Madeeha Arshad
Introduction
The question of sex discrimination under Article 15(1) was never solemnly brought before the Supreme Court(“SC”) besides one occasion when the Court cursorily considered it, and went on to uphold the Constitutionality of adultery.[i] Thereby, the SC made the case of Air India v. Nergesh Meerza one of the first landmark cases in the Indian equality jurisprudence concerning sex discrimination. The judgement distinguished between sex and gender and held that the Constitution only aims to protect the former. This was done by construing the word “only” as it appears under Article 15(1) to mean “only and only on the ground of sex”. Through such an interpretation, the Court restricted the applicability of Article 15(1). In effect, the court placed intersectional discrimination beyond the ambit of Article 15(1) by understanding discrimination on the basis of sex in isolation from other forms of discrimination women face including their age, marital status and pregnancy.[ii] The same resulted in the ambit of right to equality and non-discrimination becoming unfairly and erroneously limited.
Today, more than ever, it has become pertinent to re-examine this judgement, in the context of the evolving equality jurisprudence in the country as well as the fourth wave of feminism. Such a re-examination shall assist in aiding the development of constitutional protections that embody indirect, gender-based and intersection discrimination.[iii]
Brief Facts of the Case
The case emanated from challenges to the constitutionality of Regulations 46 and 47 of the Air India Employee Service Regulations. The instant regulations were challenged on the grounds that they violated Articles 14, 15 and 16. The said regulations had resulted in a considerable amount of disparity between the salary and promotional avenues of male and female in-flight cabin crew members. The Regulations postulated that Air Hostesses had to :
- retire upon turning thirty-five years of age. This was extendable to the age of forty-five, at the discretion of the Managing Director.
- they had to retire if they got married within the first four years of service and/or
- on their first pregnancy. Corresponding conditions did not exist for Air Flight Pursuers. Only men could be appointed as Air Flight Pursuers while only women could be appointed as Air Hostesses.
Since the law prescribes equals to be treated equally, the Court inspected whether the aforementioned satisfied the grounds of equality.
Despite acknowledging the similarity in the job description of the two, it concluded that the two formed absolute distinct categories owing to the difference in their pay grades, promotional avenues and service conditions. This article, purposively, attempts to challenge the judgement and the rationale provided for arriving at such conclusions.
Age of Retirement Condition
Regulation 47 stipulated the age of retirement for Air Hostesses to be 35 years, extendable up to ten years at the sole discretion of the Managing Director. The regulation was based on the unfounded assumption that “young and attractive” women are more competent for the job of an Air Hostess, which entails dealing with various temperamental and difficult people.
This line of reasoning suffers from sex-based stereotyping and stems from the notion which perceives women as sexualized beings, thereby further subjugating them, by arbitrarily reinforcing these very stereotypes.[iv] It is an unfounded assumption due to the absence of any evidence proving that an Air Hostesses’ competence or ability to perform declines post the age of thirty-five or, for that matter, forty-five. The retirement age regulation is, therefore, in contravention of Article 15(1) which “prohibits discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them” and Article 16(2) which “prohibits discrimination in public employment on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them”. Thus, Air India, by virtue of being a public employer, would be contravening the law in making such a classification without the existence of any cogent reason.
Furthermore, the Court rightly concluded insofar as it is ultra vires since the Managing Director has been vested with excessive discretionary power without any metric regulating such power. This regulation was, therefore, in contravention of Article 14. This provision of the Constitution is general in nature and applies to cases where discrimination is notbased on “grounds” such as those listed under Articles 15(1) and 16(2) of the Constitution.
Marriage Condition
Air India’s Service Regulations also set forth that the Air Hostesses’ employment would be terminated if they married within four years of service. Their justification for the regulation in question was an economic one. They contended that they spend substantial resources in training their Air Hostesses, and their recovery on the costs of the same is directly connected to the duration of the service rendered by the Air Hostesses.
This rationale is unsound because Air India terminates the service of the Air Hostesses upon their marriage, if it takes place within four years of service, instead of simply retaining them to receive due returns on the cost of training. The Regulation is premised on the absurd idea that married women are unfit employees or that women are bound to quit their jobs post-marriage. Yet again, this reasoning is not backed by any evidence proving any co-relation between a woman’s marital status and their professional performance. To imply that married women are incapable of being efficient employees because their roles as wives are all-consuming is a notion antithetical to the equality of women in the workplace. Moreover, it inadvertently perpetuates the idea that women are either regulated by their employers or their husbands and do not have a mind of their own. The petitioners, in the instant case, had rightly referred to this Regulation as an “outrage on the dignity” of women.
Another aspect that compounds the problematic nature of this condition, is the fact that it is restrictive in nature. It snatches a woman’s autonomy in deciding when to marry by subjecting it to the terms of employment. The Court’s reinforcement of this autonomy depriving provision by upholding it as it improves the “health of the employee”, promotes “family planning programs” and allows women to become “fully mature so there is every chance of such a marriage proving a success, all things being equal”, is what makes the situation despondent.
However, the said provision is baseless and arbitrary in nature. The regulation constitutes sex discrimination under Articles 15(1) and 16(2). The Constitution in both spirit and letter bars the State from regulating marriage in the fashion prescribed by the Court in Nergesh Meerza. The State is not allowed to curb an individual, let alone a woman’s will to facilitate the “success” of marriage as an institution nor for family planning programmes. It is not only patronising but also patriarchal in nature, in the sense that it assumes the responsibility of guarding women’s health. This is yet another way of denying women autonomy over their bodies and a disguised attempt to regulate their sexuality.
Pregnancy Condition
The Service Regulations also stipulated that Air Hostesses retire from service upon their first pregnancy.[v] The Court held it to be unlawful for being unreasonable and arbitrary and therefore in contravention of Article 14. While the Regulation is indeed unconstitutional, it needs to be understood that it is so because it wrongfully discriminates based on sex – Articles 15(1) and 16(2) and not just because it is irrational.
This is a classic example of constitutional smoke and mirrors, i.e. indirect discrimination. It is asserted that a classification based on pregnancy is a classification based on sex. Not all women wish to get pregnant, but it is only women who can get pregnant. For discrimination to be based on a ground, the necessary requisite is not for ‘all’ members of that group to be affected; but rather that the members of the particular group are affected ‘because’of their membership in that group.[vi]
In the present instance, the pregnancy provision constitutes wrongful discrimination based on sex as it exclusively affects women. Furthermore, the discrimination is a direct one because it strikes at their biological and reproductive abilities. Needless to say, this provision is premised on the assumption that mothers are inefficient employees or that motherhood renders Air Hostesses undesirable. There is, yet again, no evidence or authority to support the hypothesis that childbirth negatively affects women’s ability to perform professionally.
While women’s temporary incapacity to work can be accepted to the extent of the duration of pregnancy and childbearing, it is for this very reason that pregnant women and new mothers are protected by the law through the Maternity Benefit Act, 1961, and the Maharashtra Maternity Rules, 1965. These statutes not only proscribe termination on the grounds of pregnancy but also stipulate relaxations such as maternity leave to provide women respite and time to look after themselves and their newborns. At the same time, they also provide them with the option to return to work after or even before the completion of the statutory period of leave, if they wish to.
The object of the aforementioned statutes is to offer women as much choice as possible and thereby enabling a truly autonomous life. More importantly, such provisions enable women’s economic participation in society which has historically been restricted due to gender binaries and roles due to which women were confined within their homes. The pregnancy provision in the terms of employment was yet another attempt at restricting their participation in society by imposing gendered roles on them. Consequently, a colossal gap is drawn between the status of women vis-à-vis men as employees.
In the instant case, Fazal Ali J., recognised that the pregnancy condition “amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature.” He added that dismissal from service due to pregnancy is “not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherished institution.” However, this opinion is ridden with grave issues.
While the provision is, without doubt, problematic, the reason for the same is that it weaponises a woman’s reproductive agency to discriminate against her and further perpetuates their subjugation and relegation to an inferior economic and social standing in society. The rationale cited by Fazal Ali J., blatantly propagates gender roles and stereotypes. Motherhood and pregnancy do not necessarily have to be interlinked. Either way, pregnancy most certainly is not an ordinary course of human nature, nor is it an immutable part of a marriage. Most importantly, Indian womanhood is not, in any manner, shape or form, defined by motherhood.
Analysis
Article 15(1) of the Constitution of India reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Courts of India, while emphasizing the word “only” have interpreted it to imply that only discrimination solely on a single ground is not permissible under Article 15.[vii] The Bombay High Court in the case of Dattatraya Motiram v. State of Bombay[viii] held that:
“If there is a discrimination in favour 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”.
It is, however, imperative to understand Article 15(1) in its true spirit. The provision does not place a bar on the number of grounds based on which a discrimination claim can be brought. This is due to the placement of the word in the text of the provision which reads “on grounds only of” rather than “only on grounds of”. It is argued that the use of “only” therein is to emphasise the inappropriateness of those grounds as the basis of discrimination.[ix] Moreover, the presence of the phrase “or any of them” makes it evident that a claim of discrimination under Article 15(1) is not restricted to a single ground and can also be brought under multiple/intersecting grounds.
Unfortunately, Nergesh Meerza did not depart from the trend of misinterpreting Article 15(1). In Nergesh Meerza, the SC held that Articles 15(1) and 16(2) prohibit discrimination solely on the ground of sex but the said provisions do not “prohibit the State from discriminating on the ground of sex coupled with other considerations”. Thereby it placed reliance on the different service conditions between Air Hostesses and Air Flight Pursuers and dismissed the Article 15(1) claim. However, the Court failed to question the basis on which these “other considerations” were disparately allotted.
It is argued that after having noted that the job description of the Air Hostesses and Air Flight Pursuers was similar in nature, the Court should have reassessed the Constitution of the separate cadres which relied on these “other considerations” and should have held them to be a product of discrimination based on sex. The petitioners rightly noted that the “other considerations” reasoning was a smoke screen to justify the distinctions made based on sex.
It is pertinent to recognise the nuance that Nergesh Meerza is not an example of a “sex plus” claim of discrimination but rather, one of sex discrimination where the Court failed to recognise that the “other considerations” were also stemming from sex-based discrimination.
In Navtej Singh Johar v. Union of India, the concurring opinion by Chandrachud J., dismisses the interpretation of “only” made by cases such as Nergesh Meerza for its “formalistic interpretation of Article 15” which would render the “constitutional guarantee against discrimination meaningless”. Reversing this jurisprudence, the SC held that if the “other considerations” being cited are stereotypical notions of sex or factors that have a dissimilar impact on certain sex, then these cases would squarely fit within the purview of discrimination based only on sex. Placing reliance on Anuj Garg v. Hotel Association of India, the SC observed that stereotypes with respect to socially assigned gender roles cannot be used to contend that the discrimination was not solely sex-based.
This ensured a long overdue evolution in the equality jurisprudence. Most notably in the case of Lt. Col. Nitisha v. Union of India where the SC, for the first time, categorically held indirect discrimination to be in contravention of the Constitution. Chandrachud J., opined that the Constitution was committed to the concept of substantive equality and ought to consider not just systemic but also indirect discrimination. Further, he endorsed the Fraser test that had been evolved by the Canadian Supreme Court. This two-pronged-test postulated that:
- the Courts should first examine if the impugned rule disproportionately disadvantages a particular group, and;
- whether the law is resulting in reinforcing, perpetuating or even exacerbating disadvantage.
In addition to this, the Canadian SC also observed that the Courts need to be more attentive to steer clear of propagating stereotypes and generalisations that were the cause of discrimination in the first place.[x] Most importantly, it noted that structural discrimination often warrants structural remedies.
Conclusion
The judgement in Nergesh Meerza not only set a pernicious precedent but also blatantly perpetuated gendered roles and stereotypes. Moreover, its restrictive and superficial interpretation of the Equality Code effectively led to the prohibition of indirect and intersectional discrimination from falling under the ambit of Constitutional protection.
Despite the momentous developments in the Indian equality jurisprudence since Nergesh Meerza,with the Courts addressing the issues of substantive equality and interpreting the Constitution in its spirit and intent, Nergesh Meerza remains to be explicitly overruled. Although Chandrachud J., made references to this judgement in Navtej Johar to highlight its shortcomings, his judgement was only a concurring opinion, with the majority not even mentioning the Nergesh Meerza case – thereby not overruling it. Therefore, in terms of judicial precedent, Nergesh Meerza remains relevant insofar as the question of equality and non-discrimination goes. The judgement is ridden with deep-rooted ideas of patriarchy and sets a dangerous precedent, and therefore, there is a pressing need to revisit the constitutionality of the holding.
[i] Yusuf Abdul Aziz v. The State of Bombay and Hosseinbhoy Laljee [1954] SCR 930.
[ii] 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.
[iii] Lt. Col. Nitisha v. Union of India 2021 SCC OnLine SC 261.
[iv] Gauri Pillai, Shreya Atrey, A Feminist Rewriting of Air India v. Nergesh Meerza AIR 1981 SC 1829: Proposal for a Test of Discrimination under Article 15(1) [2021] Indian Law Review.
[v] Regulation 46, Air India Employee Service Regulations.
[vi] Supra note 3.
[vii] Sri Mahadeb Jiew v. Dr. B.B. Sen AIR 1951 Cal 563.
[viii] Dattatraya Motiram More v. State of Bombay AIR 1953 Bom 311.
[ix] 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/.
[x] Fraser v. Canada 2020 SCC 28. ¶ 70.
Madeeha Arshad is a 4th year law student pursuing B.A., LL.B.(Hons.) from WB National University of Juridical Sciences (NUJS), Kolkata
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