workplace. It noted that the provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution.

The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. "But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees, the bench comprising a bench of Justices DY Chandrachud and Vikram Nath said.

The bench affirmed a Kerala High Court order that upheld the validity of a circular withdrawing the Inter-Commissionerate Transfers (ICT) saying that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group B' Posts Recruitment Rules of 2016 do not contain any such provision. It said, Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access.

The bench said that this Court has spoken about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman's being from the outset, including reproduction, sexuality, and private choices, within an unjust structure. The Office Memorandums (OMs) which have been issued by Department of Personnel and Training (DoPT) from time to time recognized that in providing equality and equal opportunity to women in the workplace of the State, it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace, the bench said.

It added that the true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the workplace. The DoPT OMs dated April 3, 1986, August 23, 2004, July 8, 2009, and September 30, 2009, recognised the impact of underlying social structures which bear upon the lives of women in the workplace and produce disparate outcomes coupled with or even without intent to discriminate, the bench said.

Referring to a 2021 verdict of the top court delivered by a bench headed by Justice Chandrachud, the bench said that this Court has emphasized that discrimination both direct and indirect is contrary to the vision of substantive equality under Articles 14, 15, and 16 of the Constitution. It added that the realm of policymaking while determining the conditions of service of its employees is entrusted to the Union for persons belonging to the Central Civil Services and the States for persons belonging to their civil services.

This Court in the exercise of judicial review cannot direct the executive to frame a particular policy. Yet, the legitimacy of a policy can be assessed on the touchstone of constitutional parameters. Moreover, short of testing the validity of a policy on constitutional parameters, judicial review can certainly extend to requiring the State to take into consideration constitutional values when it frames policies, the bench said. It added that the State, consistent with the mandate of the Constitution, must take into consideration constitutional values while designing its policy in a manner that enforces and implements those values.

The State's interference in the rights of privacy, dignity, and family life of persons must be proportional, it said. The bench said that this Court emphasized that discrimination is not always a function or product of a conscious design or intent. Discrimination may result by an unconscious bias or a failure to recognize unequal impacts which are produced by the underlying societal structure, it said. The top court said that the other ground of challenge which has been raised is that the impugned circular does not take into account the needs of disabled persons in the State's workforce.

The Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society, the bench said, adding that the formulation of a policy, therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity.

PTI