Open Access Research Article
AIR INDIA V. NARGESH MEERZA - BY Shaileja Narain and Aeshita Marwah
Published Paper
Article Details
AIR
INDIA V. NARGESH MEERZA
Authored by -
Shaileja
Narain and Aeshita Marwah
Labour and
Services
(1981) 4 SCC
335
Bench :
Faizal Ali, Syed Murtaza & A. Vardarajan, JJ.
“The grammar of labor law in a
pluralist society tells us that the worker is concerned with wages and
conditions of service, the employer with output and economies, and the
community with peace, production, and stream of supply.”
-
V.K. Krishna Iyer, J. in Bangalore
Water Supply & Sewerage Board v. A. Rajappa, (1987) 2 SCC 213,
para 102
Introduction
The issue of
sex discrimination under Article 15(1) of the Indian Constitution has never
been brought substantially before the Supreme Court, except for one instance
where it was briefly considered and the Court ultimately upheld the
constitutionality of adultery ("Supreme Court")[1].
As a result, the Supreme Court recognized the case of Air India v. Nergesh
Meerza[2] as
one of the earliest significant occurrences of sex discrimination under Indian
equality legislation. The court made a distinction between sex and gender,
concluding that only the former is protected by the Constitution. This was
achieved by reading the word "only" as meaning "only
and only based on sex" in Article 15(1). The Court's perspective
constrained the application of Article 15(1).
By separating
sex discrimination from other forms of discrimination experienced by women,
such as age, marital status, and pregnancy[3],
the court effectively broadened the definition of intersectional discrimination
beyond the parameters of Article 15(1). The extent of the right to equality and
non-discrimination has thus been wrongly and arbitrarily constrained.
In light of
the nation's developing equality legislation as well as the fourth wave of
feminism, it is now more vital than ever to review this choice. The development
of constitutional protections against indirect, gender-based, and
intersectional discrimination will benefit from this re-examination[4].
Brief Facts Of The Case
Air India governed the Air Hostesses employed under them through
Regulations 46 and 47 of the Air India Employees Service Regulations. The said
Regulations were challenged on the grounds that they resulted in the violation
of the Articles 14, 15 and 16 of the Indian Constitution. It was alleged that
there was a grave disparity between the Air Hostesses of Air India and their
male counterparts, consisting of Assistant Flight Pursers, Flight Pursers and
In-Flight Pursers in terms of salary, promotions and the basis of retirement.
According to the Regulations, the following are the contingencies upon
which the Air Hostesses had to retire from their services:
- Attaining thirty-five
years of age, which could be extended to the age of forty-five, at the
discretion of the Managing Director.
- Marriage within the
first four years of service and/or
- First pregnancy.
These
conditions did not exist for the Assistant Flight Pursuers. While the male
employees could work up until the age of 58, the female attendants were to retire
at the age of 35. The petitioners argued that any discrimination between two
employees who belong to the same class and execute the same or similar tasks
was in clear violation of Article 14. The duties the Air Hostesses and Flight
Pursers performed were near identical and hence any discrimination between them
would be an infringement of Article 14[5].
To this, the respondents contended that insofar as the Air Hostesses are
concerned, they are recruited on the basis of sex and are thus entirely distinct
from the class of Pursers in that their service conditions, method of
recruitment, remuneration, and age of retirement were all very different.
Hence, the question of applicability of Article 14 would not arise in this
case.
When
it comes to the age bar on the Air Hostesses’ tenure of service, Air India
believed that young and attractive women are more competent for the job of an
Air Hostess, which entails dealing with various temperamental and difficult
people.
Furthermore,
upon claiming that the bar of marriage of Air Hostesses be removed, the
respondents argued that it is both a required and desirable provision since,
while being married they will fail to efficiently carry out the primary
function of their work.
Issues Raised
-
Whether Regulations 46 and 47 ultra vires in whole or
in part as they violate Articles 14, 15, and 16 of the Indian Constitution?
-
Whether discretionary powers as enumerated under
Regulation 47 can be deemed as being excessive delegation?
Analysis Of The Case
The decision
starts on a narrative note by describing how Air India Corporation and Indian
Airlines came to be while tying the issue with the 1965 and 1972 Khosla and
Mahesh Awards, respectively. The court holds that Article 14 simply outlaws
hostile discrimination and is not against reasonable categorization when it
comes to the question of whether the aforementioned rules violate it. This
ruling relies on a long list of other rulings that claim to treat equal and
unequal people differently does not constitute hostile discrimination to
support this claim. Therefore, neither the full nor any portion of the
aforementioned regulations for the relevant topic violate Article 14.
The judgments
support this ideologue by stating that when people of a certain class are
treated differently in the public interest to advance and boost members of
backward classes, such a classification would not constitute discrimination
under Article 14 due to their unique qualities, attributes, mode of
recruitment, and the like. The court next tries to establish an example, if not
exhaustive, set of rules to determine if the Air Hostesses and Air Flight
Pursuers forged separate classes and, thus, to determine whether the alleged
breach of Article 14 occurred.
The claim that
Article 14 was breached is dismissed based on reasonable and understandable
differentiation since the Court views their promotional opportunities,
beginning pay, and entry-level qualifications as two separate groups. According
to the Court, Air India's compliance with UK legislation is what causes
discrimination between it and Indian Airlines regarding air hostesses. The
Court also considers a further line of reasoning that contends these
restrictions are ultra-vires to Article 14 since they are based on an arbitrary
and unjustified premise (by classifying people based on their sex).
While Article
16(2) asserts that no discrimination shall be made only based on sex, the Court
notes that it never forbids the state from discriminating based on sex and
other factors (as asserted in the case of Yusuf Abdul Aziz v. The State of
Bombay and Husseinbhoy Laljee[6]).
Based on this, the Court denies that Article 16 was violated. Curiously,
however, neither the case law nor the court's decision, in general, tries to
explain what the new requirement was. The respondent's argument that women
post-childbirth seem to leave the job or that their husbands do not allow them
to work and thus making it essential to have a lower age of retirement for them
is categorically rejected by the court on the issue of termination of services
in the instance of first pregnancy. The Court assumes by declaring that
companies like Air India must always be ready for absences that may occur owing
to, among other things, fatalities or illness. Regarding the arguments made by
the respondents, those are situations that can occur even when there are no
children present, thus these claims are at first glance unfounded.
The Court
instead urges that the pregnancy provision be completely changed, with the
current language being replaced by a need for retirement at the birth of a
third child. Its justification is based on a public health premise. As a
result, Article 14 declares that the stated regulation feature is arbitrary.
The court reflects Article 14 based on usefulness, public health, and other
factors, so the issue of the air hostess' marriage within four years of
employment is not subject to the same claim of constitutional infirmity and
arbitrariness.
Finally, let's
talk about whether the managing director's discretionary powers are comparable
to over-delegating. The Court responds in the affirmative, stating that the
true aim of the rule writers is being undermined by giving the managing
director unrestricted and unguided discretion to grant an extension. The phrase
"at the discretion of" gives the managing director more power than is
necessary, which might result in instances of discriminatory conduct. Other
factors, such as the lack of a clause allowing the air hostess to challenge the
Managing Director's decision to deny an extension or the absence of a system
mandating the communication of reasons for the denial, only serve to
corroborate the aforementioned assertion. Due to the vast and extended scope of
the authorities, it is therefore apparent that Regulation 47 violates Article
14 by being overly delegated.
Age
Of Retirement Criterion
According to Regulation 46, an
employee of Air India must retire from services when he or she becomes 58 years
old, with the exception of the following circumstances where an early retirement
is required:
An Air Hostess, upon attaining 35
years of age, or on marriage, given, it takes place within the first four years
of her service or on her first pregnancy, whichever event occurs earlier. This
Regulation was based on the erroneous presumption that "young and
attractive" women are better suited for the demanding work of an air
hostess, as it might involve interacting with a variety of people, some of who
might be callous and hot tempered. This kind of mindset warrants sex-based
stereotyping and is founded on the idea that women are inherently sexualized
creatures, further oppressing them by unjustly promoting these preconceptions.
Due to the lack of evidence
demonstrating that an Air Hostess' competence or performance starts to decline
after the mere age of thirty-five or, for that matter, forty-five, it is an
illogical premise. As a result, this retirement age regulation violates
Articles 15(1), which prohibits discrimination against any citizen based solely
on race, caste, sex, place of birth, or any other factor. The very same goes
with Article 16(2), which forbids discrimination in public employment based
solely on race, caste, sex, descent, place of birth, residence, or other
factors. As a result of this, Air India would be breaking the law by
classifying employees in such a manner without any valid justification as it is
a public employer.
Marriage Criterion
The Air Hostesses' job with Air
India would be terminated if they were to marry during their first four years
of work, according to the company's service regulations. They used economic
arguments to support the relevant rule. They argued that they invest a lot of
money in educating their Air Hostesses, and that the tenure of their service
directly affects how much money they are able to recoup from those
expenditures.
This justification is also flawed
since Air India ends the employment of Air Hostesses upon marriage, if it
occurs within four years of employment, rather than just keeping them on to
recover the cost of training. The Regulation is based on the ridiculous notion
that married women are unfit workers or that women are obligated to resign from
their occupations after getting married. Once more, there is no evidence to
support this argument that a woman's marital status and her professional
success are related in any way.
The idea that married women can't
work effectively because their responsibilities as wives take up all of their
time is incompatible with the equality of women in the workplace. In addition
to this, it also unintentionally supports the notion that women lack a free
will and are instead controlled by their spouses or bosses. In the current
instance, the petitioners correctly described this Regulation as an
"outrage on the dignity" of women.
Pregnancy
Criterion
Additionally, in
accordance to the Service Regulations, Air Hostesses were also required to
leave their jobs in the event of their first pregnancy. The Court determined
that it was unconstitutional since it was arbitrary and irrational, and that it
consequently violated Article 14. While it is true that the Regulation is
unconstitutional, it must be noted that this is not simply because it is
unreasonable but also because Articles 15(1) and 16(2) of the Regulation
unfairly discriminate based on sex.
The pregnancy
clause only applies to women, making it unlawful sex-based discrimination. This
clause is clearly based on the idea that women bearing a child are unreliable
workers or that being a mother makes an Air Hostess unattractive. Again, there
is no proof or authority to back up the claim that giving birth has a
detrimental impact on a woman's capacity to perform professionally.
The Maternity
Benefit Act of 1961 and the Maharashtra Maternity Rules of 1965 provide
protection for expectant mothers and new mothers under the law, notwithstanding
the fact that women's temporary inability to work can be tolerated for as long
as childbearing and pregnancy last. In addition to outlawing termination on the
basis of pregnancy, these regulations often provide relaxations like maternity
leave that give women a break and time to care for themselves and their unborn
children. They also provide individuals the choice, if they so choose, to
return to work sooner or even after the statutory term of leave has ended.
Laws Concerned And Contentions
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 Of 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.”
Ratio Decendi
After citing
several decisions, Justice Fazal Ali expressed his perspective on the subject
of discrimination under Article 14 of the Indian Constitution. In his opinion,
a distinction between "discrimination with reason" and
"discrimination without reason" must be made. The issue of uneven
treatment doesn't come up in this case since the circumstances controlling one
group of people or things could not always be the same for another set of
people or things. Joginder Singh, Sham Sunder v. UOI[7], Western
U.P. Electric Power and Supply Co. Ltd. V. State of U.P[8].,
and numerous other cases, Justice Ali concluded that when employment
conditions, promotion procedures, working methods, and service terms are
different, there are differences in the terms of employment i.e., the AFPs and
AHs belong to distinct classes, therefore, under article 14 of the Indian
Constitution, there is no discrimination between AFPs and AHs and therefore,
there can be no discussion of discrimination or uneven treatment since unequal
classes can be treated unequally. Additionally, while the terms of service
concerning retirement and other matters varied, these do not violate Article 16
of the Indian Constitution. The laws appear to be biased in more ways than just
sex; they also take other factors into account. Since the law does not violate
Article 15 of the Indian Constitution, Yusuf Abdul Aziz v. State of
Bombay and Husseinbhoy Laljee[9]
are cited as supporting authorities.
Justice Ali
stated that the retirement age cannot be fixed by a clear-cut formula and must
be determined from person to person based on a medical test as well as a
variety of other factors and circumstances. This also applies to the Managing
Director's authority to extend an employee's retirement. A law that grants
authorities an excessive amount of discretionary power is irrational and
violates Article 19(1)(g) of the Constitution, according to Lala Hari Chand
Sarda v. Mizo District Council. Justice Ali invalidated the aforementioned rule
47 because it provided the Managing Director unrestricted, unguided authority.
Judgment
“It
seems to us that the termination of the services of an AH under such
circumstances is not only a callous and cruel act but an open insult to Indian
womanhood the most sacrosanct and cherished institution.”
The
retirement and pregnancy clauses were declared to be unconstitutional by the
Supreme court after hearing arguments from both parties, and as a result, it
ordered that they be repealed with immediate effect. Regulation 47 of the Air
India Employees Service Regulations also met with a similar demise since it was
discovered that there were too many powers delegated to it without any
reasonable limits to monitor them. The Court declared Regulation 46 I (c) to be
invalid and held that the clause "or on first pregnancy, whichever comes
earlier" is invalid and in violation of Article 14 of the Constitution. As
a result, it will be removed. Moreover, the supreme court advised that the said
pregnancy provision be changed to replace the present clause with one that
requires retirement following the birth of a third child. This recommendation
was based on the idea of public health. In addition to this, the honourable
judges also claimed that they were unable to understand how a young, gorgeous
Air Hostess might be able to handle awkward or tough situations better than
others because intelligence or attractiveness cannot be the main indicator of
ability.
However,
the Court did not find any irrationality or arbitrariness in the Regulations'
requirements, which demand that AHs not get married within four years of their
employment or risk having their services terminated.
Critical reviews
While the
aforementioned judgment is undoubtedly an improvement over the Khosla
Tribunal's decision (1965), which served as the foundation for its holding, in
terms of the age criterion being fairly imposed due to factors like how
attractive young air hostesses are as a tool for dealing with passengers.
However, it still raises several issues on several grounds that have only
partially been resolved in subsequent sex discrimination-based lawsuits, such
as MacKinnon Mackenzie v. Audrey d'Costa[10]
and Rajendra Grover v. Air India Ltd.[11].
There appear
to be serious issues with the subject of whether administrative law and the constitution
clash, in this case, leaving aside the blatant sexist overtures that seem to be
made throughout this opinion. To begin with, the argument used by the Court to
refute the infringement of Article 14 is different from looking at a sex-based
categorization as a violation of Articles 14, 15, and 16. It aims to
distinguish between the sexes by highlighting auxiliary factors like
qualification, pay, and other characteristics that seem to be different. The
application of constitutional remedies to an administrative regulation is thus
compromised by the distorted notion of reasonable categorization that is
produced.
Another breach
of Articles 15 and 16 occurs when the distinction made based on sex is subject
to the test of reasonable categorization or understandable differentiation.
Surprisingly, the ruling never attempts to support the extra standard that is
employed in addition to the sex differentiation to refute the claim of an
Article 16 breach. An obvious omission in this ruling about that element. Even
when the ruling requests reliance on American cases, this line of twisted
reasoning is still clear. decisions that were utterly at odds with the
situation at hand, such as Frontiero v. Richardson[12]
and Mary Ann Turner v. Department of Employment Security[13]
.
To tie
together our prior remarks, we will say that several situations bring the
judgment's sexist aspect into sharp relief. In one such case, the court rejects
the one-child basis for air hostess retirement and instead pushes for a change
that adds the possibility of retiring after the birth of the third child.
Although the court gave this justification a glorification by giving it a
public health foundation, in our opinion, it just aims to re-establish a
conventional concept about gender roles.\
Critical analysis
According to
Article 15(1) of the Indian Constitution, "The State shall not
discriminate against any person solely on grounds of religion, race, caste,
sex, or place of birth." While emphasizing the term "only,"
Indian courts have understood it to mean that only discrimination based on a
single reason is prohibited by Article 15. In Dattatraya Motiram v. the
State of Bombay[14],
the Bombay High Court ruled that:
“If there is discrimination in
favor of a particular sex, that discrimination would be permissible provided it
is not only on the ground of sex, or, in other words, the classification on the
ground of sex is permissible provided that classification is the result of
other considerations”
But it's
crucial to grasp the full meaning of Article 15(1). The number of bases on
which a discrimination claim may be made is not limited by the rule. This is
because the term "on grounds only of" rather than "only on
grounds of" is included in the provision's text instead of "only on
grounds of." It is asserted that the word "only" was used to
highlight the inadequacy of such grounds for discrimination[15].
Furthermore, it is clear from the words "or any of them" that a claim
of discrimination under Article 15(1) is not limited to one cause but may also
be made under multiple/intersecting grounds.
Unfortunately,
this continued the habit of interpreting Article 15 incorrectly (1). The
Supreme Court ruled that Articles 15(1) and 16(2) do not "ban the State
from discriminating on the premise of sex paired with other reasons," but
they do prohibit discrimination purely based on sex. By doing so, it relied on
the disparity in the terms of service between Air Hostesses and Air Flight
Pursuers and rejected the Article 15(1) allegation. The Court did not, however,
raise a concern about the methodology used to allocate these "other
considerations" inequitably.
It is argued
that the Court should have evaluated the Constitution of the separate cadres
that relied on these "other considerations" and should have held them
to be a result of discrimination based on sex after noting that the job
descriptions of the Air Hostesses and Air Flight Pursuers were similar. The
petitioners correctly pointed out that the "other reasons"
justification was a smokescreen used to support the sex-based inequalities.
This case is not an example of a "sex plus" allegation of
discrimination; rather, it is one of sex discrimination where the Court failed
to acknowledge that the "other reasons" were also a result of
sex-based discrimination. This subtlety must be understood.
The
internalised misogyny in the Indian society
Regulations 46, 47 and Air
India’s arguments to defend the same are a clear reflection of the Indian
society’s quintessential mindset that a woman’s one duty is to take care of
their homes, husbands and children. It caters to the already misogynistic
ideals that are so prevalent in the world. Hence it is the government and the
courts’ responsibility to do away with this instilled paradigm and shift
towards a more liberal and modern era where we do not promote discrimination or
disparity of any kind with respect to gender and sex.
More
so, these conditions can be deemed extremely restrictive in nature. It robs a
woman of her freedom to choose her own marriage date by tying it to her
professional obligations. Despondently, the Court has reinforced this
autonomy-robbing provision by upholding it on the grounds that it enhances
"employee health," advances "family planning programmes,"
and enables women to "fully mature so that there is every chance of such a
marriage proving a success, all things being equal."
The aforementioned clauses are
arbitrary and without foundation. According to Articles 15(1) and 16(2), the
regulation is discriminatory based on gender. In both text and spirit, the
Constitution prohibits the State from regulating marriage in the manner outlined
by the Court in this case. A woman's will cannot be curtailed by the State in
order to promote the "success" of marriage as an institution or for
family planning programmes. In that it claims responsibility for protecting
women's health, it is both patronising and patriarchal in character. This is
just another tactic used to deny women control over their bodies and a covert
effort to regulate their sexuality.
The
object of the statutes such as Maternity Benefit Act, 1961, and the Maharashtra
Maternity Rules, 1965 is to provide women with as many options as possible,
enabling them to live completely independent lives. More crucially, these laws
permit women's economic engagement in society, which has traditionally been
constrained by gender roles and binary distinctions that kept women confined to
the house. By enforcing gendered roles on them, the pregnancy condition in the
employment terms was another attempt to limit their involvement in society. As
a result, a huge disparity between the standing of women and men as employees
is drawn.
While
the pregnancy condition is indeed an extremely problematic, the real reason
behind it is that it uses a woman's reproductive power against her,
perpetuating her enslavement and relegation to a lower class of society's
economic and social status. Justice Fazal Ali’s justification overtly
reinforces gender norms and prejudices. Pregnancy and motherhood don't have to
be related in some way. In either case, being pregnant is most definitely not a
normal component of human nature or an unchangeable aspect of marriage. Most
significantly, becoming a mother in no way, shape, or form defines an Indian
woman.
[2]
Air India v. Nergesh Meerza, (1981) 4 SCC 335.
[3] Kimberlé W Crenshaw, “Demarginalizing the Intersection
of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine,
Feminist Theory and Antiracist Politics” (1989) 4 University of Chicago Legal
Forum 139.
[5] 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.
[6]
Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954] SCR
930[1].
[11]
Rajendra Grover v.Air India Ltd., 2007 SCC OnLine Del 1389.
[12]
Frontiero v. Richardson, 423 U.S. 44.
[13]
Mary Ann Turner v. Department of Employment Security, 411 U.S. 677.
[14]
Dattatraya Motiram More v. State of Bombay AIR 1953 Bom 311.
[15] Shreya Atrey, Article 15 Through the Lens of
Intersectionality – II, June 14, 2015, available at https://indconlawphil.wordpress.com/2015/06/14/guest-post-article-15-through-the-lens-of-intersectionality-ii/.
Article Information
AIR INDIA V. NARGESH MEERZA - BY Shaileja Narain and Aeshita Marwah
Authors: Shaileja Narain, Aeshita Marwah
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/31
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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