Leela v State of Kerala - A case commentary
First appeared on https://theconstitutionalcorridors.com/guest-post-a-case-for-non-discrimination-of-women-in-workplace-on-the-basis-of-working-hours-a-critique-of-leela-v-state-of-kerala/
The case of Leela v State of Kerala (hereinafter referred to as Leela) arose in the Kerala High Court by way of a writ petition by an aggrieved woman employee who was denied the post of a Supervisor (Binding) by the Kerala Books and Publications Society, despite her requisite seniority.
This denial of promotion was due to a provision embodied in Section 66(1)(b) of the Factories Act [(hereinafter referred to as S.66(1)(b)], which provides that ‘no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.’ In her place, Mr. Pillai [the third respondent] was granted a promotion viz, Supervisorship, he being junior to the petitioner notwithstanding.
The High Court of Kerala upheld the denial of promotion and adjudged S.66(1)(b) of the Factories Act to be constitutional.
Analysis
The petitioners’ primary claim is that S.66(1)(b) of the Factories Act suffers from the vice of discrimination and thus violates Article 15, along with 14 and 16 of the Constitution of India. Mr. K.M Joseph, the counsel for the petitioner, contends that the impugned provision places an embargo on the right of women to work during the period from 7 pm to 6 am. This embargo, it is argued, amounts to discrimination based on sex, thus violative of equality before law and the principle of non-discrimination. Mr. Joseph argues that arguments for ‘protection of women’ and ‘regulating their working conditions’ to prevent harm are anachronistic Victorian notions that find no acceptance in the 21st century.
The legal issue, thus framed by the court was, ‘Whether Section 66(1)(b) of the Factories Act, 1948 discriminates against women, or does it embody a special provision in their favour?’
The Respondents principally argued that there’s no discrimination solely based on sex. To illustrate, the Senior Government counsel- Mr. Roy Chacko contended that the provision merely embodies a rule to regulate the working conditions of women, which puts it within the ambit of Article 15(3) of the Constitution. Thus, it doesn’t suffer from the vice of arbitrariness or discrimination.
Additionally, it was argued by the Kerala Book Publication Society that since it is bound by the statutory provisions of the Factories Act, it cannot allow women to work beyond the prescribed hours, i.e., at night. The counsel quite interestingly concedes that, had the law not been prohibitory, the Kerala Book Society would have allowed women to work during the night. This critical concession suggests that the Factories Act is impinging upon the administrative autonomy of the society to make progressive choices, thus, rendering the relationship between the Society and the Statute to be one of Moral Paternalism. This is because the statute is superimposing a notion of gendered-division of labour, which is not necessarily consistent with the Kerala Book Society’s readiness to allow women to work at night, which could have been the case but for the impugned statute.
It is to be noted that the respondents merely argued for an absence of sex-based discrimination from their end, given that a statutorily ensconced provision constrains them to do so. The articulation of the ‘social circumstances’ argument to deny promotion to the petitioner is a result of the High Courts’ invention of an argument based on first principles, which is as follows,
Yet, the very nature of their commitment to the family and the social environment requires that they cannot be entrusted with all those duties which men may be asked to perform.
Critique
At this point, I wish to categorically critique the impugned judgment along the strands of reasoning employed by the Kerala High Court to adjudicate upon the question at hand.
Firstly, the clinching argument that the Court admits is that S.66(1)(b) of the Factories Act is a ‘special provision’ that protects women, thus inviting the protection of Article 15(3) owing to the ‘social circumstances’ argument. This renders S.66(1)(b) constitutional and non-discriminatory on the basis of sex.
The author fundamentally disagrees with this line of reasoning, not just because it is principally misogynistic but also because it is simply untenable in law insofar it falls foul of precedents. In refusing to recognise and challenge the material conditions that presuppose the culture of oppression and harassment of women, the court regards harassment as an implicit fact of life which is a disservice to the core philosophy of Article 15- which aims, among other things, towards gender parity.
Interestingly, the ‘social circumstances’ argument traces its provenance to the Constitutional Assembly Debates. While debating upon Article 15(3) [draft Article 9], Prof KT Shah says that historical discrimination in favour of a particular class of our society warrants to commensurate special treatment/facilities so that real equality of citizens is established.
However, he also adds a caveat to 15(3), by observing that;
‘The rage for equality finds exception with regards to special provisions, that in the long range of the country or of the race, exclude women from dangerous occupations and certain types of work. This doesn’t diminish the civic equality of their status as citizens but only intends to safeguard the long-range interests of the country.’
This understanding merits analysis.
Firstly, how do ‘long-run interests of the country’ justify precluding women from dangerous occupations? This escapes the author , since there is no direct nexus between denial of the right to work and the parens patriae power of the state in this context given that Article 15(3) cannot perpetuate what Article 15(1) seeks to remedy.
Secondly, the court avers that Article 15(3) was intended by the Constitution makers to ‘protect’ women from dangerous situations such as working at night, among others. It is respectfully submitted that the High Court conveniently overlooks the fact [in favour of the ‘long-range interests of the country’ proposition] that the Constitution makers intended Article 15(3) to achieve substantive and real equality, for which the special facilities merely acted as a conduit. It would indeed be a travesty of justice if the means defeat its ends.
Moreover, a purely textual interpretation of Article 15(3) which is agnostic to evolving social circumstances would amount to a sheer disregard for living constitutionalism, thus making it a static instrument.
It is argued that in an effort toward the aspirational actualisation of the progressive notions of gender parity, this ideology of ‘paternalistic protection and safeguarding’ of women from prospering in the socio-economic sphere is regressive in toto and embodies a pernicious precedent.
This section will also argue that Leela is per-incuriam and thus ought to be overruled by the Supreme Court of India.
At the outset, Leela is violative of precedents on two grounds. It is hereby argued that the decision in Leela is per-incuriam since it falls foul of Supreme Court precedents and sister High Court judgements- both procedurally and substantively.
A litany of precedents illustrates the incompatibility between S.66(1)(b) and Article 15(3). For ease of understanding, the precedents are divided into two categories, viz- horizontal and vertical.
In the former, one sees R. Vasantha (2001), which was a case involving a woman employee who was denied employment during the span of 7pm to 6am. This necessitated a writ petition in the High Court of Madras, analogous to Leela.
R. Vasantha deemed S.66(1)(b) to be unconstitutional because the court deemed it discriminatory on the sole ground of sex and thus violative of Article 15. Thus, potential employment can’t be denied on the sole ground of sex when no other factor arises.
Now, the grounds for distinguishing R.Vasantha by the Court in Leela are that the impugned section protects women and does not discriminate based on sex. This case comment argues that these grounds of distinguishing were erroneous.
Although a judgement of a sister high court isn’t binding, it is fairly clear with the benefit of hindsight that the Kerala High Court failed to give a speaking order on principles of law and instead based it upon a dogmatic predilection towards the ‘social circumstance’ argument. In the absence of any argument based on core principles of law from the High Court, it is inexplicable as to why Leela trumps R. Vasantha.
Moreover, in K.S. Triveni v Union of India it was affirmed that Section 66(1)(b) of the Factories Act, 1948, restricts employment of women in factories during night hours, on the basis of sex and is thus violative of Arts. 14 and 19(1)(g) of the Constitution. Leela distinguishes this case based on facts, which is emblematic of escapism.
Significantly, a landmark judgment viz, Hindustan Latex Ltd. v. Maniamma (1994) held that the protection of women ensconced in S.66(1)(b) is a function of entitlement which could be waived off at will.
It is baffling that the Kerala HC disregarded such a decision much before it decided on the questions of law before it.
Justice Sivaraman of the Kerala HC emphatically affirmed that;
Such protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible.”
Subjecting S.66(1)(b) to a waiver squarely rebuts the constraining nature of the impugned section and posits that being protected is a function of autonomous will and agency and not an arbitrary superimposition on women employees.
Now moving on to vertical precedents, the Supreme Court in a two-judge bench has previously made it explicit in C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (hereinafter Mudaliar) that ‘the State should create conditions and facilities conducive for women to realise the right to economic development including social and cultural rights.’ Leela errs substantively in that it disregards the precedential authority of a Supreme Court judgment like Mudaliar.
It is hereby argued that that the right to work of women employees could have been reconciled with the practical exigencies of manual factory work at night viz, safety and conducive conditions of work merely by implementing the holding in Mudaliar, instead of being regulated by a regressive judgment like that of Leela. To illustrate, Mudaliar puts the onus on the factory to create conditions which would ensure safety and conducive work conditions of women employees, like a company sponsored conveyance to their residence, increased security after 7pm and other such precautionary measures.
Additionally, in Anuj Garg v Hotel Association of India, the Supreme Court gave relief to an aggrieved woman petitioner who was denied employment in a bar, due to S.30 of the Punjab Excise Act, 1914. The court not only denied Article 15(3) protection to the impugned section but declared the latter, flatly unconstitutional. Leela violates the ratio in Anuj Garg insofar as the two-pronged test of State interference is concerned in that it should be (a) justified in principle and (b) proportionate in measure.
Anuj Garg also illustrates the triumph of the Right to Self-determination over the Right to Protection. Leela also disregards Anuj Gargs’ prescription to fix the environment of discrimination rather than to avoid it altogether via being paternalistic.
Interestingly, in Thota Sesharathamma and Anr vs Thota Manikyamma, the court affirmed that Article 15(3) is the forerunner in the interpretation of any legislation which must be done on the anvil of socio-economic equality for women. Leela does not interpret S.66(1)(b) accordingly.
The most instructive case law in this regard is Joseph Shine v Union of India, wherein Justice D.Y Chandrachud holds that Article 15(3) is an enabling provision, which aims to achieve substantive equality. Citing verbatim, the Hon’ble Judge holds the following;
Discrimination that is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3).
Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women.
After a fairly comprehensive literature review, it is affirmed that Leela v State of Kerala constitutes a minority in Article 15(3) jurisprudence. There’s only one other case of Ajit.G. vs Managing Director that cites Leela, and that too grudgingly, in that the same court says;
‘[…]Although I am of the personal opinion that in this era of women empowerment, it is not proper on the part of Government entities from excluding women from competing for employment involving work in night shifts[…] But Section 66 of the Factories Act comes in the way of the women candidates[…] I am, unfortunately, bound by Leela v State of Kerala.
This is classically emblematic of the binding power of a bad precedent, such as Leela.
Test Of Manifest Arbitrariness
At this juncture, it is concerning that Leela circumvented and dishonoured precedents- both horizontal and vertical. To prevent this from becoming a rife trend, it is argued that an overarching thumb rule informing manifest arbitrariness would do immense service in furthering substantive equality. We see in Joseph Shine that the Court holds Section 497 of the Indian Penal Code to be manifestly arbitrary after adjudging it, inter alia, on the anvil of Article 15(3).
Thus, the proposition is that any law enabling gendered separation of labour which does not attract the protection of Article 15(3), is manifestly arbitrary and is thus liable to be deemed unconstitutional. This way, the burden of disproving manifest arbitrariness rests on the respondents. Petitioners can shift their burden by either waiving their right to be protected under Article 15(3) or demonstrating that their dignity or economic interests are harmed by a ‘protective provision’ such as Section 66(1)(b). This marks the triumph of the right to self-determination over the right to be protected.