The Delhi High Court recently observed, while providing succour to the ailing wife of a former Indian Railways employee, that even a facially neutral decision can have a disproportionate impact on a Constitutionally protected class..In 2015, the General Manager of the Northern Railways issued an order denying the wife and the daughter of former employee Om Prakash Gorwara medical cards and privilege passes, and consequently the use of the free medical facilities..The Indian Railways Medical Manual and the Railway Servant Pass Rules allow for the issue of a REHLS card and establishes the ‘wife’ and ‘unmarried daughter’ as ‘family’ for the purposes of extending medical card and privilege pass facilities to them..A writ petition was filed against this order, by the wife and her daughter, before a single judge bench of the High Court, which rejected the plea. That bench had held that the issue involved a personal dispute and in the absence of nomination of the wife and daughter as family members by Gorwara, they could not claim the medical and pass benefits..Thereafter, Gorwara’s wife and daughter filed an appeal arguing that he had initially declared them as eligible to secure medical facilities and nominated them as such, but subsequently removed their names..It is important to mention that the petitions were preceded by a series of litigation between Gorwara and his wife under Section 125 of the Code of Criminal Procedure, as well as other cases alleging commission of offences under Sections 498A and 406 of the Indian Penal Code..The appellants urged that there was no separation of marital ties between Gorwara and his wife, and thus, he could not disown the appellants. It was contended that the order by the Indian Railways was arbitrary, discriminatory, and hence unconstitutional..The primary contention of the Northern Railways was that the facilities of the medical card and privilege passes are for the use of the railway officers/servants, and have been extended to the family of the railway officer/servant only on their declaration..It was further argued that since there is no provision for separate medical cards and passes to be provided to the mother and daughter, and in the absence of a declaration by Gorwara, no medical card could be issued to the appellants..Gorwara on his part alleged that he is living separately from the appellants and has no semblance of a family life with them. He further stated that he had completely disowned the appellants and does not wish for them to secure the free medical services based on his medical card..The Division Bench of Justices S Ravindra Bhat and Sanjeev Sachdeva observed that,.“This court is of the opinion that the structure of Para 603 (policy) is such that the status of spouse, is recognized as long as the relationship of matrimony subsists. In the case of an unmarried and dependent daughter, there is no question of changing the status; by its very nature it is unalterable. .Thus, the mere circumstance that one or the other party to a matrimonial bond, is disgruntled or involved in litigation against the other, would not alter the factum of relationship, which is per se a matter of status.”.It was stated that the Constitution establishes a welfare state whose duties include providing medical care for its citizens. This right is firmly protected within the right to live with dignity under Article 21. Thus, by denying the medical facilities to the wife, the Railways in effect, violated the mandate enshrined in Article 21..The Court also made strong observations regarding the historical discrimination against women..“This Court must also keep in mind that the Appellants, under the Constitution, fall within a particular group, i.e. that of ‘women’. The Constitution in Articles 15 and 16 recognises the principle that certain groups have been historically disadvantaged and that post the enactment of the Constitution, actions of the State that discriminate against women (not falling within the exceptions of Article 15(4) and Article 16(4) are constitutionally untenable. Thus, while affirmative action to secure the interests of women is allowed, the Constitution, irreproachably, does not permit discrimination against women.”.It was further observed that it is not sufficient to say that the reasoning of Northern Railways did not intentionally discriminate against the appellants because they were women..“Law does not operate in a vacuum and the reasoning and consequent decision of Northern Railways must be examined in the social context that it operates and the effects that it creates in the real world. .Even a facially neutral decision can have disproportionate impact on a constitutionally protected class.” .The Bench also stated that the reason the drafters of the Constitution included Article 15 and 16 was because women have been subjected to historic discrimination..“The Northern Railways’ decision to not grant the Appellants medical cards clearly has such a disproportionate effect. By leaving an essential benefit such as medical services subject to a declaration by the railway officer/ servant, the dependents are subject to the whims and fancies of such employee.”.The Bench held that it is irrelevant that the Railways did not deny them the medical card because the appellants were women, or that it is potentially possible that a male dependent may also be denied benefits under decision made by the Railways..It was further held that the ultimate effect of its decision has a disparate impact on women by perpetuating the historic denial of agency that women have faced in India, and deny them benefits as dependents..Finally, the Court quashed the order passed by the Northern Railways in 2015 holding that it is arbitrary, discriminatory and made without application of mind. It further directed the Northern Railways to include both the appellants’ names on the medical card of Gorwara, and to issue a separate medical card and privilege pass to the appellants..Read Judgment:
