The Supreme Court’s Make-Up Artists Decision and its Discontents

A couple of weeks ago, in a judgment that made headlines, the Supreme Court struck down a clause of the Cine Costume Make-Up Artists and Hair Dressers Association bye-laws that prohibited women (and anyone who had not spent five years in the State of Maharashtra) from becoming members. The clause effectively operated as a ban on women being employed as make-up artists in the 2 billion-dollar film industry, and there is no doubt that it was a highly regressive, patriarchal and discriminatory provision. Nonetheless, for many reasons, the judgment of the Court is deeply problematic, and requires close scrutiny.

Before the Court, it was argued that the impugned clause violated Articles 14, 19(1)(g) and 21 of the Constitution. Ordinarily, this would be a constitutionally impeccable argument. There was, however, one problem: the Association is a private entity, and private parties are not ordinarily subject to Part III of the Constitution. The petitioner’s claim was, in effect, a claim for the horizontal enforcement of rights.

It is clear that under the present constitutional regime, the Court could not have brought the Association under the ambit of Part III by holding it to be “State” under Article 12. Under the Pradeep Kumar Biswas test, a private entity must be under the “functional, financial and administrative control” of the State for Article 12 to apply, and those stringent conditions were not fulfilled in this case. An alternative approach, which holds that private bodies performing public functions (in this case, employment) are subject to public law obligations, remains embryonic in Indian Constitutional Law. While impliedly endorsed by Justice Mohan in his concurring opinion in Unnikrishnan, it has never been explored in detail by the Court. The Court chose not to explore it here either, holding categorically that Article 12 was not attracted, and leaving it at that (paragraph 38).

Instead, the Court reasoned as follows: it noted that the Association was a registered trade union under the Trade Unions Act of 1926. Under the Act, registered trade unions could not frame rules that were inconsistent with the Act. In particular, the Court observed that Section 21 of the Act, which stipulated the rules for membership of the Trade Union, stated that “any person who has attained the age of fifteen years may be a member of a registered Trade Union…” (rather irrelevantly, the Court also referred to Section 21A, which provided for the disqualification of office-bearers of the Trade Union).

The Court then noted: “The aforesaid provisions make it graphically clear that Section 21A only prescribes the age and certain other qualifications. The aforesaid statutory provisions do not make a distinction between a man and woman, and rightly so.”

Presumably, this is a typographical error, and the Court was referring to Section 21, not 21A (because there was no dispute at all about the disqualifications of office-bearers).

On the other hand, Clause 4 of the Association’s by-laws stated:

Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association…”

Clause 6 stipulated the five-year Maharashtra domicile requirement.

The Court then held: “Clause 4, as is demonstrable, violates Section 21 of the Act, for the Act has not made any distinction between men and women.”

In other words, because under Section 21, age was the only qualification for membership of a trade union, the Association’s by-laws, by prescribing the additional requirements (on the basis of gender and domicile) violated the statute, and were therefore liable to be struck down.

There is, however, one significant flaw in the Court’s reasoning, and that is the wording of Section 21. In relevant part, that Section reads:

“Any person who has attained the age of fifteen years may be a member of a registered Trade Union subject to any rules of the Trade Union to the contrary…”

On a simple grammatical reading, it is abundantly clear that the Trade Union can make any set of rules over and above, or opposed to the fifteen-year age requirement. The Court completely ignores the latter part of the sentence. Even worse, it reads it out altogether: it is as if those eleven words never existed.

Apart from being a case of bad statutory interpretation, the conclusion is utterly ludicrous, because on the Court’s reading of the statute, any person above the age of fifteen has a statutory right to become a member of any trade union registered under the Trade Unions Act. On the court’s reading of the statute, a factory-owner would have the right to become a member of his factory’s trade union. This would be a… strange outcome.

The Court then notes:

“It is clear to us that the clause, apart from violating the statutory command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex. Such discrimination in the access of employment and to be considered for the employment unless some justifiable riders are attached to it, cannot withstand scrutiny. When the access or entry is denied, Article 21 which deals with livelihood is offended.”

 While the constitutional mandate does indeed postulate that there cannot be any discrimination on the ground of sex, the Court forgets that the constitutional mandate is addressed to the State, as is Article 21’s guarantee of the right to livelihood (as part of the right to life). The exception, of course, is Article 15(2), which proscribes horizontal discrimination in certain specific areas. Previously on this blog, it has been argued that, in light of constitutional history, Article 15(2) ought to be given an expanded interpretation, but the Court does not engage in that analysis here. It blithely assumes that the non-discrimination and Article 21 guarantees are applicable to private associations, and closes by holding:

“A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.”

 Reading the Court’s opinion in its best light, it would seem that the proposition of law which emerges is that a private association registered under a statute cannot violate constitutional norms in its membership requirements. The logic would be that statutory registration amounts to State sanction, and the State cannot sanction or endorse an activity that runs directly contrary to the provisions of the Constitution (something akin to the American case of Shelley vs Kraemer, where the Court refused to enforce a racially-restrictive covenant, on the ground that that would amount to enforcing an unconstitutionality, while holding that it had no power to strike down the private covenant). This might be understood as a case of indirect horizontality, forms of which are prevalent in jurisdictions such as South Africa and Germany. If it is a case of indirect horizontality, though, that argument needs to be spelt out and provided a proper analytical foundation, which the Court fails to do.

The argument from indirect horizontality, however, runs into a significant problem: the precedent of the Zoroastrian Cooperative Case, in which a housing society registered under the Cooperative Societies Act was permitted to discriminate on the basis of religion, on the grounds of the freedom of association. Previously on this blog, we have argued that Zoroastrian Cooperative is better understood not as an Article 19(1)(c) freedom of association case, but as an Article 29 minority-rights case, but here the Court makes no effort to distinguish what appears to be directly contrary precedent, and does not even acknowledge the tensions between Article 19(1)(c)’s guarantee of the freedom of association, and enforcing membership requirements on private associations.

In fact, the justification that we have provided above leads to some strange conclusions. Suppose I want to start a society for the Protection of the Rights of Besieged Men, and have it registered under the Societies Registration Act (or analogous legislation). Membership is limited to men. Is that a violation of the sex-discrimination clause of the Constitution? Or suppose I want to start a society for the Protection and Promotion of the Jedi Faith, under the by-laws of which, members must forswear prior allegiance to all organised religions, and embrace the Jedi faith. Will that also be a violation of the Constitution’s religious non-discrimination clause? The tensions between the freedom of association and non-discrimination are acute, and require a scalpel rather than a sledgehammer. Many jurisdictions have civil rights legislation that try to draw a balance by prohibition discrimination, for instance, within the workplace, but not in private associations like the ones described above.

In the absence of an overarching civil rights act in India, admittedly, the judiciary is tasked with the responsibility of interpreting laws and constitutional provisions to avoid egregious discrimination with very real consequences, such as the impugned clause in the Make-Up artists case. But in doing so, it ought not to lose sight of grounding its decisions in defensible legal reasoning. In the Make-Up artists case, the Court spends reams of pages quoting international declarations, feminist literature, and previous cases declaiming gender equality in ringing phrases, but – as we have seen – spends no time in working through the tangled legal issues that actually arose for its consideration. As a result, we have a wonderful outcome, but no reasoning. That makes for good headlines, but bad law.

One Small Step Towards Abolition?

On 31st October, the High Court of Delhi – writing through Justice Muralidhar – decided a death penalty reference that can have (potentially) significant consequences for the future of capital punishment. The appellant had been convicted for the rape and murder of a three-year old child, and been sentenced to death by the trial court. On 17th April, 2014, the High Court affirmed the conviction. With respect to the award of the death penalty, the Court rejected the notorious “balancing test” of Machi Singh (which was contrary to precedent and has been questioned by the Supreme Court subsequently), and held that one important aspect to consider was the possibility of reform and rehabilitation for the criminal.

So far so good. Until now, however, this assessment – of whether or not the convict could be reformed/rehabilitated – was being taken by judges. Reading death penalty cases, it becomes evident that this assessment would rarely be based on objective factors. In most circumstances, it would be a snap judgment, depending upon the judge’s intuitions about the gravity or severity of the crime, whether or not the convict had exhibited remorse, and a number of other factors of this sort. The problems with this approach had already been acknowledged by the Supreme Court before. In Anil vs State of Maharashtra, a 2014 judgment, the Court had noted:

“… the State is obliged to furnish materials for and against the possibility of  reformation and rehabilitation of the accused. Facts, which the Courts, deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already  stated, calls for additional materials.”   

Focusing upon this, in its 17th April order, the Court directed the government to assign a probation officer (PO), with the task of preparing a report, devoted to the following two questions:

“(i) Is there a probability that, in the future, the accused would commit
criminal acts of violence as would constitute a continuing threat to society?
(ii) Is there a probability that the accused can be reformed and rehabilitated?”

For the purposes of greater objectivity, the Court laid down three further guidelines that the PO would take into account:

(a) enquire from the jail authorities and seek a report as to the conduct of the accused while in jail.

(b) meet the family of the accused and local people [to] seek their inputs on the behavioural traits of the accused with particular reference to the two issues highlighted.

(c) seek specific inputs from two professionals with not less than ten years’ experience from the fields of Clinical Psychology and Sociology.”

Following the directions of the Court, the report was prepared, “based on a personal interview with the Appellant in Tihar Jail, Delhi, interviews with his family members and neighbours  in his native place in Siwan, Bihar, the report of the local panchayat and a report from the Police Station (PS) Basatpur. The SIR also incorporates inputs of the Clinical Psychologist, Psychiatric Social Worker and Superintendent of Jail, Tihar as well as the assessment by the Medical Board of the Institute of Human Behaviour and Allied  Sciences („IHBAS‟).”

It was found that, for the most part, the report was positive. Even though the convict had exhibited no outward signs of repentance, the PO report noted that, based on its findings as a whole, repentance “needs to be developed through reformative and corrective services and it will take a long process for reformation and reintegration into the society.” This was affirmed by the medical report, according to which “there is nothing to suggest that the index client cannot be reformed and reintegrated and reformative process through social correctional measures.”  Accordingly, the sentence of death was commuted to one of life imprisonment.

There is a shift, therefore, from a situation in which the potential for reformation and rehabilitation is judged from the perspective of two or three judges, with their individual biases, to one in which a whole host of stakeholders, who have had an intimate connection with the convict, are brought into the equation, with the requirement of consulting medical panels adding an extra layer of objectivity to the enquiry. A positive reference from any one or more of those bodies would create enough of a doubt in the Court’s mind to – following Santosh Kumar Bariyar’s “principle of prudence” – refrain from confirming the death penalty.

In the long road towards abolition, this is perhaps one small – yet hugely significant – step.