The Exception to Equality: Divergent Paths of Women-Only Educational Institutions in India and the US
The existence of educational institutions established solely for women does not seem to be an anomaly to the value of equality in India. However, in the US, women-only educational institutions have been struck down as unconstitutional on the ground of discrimination. The difference lies in the constitution of both the countries. The following blog analyses the constitutional validity of women-only educational institutions from the lens of Article 15(3), which provides for the power of the State to make special provisions for women and children.
Case Study: Mississippi University for Women
The Mississippi University for Women v. Joe Hogan is a landmark case of equality jurisprudence in the United States.[1] The Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi (‘Mississippi University for Women’ or ‘the University’) was established in 1884 by the Legislature of Mississippi. Since its establishment 113 years ago, its admissions had been limited only to women. The School of Nursing established by the Mississippi University for Women in 1971, offered a 2-year associate degree, a 4-year baccalaureate programme in nursing, and a graduate programme. In the present case, Joe Hogan was a registered nurse in the State of Mississippi but was not a holder of the baccalaureate degree in nursing. On applying for the programme in 1970, he was denied admission because of his sex. He filed a case against the State on grounds of the violation of the Equal Protection Clause of the Constitution.
The Court of Appeals for the Fifth Circuit held that the State had a heavy burden of proving that such a discriminatory policy of admitting only women into the University was valid, and the State had not been able to fulfil the burden. The court laid down a two-fold test to ascertain the validity of such actions of the State. Firstly, the classification made by the State must serve important governmental objectives, which are not themselves based on archaic and stereotypical notions. Secondly, the means adopted by the State must be substantially and directly related to the objective sought to be achieved. The court observed that there was no evidence that women lacked opportunities of getting nursing training in the state, in fact, the field of nursing was predominated by women. Thus, the objective itself was invalid, therefore, the policy was unconstitutional.
Notions of Equality under the Indian Constitution
This case makes one wonder about the presence of women-only educational institutions in India. India has a history of educational institutions which limit their admission only to women, and continue to maintain their legacy till date. Isabella Thoburn College came to be the first Christian College for women in South Asia. It is now affiliated to Lucknow University, and offers five undergraduate courses in the fields of arts, commerce, and sciences.[2] Notably, the University of Delhi (DU) has a strong presence of 22 women’s colleges proving quality educational opportunities to girls from all over the country. Colleges like Miranda House, Lady Irwin College, Lady Shri Ram College, and others like Kamla Nehru, Gargi, and Maitreyi, remain to be some of the most sought-after institutions in India.[3]
In India, the guarantees regarding equality can be found under Articles 14, 15, and 16, forming the ‘equality code’ of the Indian constitution, wherein Article 14 lays down the broad doctrine of equality before the law and equal protection of laws, and Articles 15 and 16 apply the doctrine in light of historical and political realities.[4] Quite similar to the US, Article 14 also strikes at the arbitrariness of any governmental action. Any classifications between the individuals made by the State must be reasonable, i.e., the classification must be based on an intelligible differentia and the differentia must be rationally related or should have a rational nexus to the object sought to be achieved.[5] Further, Article 15(1) explicitly states that the State is prohibited from discriminating any citizen of India on the grounds of sex.
Considering these constitutional provisions, it is worth asking what enables the State from establishing, funding, and endorsing women-only educational institutions in India. The answer to this question is Article 15(3) which empowers the State to make special provisions in the interest of women and children. This provision is an enabling provision, and can be considered as an exception to the general rule of non-discrimination laid down under the first clause of the Article.
Historical Perspective on Women-Only Educational Institutions
The history behind the adoption of this Article by the Constituent Assembly is also notable. The text of Article 15(3) was introduced by BN Rau, the Constitutional Adviser to the Constitutional Assembly. He took inspiration from the US Supreme Court Justice Felix Frankfurter who was of the opinion that women may need special provisions by law. He also talked about the importance of separate schools and hospitals for women in his explanatory note regarding the provision.[6]
When the Constitution came into force, the conversation around the educational opportunities for women was renewed by the National Committee on Women’s Education headed by Durgabai Deshmukh (‘Durgabai Deshmukh Committee), appointed by the Ministry of Education, Government of India in 1958. After extensively analysing the state of women’s education in India, the Committee laid down certain recommendations to be followed by the government. The Committee recognised the nature of Indian society, wherein coeducation is not a preferred form of education. Therefore, it stressed on the importance of establishing separate schools for girls, in order to encourage enrolment. At the university stage, it was recommended to reserve grants for few selected institutions to develop themselves into institutions specially devoted to the education of women.[7]
The Education Commission 1964-66 headed by Daulat Singh Kothari, the then Chairman of University Grants Commission (‘Kothari Commission’) was an ad-hoc commission set up by the Government of India in 1964. The report endorsed the recommendations proposed by the Durgabai Deshmukh Committee regarding ‘special’ provisions for women, albeit on a temporary basis until the gap between the education of boys and girls is almost bridged. The possibility of opening separate schools for girls was discussed, although the focus remained on popularising mixed primary schools. When it comes to secondary stage, the report conceded to the public opinion which is not in favour of coeducational institutions. Hence, the establishment of separate secondary schools for girls was encouraged.[8]
Article 15(3) and The Way Forward
The Indian courts have sometimes interpreted the Article 15(3) through stereotypical notions such as women being the ‘softer sex’.[9] As a way forward, Unnati Ghia has taken note of various scholarly arguments of Kalpana Kannabiran, Tarunabh Khaitan, Catherine MacKinnon, Ratna Kapur, and Renee Leon, in order to argue that Article 15(3) should also be subject to a three-fold requirement consisting of identification of advantage being faced by women, the nexus between the measure adopted to correct it and the disadvantage itself, and its balance in relation to substantive equality considerations.[10]
Conclusion
While the above discussion lends legal backing to the establishment of women-only educational institutions in the form of Article 15(3) of the Indian constitution, it is also important to recognise the evolving discourse on affirmative action regarding women empowerment. The provision continues empower the government to take affirmative measures for women empowerment, however, it is prudent to move forward in a way that ensures that gendered stereotypes do not seep into the reasoning of the legislature or the courts while making any decisions based on Article 15(3).
[1] Mississippi University for Women vs Joe Hogan [1982] 458 U.S. 718.
[2] ‘History’ (Isabella Thoburn Degree College) https://itcollege.ac.in/itdc/history/ accessed 31 May 2024.
[3] ‘DU’s Women Colleges: Finding Their Own Freedom, Fighting for Independence’ (Hindustan Times 15 July 2019) <https://www.hindustantimes.com/delhi-news/du-s-women-colleges-finding-their-own-freedom-fighting-for-independence/story-yFwRkudgcd8YvypkVdXMtL.html> accessed 31 May 2024.
[4] State of Kerala v NM Thomas 1976 2 SCC 310.
[5] Ajay Hasia vs Khalid Mujib 1981 AIR 487.
[6] B. Shiva Rao (ed), The Framing of India’s Constitution: Select Documents, vol [II] (Indian Institute of Public Administration 1968) 173-174.
[7] National Committee on Women’s Education, Report (1958-59).
[8] Education Commission, Education and National Development (1964-66).
[9] See: Charan Singh v Union of India ILR 1979 Del 422; EMC Steel Ltd., Calcutta v Union of India 1991 SCC (2) 101.
[10] Unnati Ghia (2020) ‘Affirmative Action Under Article 15(3): Reassessing The Meaning of “Special Provisions” For Women’ NLSIR [2020] 32(2) <https://repository.nls.ac.in/nlsir/vol32/iss2/3?utm_source=repository.nls.ac.
in%2Fnlsir%2Fvol32%2Fiss2%2F3&utm_medium=PDF&utm_campaign=PDFCoverPages> accessed on 31 May 2024.