In the previous essay, we noted the analytical problems with the Supreme Court’s judgment in Air India vs Nargesh Mirza. However, six years later, in 1987, the Supreme Court handed down another judgment that substantially undercut the ratio in Nargesh Mirza. In MacKinnon Mackenzie vs Audrey d’Costa, a company offered different remuneration to male stenographers and female stenographers (the latter were called “Confidential Lady Stenographers”, because they performed a range of functions such as attending to correspondence etc. The Supreme Court held that paying a lesser wage to female stenographers violated the Equal Remuneration Act. It observed:
“Wherever sex discrimination is alleged, there should be a proper job evaluation before any further enquiry is made. If the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job) as distinct from criteria which set out different values for men and women on the same demand and it is found that a man and a woman employed on these two jobs are paid differently, then sex discrimination clearly arises.”
Notice the underlined part: “by the application of criteria which are by themselves non-discriminatory.” This effectively forestalls a Nargesh Mirza-type situation, where sex is the criterion that constitutes the differentiation in the job in the first place. The Court in MacKinnon Mackenzie emphasised that in adjudicating the validity of an unequal classification, it would consider the nature of the work involved, factoring out those criteria that could not themselves be explained without resorting to discriminatory justifications. Again, for instance, this would prevent a situation such as Nargesh Mirza, where the Court relied upon the fact that the qualification conditions for Air Hostesses required them not to be married, and that the absence of a similar condition for Air Flight Pursers was proof of how the two jobs were different! Indeed, the Court specifically held that “deliberately create such conditions of work only with the object of driving away women from a particular type of work which they can otherwise perform with the object of paying them less remuneration elsewhere in its establishment.”
This observation is crucial, not merely because of its repudiation of Nargesh Mirza’s logic, but also because of its affirmation of the proposition that discrimination occurs not merely through direct exclusion of women, but also from structuring the workplace in a manner that disproportionately burdens women. Of course, the Court is cautious: it limits its observation to “deliberate” creation of conditions, which, in the context of the case seems to be merely about paying women less. As we have seen before, though, unequal remuneration is not the only way in which the workplace might operate to the detriment of women. The issues are structural, and involve a host of conditions, such as a minimal number of working days in a year, a perception of maternity leave as a benefit, and not a right, etc. In a seminal article written in 1989, the feminist scholar Joan Williams observed:
“Western wage labor is premised on an ideal worker with no child care responsibilities. In this system men and women workers are allocated very different roles. Men are raised to believe they have the right and the responsibility to perform as ideal workers. Husbands as a group therefore do far less child care, and earn far more, than their wives. Women are raised with complementary assumptions. They generally feel that they are entitled to the pleasure of spending time with their children while they are small. Moreover, even upon their return to work, the near-universal tendency is to assume that women’s work commitment must be defined to accommodate continuing child-care responsibilities. This gender system results in the impoverishment of women, since it leads mothers systematically to “choose” against performing as ideal workers in order to ensure that their children receive high-quality care. The phenomena that comprise the gender system today are often noted, but the way the system functions as a coherent whole remains largely hidden.”
The key insight of feminist scholars, therefore, was to expand the understanding of discrimination from individual acts of exclusion or subordination (which naturally map on to a reason-based model of discrimination law), to interrogating the systems and structures within which discrimination is made possible. This, of course, is a much more difficult enquiry, especially because it requires questioning the baselines that we intuitively assume as “normal” (such as the default structure of the workplace). And however hesitant and cautious, MacKinnon Mackenzie’s focus on “conditions of work” allows for the beginnings of a more holistic and structural understanding of sex discrimination, than what the Courts have otherwise admitted.
It is important to note that MacKinnon Mackenzie was decided by a bench of two judges, and consequently, was bound by Nargesh Mirza. This led to an odd contradictions towards the end of the judgment, where the Court was constrained to observe: “We do not agree that the work of the Confidential lady Stenographers is a sex based one like the work of air hostesses. There is no custom or rule that only ladies can be Confidential Stenographers.” But surely there was no “rule” that required a division of cabin crew into (female) Air Hostesses and (male) Air Flight Pursers, and if there was a custom, surely it could not be made immune from constitutional scrutiny. As the Court itself had pointed out earlier in its judgment, the key issue was whether the two jobs were accorded equal value using criteria that were in themselves non-discriminatory, and in Nargesh Mirza, there had been a judicial finding to the effect that there was no legally significant difference in the work performed by Air Hostesses and Air Flight Pursers. Whichever way one spins it, the logic of MacKinnon Mackenzie is directly at odds with Nargesh Mirza. Nonetheless, in its (understandable) attempt to distinguish Nargesh Mirza, the Court got itself into all kinds of contortions, arguably undermining its own argument.
On an optimistic reading of MacKinnon Mackenzie, however, there’s no conceptual conflict with Nargesh Mirza. After all, even in Nargesh Mirza, the Court stated that “attributes” would be a part of determining whether the two cadres could be treated separately. It then went on to ignore that condition in adjudicating the concrete issue, but it was merely this proposition of law that MacKinnon Mackenzie was following when it held that equal remuneration is required “if the two jobs in an establishment are accorded an equal value by the application of those criteria which are themselves non-discriminatory (i.e. those criteria which look directly to the nature and extent of the demands made by the job).” On this reading, MacKinnon Mackenzie correctly applied Nargesh Mirza’s logic, where Nargish Mirza had failed to correctly apply its own logic. The core reasoning – that sex-based classifications cannot be sustained simply by invoking service law and creating separate cadres – remains good law.
The logic of MacKinnon Mackenzie was taken to its conclusion by the Supreme Court in Uttarakhand Mahila Kalyan Parishad vs State of UP, decided by the Supreme Court in 1992. In that case, the Supreme Court found that the Uttar Pradesh education department’s creation of cadres of male and female teachers, and of paying female teachers less than male teachers, and according them inferior promotional avenues, was illegal. Consequently, it held: “While we direct by mandamus that the State of Uttar Pradesh shall equate the pay scales with effect from 1-10-1991, so far as the creation of promotional avenues is concerned, we direct the State of Uttar Pradesh to have this examined by an appropriate Committee within two months and give additional promotional avenues to the lady teachers and other employees in the educational line doing administrative business so that their grievance as raised in this petition is properly met.” Consequently, the remedy for violation was not simply invalidation of the cadres (which would leave an administrative vacuum), but at least a partial merging of the cadres (as far as pay scales were concerned), with directions to the State to equalise promotional avenues in a time-bound manner.