India is the world’s largest democracy, with 1.2 billion people, and is expected to be the world’s most populous country by 2050. Where India makes progress towards development goals, the lives of hundreds of millions of people can be improved. In recent decades, India has made substantial progress to improve child nutrition, immunisation rates and education enrolment rates, as well as to achieve broad economic growth.

Yet, gender disparities persist against a backdrop of rapid economic growth. Rates of violence against women are still high, women’s participation in government is low, and discriminatory dowry and inheritance practices continue.


When people are seen to be relevantly the same but are not treated the same, their treatment is considered unreasonable and arbitrary and is prohibited by law as unequal under the “likes alike” imperative. When they are seen to be different, they can be treated differently—unlike unalike; that is also considered equality.

This standard, termed formal equality, is traditionally regarded as fair, objective, and neutral as well as socially progressive. It is, in a sense, empirical: the law is to reflect reality.


The problem it seeks to solve is misclassification. People within a classification are to be the same as one another; people in different classifications are to be different from one another. Equality consists of treating people the same who are accurately classified as similar, differently who are accurately classified as different.

The subordinate status of women relative to men is not prominent among the Aristotelian model’s inequality problems. The questions are why and what to do about it.

Understanding that the most widespread social inequalities faced by women have been imagined as women’s differences from men. Hence not inequalities, helps explain why equality law has traditionally not been used to address violence against women, one of the most commonly occurring examples of unequal treatment based on sex.

Rape and battering, it seems, have implicitly been regarded as a feature of the sex difference. Looking across cultures, we do see women abused, exploited, and violated in a range of practices that have included rape, domestic violence, prostitution, and sexual harassment in their culturally specific forms, with equality law standing there on the sidelines. Most cultures see these practices as inevitable (if regrettable) or criminal (if spottily enforced) but not as unequal in the legal sense.

Practices seen to attach to differences do not give rise to claims for unequal treatment because the sexes are seen as different rather than unequally treated in those respects. Unlike are, in Aristotle’s terms, simply being treated unalike. So little to nothing is done about such practices, certainly not by equality law.


In mainstream equality theory, discrimination is treating someone who has the same rank, status, or qualities as if they were not the same as others of that group. But if someone is not already of that group, they are not relevantly the same as others in it and can be treated less well, and that is not seen as unreasonable or arbitrary. It is just treating them as who they are.

Given that socially imposed inferiority has real consequences or it would be harmless, how arbitrary is it, ultimately, to treat someone who has been deprived of educational advantages as less educated? This equality approach can thus map itself onto existing social hierarchies, ratifying rather than challenging them.

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 the 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. It requires courts to look at the reality of social hierarchy, not away from it and 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 jurisprudence has come this far for women, bearing such enormous promise that one major exception stands out. Out of step is the judicial reluctance to apply sex equality principles to 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 the result.


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. Contemplating the facial gender discrimination there, Justice Iyer wondered “whether [articles] 14 and 16 belong to myth or reality.” Yet when legislated in the family law context, facially sex-unequal provisions are repeatedly permitted to stand.

One wonders where the Court’s clarity on sex inequality has gone when reading its upholding in 1996 of the property partitions provisions of the Hindu Succession Act. Although women had fewer rights than men, the law was allowed to stand on a rationale that suggested it all came out roughly equal in the end. Githa Hariharan’s case, challenging a Hindu guardianship rule providing that “after” the lifetime of the father, the mother is the child’s guardian, gives rise to similar unease. “After” was interpreted to mean “in the absence of,” as if this solved the sex inequality.

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. Sex equality standards govern laws. Or, rather, whatever else they do or might do, it is laws that they govern. When they do not, because the laws are denominated “personal,” the term is revealed as code for exemption—an exemption deal men make with one another—here, that some men will allow other men to relate to women on their own terms in exchange for those other men’s allowing the others to have the same relation to their women on their own terms.


It is as if men agree to civil peace among one another on the condition of respecting each group’s cherished mores for inequality of the sexes—at the expense of each group of women. It is this commonality among men as supreme relative to women that reach across status and religion, not their differences on those grounds, that can be seen to determine whether the personal laws will be governed by constitutional sex equality standards.

In this light, it is men’s dominance in every religion’s concept of family that is at stake in what is presented as religious and cultural diversity; it is the terms of men’s power over women in the family that some men are allowing other men to set on religious grounds. If personal laws were subject to sex equality standards, the deal whereby men mutually tolerate one another’s dominance over women, each group of men in their own way, would be off for all of them.


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