After two decades of litigation, Air Hostesses, Air Flight Pursers and the Union of India met again, in one final battle before the Courts. After the decision of the Supreme Court in Yeshaswinee Merchant, refusing the merger of cadres, the struggle for equalisation was taken (again) outside the judiciary. In 2003, Air India allowed its female cabin crew members (who had been recruited after the first equalisation in 1997) to undertake flying duties until the age of 58, bringing them on par with the male cabin crew. Two years later, in 2005, Air India also decided that henceforth, executive female crew members would be eligible for the post of “In Flight Supervisor” (IFS), thus effectively merging a promotional category that had only been open to men. In Rajendra Grover vs Union of India, this was challenged by the male cabin crew that had been recruited before 1997.
Recall, once again, the tortuous history. In 1995, for the first time, the management and cabin crew of Air India had entered into an understanding, clarifying that for new recruits, cabin crew functions would be interchangeable, but without affecting promotional avenues. Promotional avenues up until the first executive level were themselves merged in 1997, when one cadre – that of “cabin crew” was created. It was the 1997 settlement that had been challenged by the Air Hostesses who were part of the executive class, leading to the Bombay High Court order creating absolute parity between male and female cabin crew – which, in turn, had been struck down in Yeshaswinee Merchant. But now, what Nargesh Mirza and Yeshwasinee Merchant had refused to do via the Constitution, had been done by Air India through Office Orders: complete equalisation of male and female cabin crew.
Before the Delhi High Court, the Petitioners argued that Air India was not entitled to disturb the status that had been guaranteed to them by Nargesh Mirza and Yeshaswinee Merchant, as well as by numerous prior settlements. They contended that the “In-Flight Supervisor” was a promotional post, specifically part of the male cabin crew cadre, which had clearly been held to be separate and different from the Air Hostess cadre in both Nargesh Mirza and Yeshaswinee Merchant, as well as by the Settlements. Consequently, “the impugned administrative order inasmuch as it seeks to grant parity between two unequal classes and separate and distinct cadres is a violation of Article 14 of the Constitution of India.” The Respondent Air Hostesses, on the other hand, argued that the IFS was an entirely functional post (and not a promotional one), and that it was therefore not bound to any one particular cadre. In any event, the equalisation did not affect either the Nargesh Mirza judgment or the settlements, since IFS was a supervisory or executive post, whereas the controversy in the prior cases had been between cabin crew who constituted “workmen” within the meaning of labour law. The Air Hostesses countered the male cabin crew’s invocation of the Constitution by making constitutional claims of their own: “denying a woman the functions of the IFS and maintaining it as a male preserve is violative of Articles 14, 15 and 16 of the Constitution.”
The Delhi High Court found that, on a close reading of Nargesh Mirza and Yeshaswinee Merchant, those cases had only held that the existing status quo did not constitute hostile discrimination. They had not, however, barred the government from changing the status quo by exercising its executive prerogative. This, indeed, was what had happened: “Post 1997, there has been a merger of the cadres of the male and female members of the cabin crew. This is quite different from what prevailed at the time of the judgment in Nergesh Meerza. It is nobody’s argument that such a merger is unconstitutional or invalid or that it runs contrary to what was held in Nergesh Meerza. In fact, in Yeshaswinee Merchant also, the Supreme Court recognized that the employer can take a policy decision to re-organise its organizational structure to remove elements of discrimination.”
The last line is particularly interesting, because of course it was the Court’s opinion in Nargesh Mirza and Yeshaswinee Merchant that unequal service conditions of male and female cabin crews did not amount to discrimination. Taken literally, the Delhi High Court’s sentence would lead to the odd result that the Supreme Court had acknowledged that discrimination existed, but contrary to the requirements of the Constitution, left it to the State to deal with them (of course, our argument throughout this series has been that that was what the Court effectively did, but that is neither here not there).
In any event, the Court concluded the matter by saying that after the merger of cadres in 1997, “in the matter of either flying duties or in the matter of seeking avenues of promotion, the rights of one cadre need not be to the exclusion of the rights of the other. In fact what has happened is that in terms of the impugned order both the pre-1997 male and female cabin crew have an equal chance of being considered for performing the function of IFS in accordance with their seniority.”
The Delhi High Court’s decision was carried in appeal to the Supreme Court which, in 2011, dismissed the appeal with a few perfunctory lines that need not concern us. Thus, the decades-long battle ended. But the thirty-year long litigation compels us to ask a few important questions about the Supreme Court’s institutional role.
As we have seen, the basis of the dispute was the undeniable fact that male cabin crew and female cabin crew were treated differently. In the first round of litigation before the Supreme Court, the treatment of the female cabin crew was clearly inferior: compulsory retirement upon first pregnancy or within four years of marriage, or on attaining the age of 35. Despite the fact that the entire basis of division was the sex of an employee, the Court managed to find that there was no discrimination under Articles 14, 15 and 16 of the Constitution. The Air Hostesses took their case to the Parliament, and won important concessions, such as an increase in retirement age (although still not on par with men) – and, in 1997 – an equalisation of functions. Partly based upon this, the Bombay High Court then ordered complete parity and a merger of the cadres. The Supreme Court reversed this decision, and reinstated the old, unequal system. Parity was finally made complete through executive action, which – ultimately – was upheld by the Court.
Notably, all three institutions of the State were involved in various stages: the Supreme Court, Parliament and the Government. Out of these, the Air Hostesses failed to find relief in only one of the three: the Court. Equalisation was repeatedly rejected by the Courts, which refused to find unconstitutional discrimination, but was won before the Parliament and the Government. If you agree with the basic analysis that constitution of cadres (with unequal service conditions) is clearly sex-based discrimination (as even the Delhi High Court seemed to do in Rajendra Grover), then this entire litigation is strangely counter-intuitive: civil rights were, ultimately, protected not by the institution that is constitutionally mandated to do so, but by the institutions that they are supposed to be protected from.
The Air Hostess litigation, and the area of non-discrimination law, is not an isolated example. In the domain of free speech, the Supreme Court in 1952 upheld the constitutionality of the draconian Press (Emergency) Powers Act, which had been passed by the colonial British government in 1931, with sweeping powers of censorship designed at controlling newspapers. The Act was repealed five years later by Parliament. In the domain of personal liberty, the Court upheld the stringent provisions of the Terrorist and Disruptive Activities (Prevention) Act, which systematically denuded criminal procedure safeguards. The TADA was repealed by Parliament soon after, in the face of sweeping criticism. More recently, the draft women’s rights bill put out by the Delhi government has the first mention of non-discrimination on the grounds of sexual orientation, two years after the Supreme Court upheld the constitutionality of Section 377.
While these are merely anecdotal references, there is something amiss when whatever protection is accorded to civil rights, is won in majoritarian institutional fora, and lost in the constitutional court. I think this points to a need to fundamentally reappraise the institutional role of the Supreme Court within the Indian constitutional scheme. Over the last three decades, a narrative has developed that has characterised the Court as activist and interventionist, aggressively going beyond the text of the Constitution to find and enforce new rights, and coaxing or goading a moribund executive into performing its mandated functions. This narrative is based entirely on the Court’s PIL jurisprudence. Supporters have praised the Court for fulfilling the vacuum left by a non-functioning executive and fractious coalition politics, and for interpreting the Constitution in a way that is “pro-people”; critics have accused the Court of violating the separation of powers and encroaching into the domain of elected representatives. But in all this debate over whether the Supreme Court has gone beyond its mandated functions and whether that is justified, the question is rarely asked now whether the Court is effectively doing what it is uncontroversially required to do: protect civil rights under Part III of the Constitution. Does the fact that the Court has, more and more, begun to resemble the executive in its sweeping directions and its rhetoric, bear any connection with the gradual erosion of its counter-majoritarian role in protecting civil rights? We need to ask not only what (if anything) we have gained through “social action litigaton” (what one scholar describes – in my opinion with extreme inaccuracy – as “demosprudence”), but what we have lost with a Court that has become – as Lord Atkin once said – “more executive-minded than the executive.” And my sense is that with an honest analysis, we might find that what we have lost has not been worth losing after all.