sexual discrimination

This blog post discusses the case note examining the first De-Facto case of sexual discrimination at the workplace. It is written by Dhruv Shekhar, from Jindal Global Law School, having studied History before at St. Stephens College.

Bench : J. Faizal Ali, J. Syed Murtaza & J. A. Vardarajan

Facts: The case imposed a challenge on Regulations 46 and 47 of the Air India Employees Service Regulations. With the challenge being posited on the grounds that the aforesaid regulation created a substantial degree of disparity between male (referred to as Air Flight Pursers) and female (Air Hostesses) (and within the Air Hostesses different operational standards dependent on whether one is working for Air India International on the International circuit or Indian Airlines on the domestic circuit) on multitude of grounds such as promotional avenues, differential retirement ages, conditions pertaining to termination of the Air hostesses services in cases of pregnancy or marriage (retirement age for them was 35 years  as opposed to 58 for their “male counterparts” – according to Regulation 46). Furthermore, a more prosaic question was regarding the discretionary powers of the Managing Director who under Regulation 47 could increase the age of retirement as per his own behest. An aspect which is contested by the petitioners as being arbitrary.

Procedural History: The said matter was brought under the dais of a writ petition before the Supreme Court. With previous iterations of the case having previously been presented before the National Industrial Tribunals ( one  being the Khosla Tribunal (1965) while the other being the Mahesh Tribunal( 1972) )

Rule:

Article 14 Of The CONSTITUTION OF INDIA

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15(1) Of The CONSTITUTION OF INDIA

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

Article 16 Of The CONSTITUTION OF INDIA

 Equality of opportunity in matters of public employment

Regulation 46  Air India Employees Service Regulations

Retiring Age:

Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the service of the Corporation upon attaining the age of 58 years, except in the following cases when he/she shall retire earlier:

(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier.

Regulation 47  Of Air India Employees Service Regulations

Extension of Service.

Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding two years, except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively.”

Issues:

(i) Whether Regulation 46 & 47 are violative of Articles 14,15, 16 of the Constitution of India and thus ultra vires in whole or part?

(ii) Whether discretionary powers as enumerated under Regulation 47 can be deemed as being excessive delegation?

Analysis:

The judgment begins on the note of the narrative by explaining the emergence of the two entities of Air India Corporation and Indian Airlines, while dovetailing the question with the Khosla and Mahesh Awards of 1965 and 1972 respectively.On the question of said regulations being violative of Article 14, the court asserts that article 14 only forbids against hostile discrimination and not against reasonable classification. To substantiate this aspect, this judgment relies on a litany of previous judgments which state that treating equal and unequal’s differently does not amount to hostile discrimination. Thus said regulations for the concerned matter are not violative in whole or part of Article 14. The judgments echoes this ideologue by stating that where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination under Article 14.The court thereafter seeks to a laid down an illustrative, albeit not exhaustive, set of guidelines to assess whether the Air Hostesses and  Air Flight Pursuers forged separate classes and by extension checking the supposed violation of Article 14. By assessing their promotional avenues, starting salaries and entry level qualification they are deemed as two distinct categories by the Court and thus the assertion of Article 14 being violated is rejected on the basis of reasonable and intelligible differentia.For the discrimination between Air hostess Air India and Indian Airlines, the Court states that that happens owing to Air India’s conformity with laws of the United Kingdom. Furthermore, the Court examines a secondary line of argument, which purports that these regulations are on an arbitrary and unreasonable basis (by making a classification on the basis of sex) and thus by extension are ultravires to Article 14. To examine said aspect the Court states that while Article 16(2) purports that no discrimination should be made only on the ground of sex, however it never prohibits the state from discriminating on the grounds of sex and other considerations (as asserted in the case of Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954]  SCR 930[1]). With this basis, the Court rejects the violation of Article 16. Curiously, though, the case law or the court’s judgment by enlarge never seeks to elaborate on what the additional criterion was.  The court on the aspect of termination of services on the instance of first pregnancy vehemently rejects the respondent’s assertion that women post childbirth seem to leave the job or alternatively their husbands do not allow for them to work and thus making it is essential to have a lower age of retirement for them. The Court surmises by stating that the organizations of the ilk of the Air India have to be prepared at any point whatsoever for absences which may arise due to the deaths/ infirmity amongst other reasons. As for the reasons put forward by the respondents, those are instances which can take place even in the absence of children, thus these assertions are prima facie baseless. The Court instead advocates for wholesale amendments to be made to said pregnancy clause whereby a criterion of retirement upon the birth of third child should instead be introduced in place of the incumbent clause. The reasoning behind it being based on a public health principle. Thereby deeming said regulation aspect is deemed as being arbitrary under Article 14. However, a similar stand of constitutional infirmity and arbitrariness is not applicable to the question of marriage within four years of service of the air hostess, as the court reflects Article 14 on grounds of utility, public health et.al.

Finally, on the question of whether the discretionary powers as consigned to the managing director are analogous to excessive delegation. The Court answers to this in the affirmative, whereby it is stated that by conferring unfettered and unguided control to the managing director to grant an extension, the real intention of the regulation makers is being defeated.  For the words “at the option of”, grants more than sufficient power to the managing director which could lead to possible cases of discriminatory practice. Other aspects such as the absence of a provision to appeal to the Managing Director’s decision of not granting an extension to the air hostess or the absence of mechanism requiring conveyance of reasons for refusal to grant extension only support the aforesaid statement. Thus with the ambit of powers so wide and expansive it appears to be clear that Regulation 47, is violative of Article 14 by suffering from excessive delegation.

Holding

The court held the clauses regarding retirement and pregnancy as unconstitutional and thus ordered for them to be struck down. Furthermore, Regulation 47 experienced a similar fate, for it was found that the said regulation suffered from excessive delegation of powers without any reasonable guidelines to police the same.

Critique

While the aforesaid judgment is an obvious improvement on the ruling of the Khosla Tribunal (1965)  which grounded its holding, in terms of the age criterion being fairly imposed owing to aspects such as the attractiveness of young air hostesses being an effective tool to deal with passengers. However, it still leaves open a plethora of questions on a  multitude of grounds which have been dealt with later sex discrimination based litigations such as  MacKinnon Mackenzie v. Audrey d’Costa (1987)[2]  to  Rajendra Grover v. Union Of India.(2007)[3] to limited successes.

Keeping the obvious overtures of a sexist judgment aside, which seem to be posed all over this judgment, there appear to be deep-seated problems on the question of conflict between administrative legislation and the constitution in this matter. For starters, when the Court seeks to debunk the violation of Article 14, the logic employed instead of examining a sex-based classification as being violative of Art.14,15,16.  Instead seeks to make a distinction between the sexes on the basis of showing the ancillary aspects such as qualification, salary and other features which appear to be different. Thus by creating a contorted understanding of reasonable classification, the applicability of constitutional remedies to an administrative regulation is vitiated.

Another vagary appears when the question of reasonable classification/ intelligible differential is applied to the distinction created on the basis of the sex when the question on violation Article 15 and 16 arises. The judgment surprisingly never seeks to substantiate the additional criterion which is used alongside the distinction made on sex, to rebuke the assertion of the violation of Article 16.  An aspect which was glaring omission in this judgment. This line of contorted reasoning is evident even when the judgment seeks reliance on American cases. Decisions such as Mary Ann Turner v. Department of Employment Security 423 U.S. 44[4]  &  Frontiero v. Richardson 411 U.S. 677[5], whose ruling were completely opposite to the matter at hand.

To conclude with my earlier mentioned point, the sexist nature of the judgment is brought into full focus on multiple occasions. On such instance being when the court rejects the one child basis for retirement for air hostess and instead advocates for an amendment which introduces the option of retirement upon the birth of the third child. While the court gave this reasoning a deified outlook by coloring it with a public health basis, however, in my opinion, it only seeks to make seeks to reassert a stereotypical notion regarding gender roles.                      

[1] Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954]  SCR 930

[2] MacKinnon Mackenzie v. Audrey d’Costa 1987 AIR 1281

[3]  Rajendra Grover v. Air India Ltd. & Anr.  SLP(C)Nos.20773-20778 of 2007

[4] Mary Ann Turner v. Department of Employment Security 423 U.S. 44

[5] Frontiero v. Richardson 411 U.S. 677

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