With the exception of its 1954 judgment, Yusuf Abdul Aziz, which cursorily upheld the constitutionality of adultery, the Supreme Court did not have occasion to seriously deal with sex discrimination under Article 15(1) in the first three decades after the Constitution. The cases that we have discussed so far were all decided by various High Courts. That changed in 1981, with the decision of a three judge bench in Air India v Nargesh Mirza, which remains one of the landmark Supreme Court judgments on the issue. It is also, as I shall argue, an analytically unsatisfactory decision, which fails to take into account the nuanced and reflective sex discrimination jurisprudence which, as we have seen, was in the process of being developed by various High Courts across the country.
The facts and history that led to the case are extremely complex, and involve two entities (Air India and Indian Airlines Corporation), and multiple rounds of litigation before two tribunals, and then the courts. The following is a highly simplified summary. Briefly, Regulations 46 and 47 of the Air India Employees Service Regulations were challenged. These Service Regulations had created a significant amount of disparity between the pay and promotional avenues of male and female in-flight cabin crew (in accordance with Air India’s designations, the male cabin crew shall be referred to as “Air Flight Pursers” [“AFPs”], and the female cabin crew as Air Hostesses [“AH”]). For instance, under Regulation 46, while the retirement age for Flight Pursers was 58, Air Hostesses were required to retire at 35, or on marriage (if they married within four years of joining the service), or on their first pregnancy, whichever occurred earlier. Under Regulation 47, this period could be extended, subject to the absolute discretion of the Managing Director.
The first round of litigation took place before two Tribunals, which had successively upheld the Regulations, making observations such as the necessity of having “young and attractive” air hostesses to deal with temperamental passengers. The case finally came to the Supreme Court, which upheld the regulations in part, modified them in part, and struck them down in part.
Before the Supreme Court, the constitutional provisions at issue were Articles 14 (equality before law), 15(1) (non-discrimination on grounds of sex), and 16(2) (non-discrimination on grounds of sex in public employment). In order to have a clear understanding of the Court’s reasoning, it will be important to consider them separately.
Article 14 (the classification test): The Court began by observing that “Art. 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination.” It then noted that Air Flight Pursers and Air Hostesses formed different classes (in service law terminology, separate “cadres”): they had different recruitment conditions and different promotional avenues. Consequently, the “inescapable conclusion that follows is that … there are two separate and different classes having different conditions of service and different incidents, [and] the question of discrimination does not arise.”
But there is something extremely puzzling about this reasoning. Admittedly, in service law, there are different cadres within the same department, with their own separate recruitment rules, promotional avenues and service conditions. This, in itself, does not raise any Article 14 issue. These cadres are constituted in order that persons doing one kind of work are streamlined into a single category when it comes to the rules governing them. In Nargesh Mirza, however, the constitution of the cadre was itself on the basis of sex. That is to say, by definition, only women could become air hostesses, and only men could become Air Flight Pursers. Instead of starting off by examining whether this initial sex-based classification was in conformity with Articles 14, 15 and 16, the Court instead began by noting that because the service conditions and promotional avenues of the two cadres were different, therefore they formed separate classes, and could legitimately be treated separately! This is strange reasoning. It effectively means that the guarantees under Articles 15 and 16 are useless; in order to get around them, all I need to do is to divide my workforce along sex, caste or religious lines, give them different names, treat one class in a manner far inferior to the other, and then justify it by invoking that very separateness of treatment to argue that the two form separate cadres. To put it another way, the Court used the fact that women were being treated less favourably than men to hold that women and men formed separate classes, and that therefore inferior treatment was justified. The vicious circularity of his reasoning is exhibited by the fact that in order to prove that AFPs and AHs formed different cadres, the Court observed that one of the recruitment conditions for AHs was that they must be unmarried, whereas there was no such condition for the AFPs. As we have seen before, imposing marriage as a disqualification upon women but not upon men is itself discriminatory; here, the Court uses that as proof that AFPs and AHs form different classes, for different treatment!
What is stranger, however, is that in its initial formulation, the Court seemed to be aware of this. It noted that “where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest…”, there would be no discrimination. In its actual analysis of the flight pursers/air hostess distinction, though, the “special attributes” and “qualities” somehow dropped out of the analysis, and the Court only focused on the recruitment, service conditions and promotional avenues. Indeed, one of the major issues before the Court was whether AFPs and AHs performed different functions. The Court emphatically rejected Fali Nariman’s submissions that the functions of the two sets of cabin crew were different; it held that “a perusal of the job functions which have been detailed in the affidavit, clearly shows that the functions of the two, though obviously different overlap on some points but the difference, if any, is one of degree rather than of kind.” And yet, despite this finding, the Court nonetheless was able to hold that there was no Article 14 violation.
Articles 15 and 16: In comparison with its exposition of Article 14, the Court’s analysis of Articles 15 and 16 was threadbare. It dismissed the challenge in a couple of paragraphs. It noted, first, that under Section 16 of the Equal Remuneration Act, it was stated that “where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the differences in regard to the remuneration, or a particular species of remuneration, of men and women workers in any establishments or employment is based on a factor other than sex, it may, by notification, make a declaration to that effect, and any act of the employer attributable to such a difference shall not be deemed to be a contravention of any provision of this Act.” In this case, the government had passed a notification under Section 16. The Court held that “the declaration by the Central Government, therefore, completely concludes the matter.”
The matter, however, is not quite as simply as that. There are three reasons why the Section 16 notification should not have concluded the issue in this case. First, as the text of the Section makes clear, the deeming fiction is limited in nature: the Government’s notification only exempts a classification from liability under the Equal Remuneration Act, and doesn’t give it immunity from a constitutional challenge. Secondly – and most importantly – Section 16 deals with situations where the classification is deemed by the government to be based on a factor other than sex. This, as we have seen before, is an approach to discrimination law that focuses on the discriminator’s reasons, and not on the law’s effects upon protected constituencies. But, as we discussed in the previous essay, there are overwhelming jurisprudential reasons for holding the effects-based test to be the correct one for adjudicating constitutional claims against discrimination. Consequently, Section 16 could have no effect upon the Article 15(1) or 16(2) enquiries. And lastly, even if we take Article 15(1) to incorporate a reason-based model, S. 16 clearly cannot be read to foreclose an independent constitutional enquiry by the Court! If that were to be the case, then S. 16 effectively becomes the following: “where the Appropriate Government makes a declaration that a classification does not violate Article 15(1) of the Constitution, any such classification will be deemed not to violate Article 15(1).” At the very least, such a reading would make Section 16 suffer from the vice of excessive delegation. Therefore, it seems evident that the Supreme Court was incorrect in holding that “the declaration by the Central Government… completely concludes the matter.”
After noting this, the Supreme Court observed that “even otherwise, what Articles IS (l) and 16 (2) prohibit is that discrimination should not be made only and only on the ground of sex. These Articles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with other considerations.” It then cited excerpts from Yusuf Abdul Aziz and M.C. Muthamma, before observing “for these reasons, therefore, the argument of Mr. Setalvad that the conditions of service with regard to retirement, etc., amount to discrimination on the ground of sex only is overruled and it is held that the conditions of service indicated above are not violative of Art. 16 on this ground.”
Yet there is absolutely no reasoning by the Court to link the premise to the conclusion. It made no effort to adduce the “grounds” apart from sex that were at play in the impugned classification. There are very good reasons for this: it would have required the Court to ask the principal question that it had avoided throughout its judgment: what was the basis for the initial classification into Air Flight Pursers (male) and Air Hostesses (female), upon which the different conditions of service were superimposed? Especially after finding that the work performed overlapped, the Court would have been left with no option but to hold that the classification was only on the basis of sex. Instead, and unfortunately, it evaded the question.
Article 14 and Arbitrariness: With the classification test under Article 14, and the discrimination claims under Articles 15 and 16 having been rejected, there was one last arrow left in the bow of the challengers: to impugn the Regulations as “arbitrary” under Article 14. As we all know, there are two parallel tests under Article 14: first, the classification test, which requires there to be an intelligible differentia between the two groups that are created by a classification, and a rational nexus with a State objective; and secondly, the judicially-invented “arbitrariness” test: legislation will fail under Article 14 if it is “manifestly unreasonable” or “absolutely arbitrary”. In the history of the Court, the “arbitrariness test” has never really been provided strong conceptual or definitional foundations. Its manipulability was in evidence again, in Nargesh Mirza. On the condition that the Air Hostess’ employment would be terminated if she married within four years of joining, the Court noted:
“So far as the question of marriage within four years is concerned, we do not think that the provisions suffer from any constitutional infirmity. According to the regulations an AH starts her career between the age of 19 to 26 years. Most of the AHs are not only SSC which is the minimum qualification but possess even higher qualifications and there are very few who decide to marry immediately after entering the service. Thus, the Regulation permits an AH to marry at the age of 23 if she has joined the service at the age of 19 which is by all standards a very sound and salutary provision. Apart from improving the health of the employee, it helps a good in the promotion and boosing up of our family planning programme. Secondly, if a woman marries near about the age of 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal. Thirdly, it has been rightly pointed out to us by the Corporation that if the bar of marriage within four years of service is removed then the Corporation will have to incur huge expenditure in recruiting additional AHs either on a temporary or on ad hoc basis to replace the working AHs if they conceive and any period short of four years would be too little a time for the Corporation to phase out such an ambitious plan.”
One need not dwell too long on the outright stereotyping that the Court engaged in here, apart from noting, yet again, that the elephant in the room – i.e., that men were not subjected to the same standards with respect to marriage which, according to the Court, were crucial for “health” and “family planning”. While upholding the marriage requirement, the Court nonetheless found the requirement of termination on the first pregnancy to be unconstitutional, observing: “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 cherised institution.” In response, Fali Nariman proposed replacing “first pregnancy” with “third pregnancy”, and subjecting Air Hostesses to a series of requirements, such as taking leave without pay during the pregnancy period and having to undergo an annual fitness examination “in the interests of maintenance of efficiency”. These Amendments were described by the Court as “quite reasonable“. Bizarrely, even as it upheld termination on third pregnancy, the Court also accepted the dissenting judgments in the American case of General Electric Company vs Martha Gilbert, which had held that a classification on the basis of pregnancy amounted to sex discrimination! The two standpoints are impossible to reconcile, and the Court’s attempts to do so perhaps highlight the intellectual aridity of the “arbitrariness” doctrine:
“In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, as indicated above while dealing with the rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnancy where two children are already there because when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over population which, if not controlled, may lead to serious social and economic problems throughout the world.”
It would, by now, be multiplying repetitions to point out, yet again, that at the heart of the Court’s reasoning are stereotypes: here, it is the stereotype that the responsibility for bringing up children lies with women, and the assumption the burden of controlling population explosion (!) may also be imposed only upon women.
Lastly, the Court struck down the absolute discretion vested in the Director to terminate the employment of Air Hostesses after they reached the age of 35, holding that the uncanalised discretion amounted to excessive delegation of power.
The above analysis should be sufficient to bring out the discontents of Air India vs Nargesh Mirza. To recap:
(1) In holding that AFPs and AHs constituted separate classes, and therefore different service conditions were valid, the Court ignored the fact that the classes themselves were constituted along the lines of sex. In effect, the Court used the fact that women’s service conditions were inferior to men’s to hold that the two constituted separate cadres in service law, and that therefore the difference in service conditions were justified. This argument is viciously circular.
(2) In holding that the Government’s notification under Section 16 of the Equal Remuneration Act was dispositive of the question of whether the Regulations discriminated on the grounds of sex, the Court made three mistakes: first, extending the scope of Section 16 to the Constitution; secondly, treating the government’s statement on a question of fundamental rights as conclusive; and thirdly, ignoring the difference between the phrases “on the basis of” (ERA), and “on grounds… of“. (Article 15)
(3) The Court made no attempt to show why, independent of the Government’s notification under Section 16 of the ERA, Articles 15(1) and 16(2) were not applicable to the facts at hand.
(4) The Court’s arbitrariness enquiry ended up perpetuating and endorsing the exact stereotypes that discrimination law is designed to obliterate. These included the role of women as care-givers and vessels of “family planning”.
All in all, Nargesh Mirza is a highly disappointing judgment in the annals of Indian sex discrimination law. As we shall see in subsequent essays, its harm was not only in the reasoning that it employed, but its role as precedent. Some of the most important sex discrimination cases in India (and elsewhere) have been brought to the Court in the context of service and labour law. Nargesh Mirza initiated a constitutional jurisprudence where the rules of service law overshadowed rigorous constitutional analysis, and were even giving primacy over the latter. This, as we shall see, would lead to a progressive undermining of constitutional analysis under the non-discrimination guarantee of Articles 15 and 16.