In the case of Air India air hostesses, the Supreme Court ruling has attracted opprobrium for being retrograde and discriminatory. It disagrees with and overrules a Bombay High Court decision that, relative to their male counterparts at 58, the retirement age of air hostesses at 50 is sexist. The critique, prima facie, seems warranted. The question is whether the nuances of the situation reach beyond the sexist observation that there is nothing objectionable for air hostesses to wish for a happy and tension-free life with their families at home.
The origin of the decision can be traced back to the seminal decision of the Supreme Court in 1981 in Air India v Nargesh Meerza, which challenged the service rule forcing air hostesses to retire on the grounds of marriage, first pregnancy or 35 years of age, whichever occurred earlier. The submissions from the Corporations stressed the importance of beauty, youth and glamour as important characteristics of inflight service. The offending rule was annulled by the Supreme Court, which increased the retirement age of air hostesses to 45, with a further obligatory period of 10 years.
Case Name – Air India v. Nargesh Meerza
Citation – AIR 1981 SC 1829
Quorum – Justice Fazalali and Justice Syed Murtaza, Justice Varadarajan A. and Justice Sen
Petitioner – Air India
Respondent – Nargesh Meerza
I. Introduction
In the first three decades after the Constitution, with the exception of Yusuf Abdul Aziz’s judgement of 1954, which cursorily affirmed the constitutionality of adultery, the Supreme Court did not have an ability to deal seriously with sex discrimination pursuant to Article 15(1).
The cases we have addressed so far have all been determined by separate High Courts. That changed with the decision of a three-judge bench in Air India v Nargesh Meerza in 1981, which remains one of the seminal judgments on the subject by the Supreme Court. It is also an analytically unsatisfactory opinion, which does not take into account the complex and reflective jurisprudence on sex discrimination that as we have seen, has been in the process of being established across the country by different High Courts [1].
II. Facts of the Case
The circumstances and history that lead to the case were highly complicated, involving two companies (Air India and Indian Airlines Corporation) and numerous legal rounds before two tribunals and then the courts. Regulations 46 and 47 of the Air India Employees Service Regulations were challenged.
These Service Regulations created major differences in the salaries and advertising avenues of male and female in-flight cabin crew (the male cabin crew were referred to as “Air Flight Pursers” [“AFPs”] and the female cabin crew as Air Hostesses [“AH”] in compliance with the designations of Air India).
III. Analysis of the Case
For example, according to Regulation 46, where Flight Pursers have a retirement age of 58 years, Air Hostesses were required to retire at 35 years of age or to marry (if they were married within four years of entering the service) or to have their first baby, whichever occurred sooner. Under Regulation 47, subject to the sole discretion of the Managing Director, this time may be extended.
The first round of proceedings took place before two Tribunals, which successively upheld the Rules, making findings such as the need to cope with temperamental customers by getting “young and attractive” air hostesses. The case ultimately came to the Supreme Court, which partially upheld the rules, partially revised them, and partially struck them down.
IV. Reviewing Constitutional Provisions
Sections 14 (equality before law), 15(1) (non-discrimination on grounds of sex), and 16(2) (non-discrimination on grounds of sex) were the constitutional clauses at issue before the Supreme Court (non-discrimination on grounds of sex in public employment). It would be necessary to consider them separately to get a better view of the Court’s rationale.
Article 14 (classification test):
The Court of First Instance observed that:
“Art. 14 bans hostile discrimination, but the classification is not fair. Thus, if persons belonging to a given class are handled differently in the public interest to advance and improve participants belonging to backward classes in spite of their unique attributes, qualities, style of recruiting and the like, such a designation does not amount to discrimination.”
It then stated that separate classes were created by Air Flight Pursers and Air Hostesses (in-service law terms). Consequently, the “unavoidable inference that follows is that there are two distinct and distinct groups with distinct service requirements and distinct incidents, [and] the issue of discrimination does not occur.”
Yet this rationale has something deeply puzzling about it. Admittedly, within the same agency, various cadres operate in service legislation, with their own separate procurement laws, promotional avenues and terms of service. In itself, this does not pose any concern with Article 14. These cadres are created in order to streamline individuals performing one style of the job into a single group when it comes to the rules governing them.
In the Nargesh Meerza case, however, the very constitution of the cadre was based on sex – specifically, only women could become air hostesses by definition, and only men could become air flight pursers. Rather than questioning whether the original sex-based division was compatible with Articles 14, 15 and 16, the Court instead continued by finding out that because the terms of operation and the promotional avenues of the two cadres were distinct, they thus formed distinct groups and should reasonably be handled separately [2].
This is an unusual statement. It essentially means that the protections under Articles 15 and 16 are useless; all I have to do is split my workers into genders, caste or religious lines in order to get around them, assign them different names, treat one class in a way much inferior to the other and then defend it by using the very distinctness of treatment to argue that the two constitute separate cadres.
In other words, the Court used the fact that women were treated less fairly than men to conclude that women and men formed distinct groups and that inferior treatment was thus justified. The vicious circularity of its logic is shown by the fact that in order to show that AFPs and AHs formed separate cadres, the Court found that one of the criteria for AHs to be hired was that they had to be unmarried, while the AFPs did not have such a requirement.
As we have seen before, it is itself unfair to place marriage as a disqualification on women but not on men; here for distinct treatment, the Court uses it as evidence that AFPs and AHs constitute separate groups.
What is strange, though is that the Court appeared to be mindful of this in its original formulation. It observed that “where individuals belonging to a particular class are treated differently in the public interest in view of their particular characteristics, qualities, mode of recruitment, and the like… there will be no discrimination.” However, the “special attributes” and “qualities” slipped out of the study of its actual analysis of the flight pursers/air hostess distinction, and the Court focused instead on the recruitment, service requirements and advertising avenues. Indeed, one of the key problems before the Court was whether multiple tasks were carried out by AFPs and AHs.
The Court strongly rejected the arguments of Fali Nariman that the functions of the two sets of cabin crew were different; it held that a study of the job functions detailed in the affidavit clearly reveals that the functions of the two intersect on certain points, while obviously different, but the distinction, if any, is one of degree rather than type.
Articles 15 and 16:
The Court’s review of Articles 15 and 16 was threadbare relative to its exposition of Article 14. In a few pages, it ignored the challenge. It observed, first of all, that it was specified, pursuant to Section 16 of the Fair Remuneration Act, that:
“Wherein the light of all the circumstances of the case the Government concerned is satisfied that the disparities in the remuneration, or particular kinds of remuneration, of male and female employees in any institution or jobs are based on a factor other than sex; it can, by reason of the note, be based on a factor other than sex.”
The Court held that the Central Government’s declaration, therefore, completely resolves the matter.
Nevertheless, the matter is not quite as straightforward as that. There are three reasons why in this situation, the Section 16 notice should not have settled the matter. First of all, as the text of the section makes clear, the considered fiction is limited in nature: the regulation by the Government exempts only the designation of responsibility under the Equal Remuneration Act and does not guarantee it protection from a constitutional challenge.
Secondly, and most critically, Section 16 deals with cases where the government finds the designation to be dependent on a criterion other than sex. This, as we have seen before, is an approach to the rule of discrimination that reflects on the basis of the discriminator, not the consequences of the law on covered constituencies.
However, for adjudicating constitutional claims against discrimination, there are overwhelming jurisprudential reasons for holding the effects-based test to be the correct one. Section 16 will, however, have little effect on the enquiries referred to in Article 15(1) or 16(2). And eventually, even though we embrace Article 15(1) to implement a paradigm dependent on justification, in order to foreclose an impartial constitutional enquiry by the Judge, 16 simply cannot be read. If that was going to be the case:
“Where the Appropriate Government declares that a classification is not in breach of Article 15(1) of the Constitution, any such classification shall be deemed not to be in breach of Article 15(1). Such a reading will at least make Section 16 suffer from the undue delegation.”
It seems clear, thus, that the Supreme Court was wrong in holding that the Central Government’s declaration concludes the matter entirely.
Noting this the Supreme Court noted that even otherwise, what is prohibited by Articles 15(1) and 16(2) is that discrimination should not be discriminated against solely on the basis of sex. These provisions of the Constitution do not preclude the State, along with other factors, from discriminating on the grounds of sex.
It then quoted extracts from Yusuf Abdul Aziz and M.C. Muthamma, before observing:
“For these reasons, however, Mr Setalvad’s contention that the conditions of service relating to retirement, etc., merely constitute discrimination on grounds of sex is overruled and it is held that the conditions of service referred to above are not, on that basis, contrary to Article 16.”
However, there is simply no reasoning on the part of the Court to equate the hypothesis with the inference. Apart from sex which was at stake in the disputed grouping, it made little attempt to adduce the “grounds”. There are very good explanations for this; it would have forced the Court to address the key question which it had omitted in the course of its judgement: what was the basis for the original division into Air Flight Pursers (male) and Air Hostesses (female), on which the various conditions of service were superimposed?
The Court would have been left with no choice but to maintain that the designation was only on the basis of sex, especially after finding that the work which was done coincided [3].
Article 14 and Arbitrariness:
The classification test referred to in Article 14 and the dismissal of the prejudice arguments referred to in Articles 15 and 16 left one more arrow in the challengers’ bow: to contest the Regulations as “arbitrary” according to Article 14. As we all know, there are two parallel tests pursuant to Article 14: first a classification test requiring the existence of an intelligible differential between the two groups created by the classification and a rational nexus with the objective of the State; and, second, the judicially-invented “arbitrary” test: under Article 14, the legislation will fail if it is “manifestly unreasonable” or “absolutely unreasonable” or “absolutely arbitrary”.
The “arbitrariness test” has never really been granted clear logical or definitional roots in the history of the Court. Again, in Nargesh Meerza, its manipulability was in fact. On the provision that if she married within four years of joining, the Air Hostess’s job would be revoked, the Court noted:
“We do not think that the laws suffer from any constitutional infirmity as far as the issue of marriage within four years is concerned. An AH continues her career between the age of 19 and 26 years, according to the legislation. Most AHs are not just SSC, which is the basic requirement, but they have much higher credentials, and very few plan to marry after joining the service immediately. Accordingly, the Law requires an AH to marry at the age of 23 if it has entered the service at the age of 19, which is a very sound and salutary provision by all means.
In addition to enhancing the employee’s health, it aims to support and improve our family planning programme. Second, if a woman marries near the age of 20 to 23 years, she becomes fully mature and there is every likelihood that such a marriage will prove fruitful, all things being equal. Thirdly, the Corporation has rightly pointed out to us that if the marriage bar is abolished within four years of operation, then the Corporation would have to incur considerable expense either on a temporary or ad hoc basis in hiring additional AHs to replace the working AHs if they conceive and any period short of four years will be too little time for the Corporation to phase out.”
Apart from remembering, again that the elephant in the room, i.e., that men were not entitled to the same marriage requirements that, according to the Court, were necessary for “health and family planning,” one need not focus too long on the outright stereotyping that the Court engaged in here. While upholding the marriage requirement, the Court nevertheless found the requirement of termination of the first pregnancy to be unconstitutional, noting:
“It seems to us that under certain conditions, the termination of the services of an AH is not only a callous and cruel act but an open insult to the most sacrosanct and revered institution of Indian womanhood.”
The Court has described these changes as very fair. Curiously, the Court also accepted the dissenting decisions in the American case of General Electric Company vs. Martha Gilbert [4], which ruled that a division based on pregnancy amounted to sex discrimination, even though it upheld the termination of the third pregnancy. The two points of view are difficult to reconcile, and the Court’s efforts to do so may underline the intellectual aridity of the doctrine of “arbitrariness”:
“In the first case, the amendment to avoid the third pregnancy of two existing children will be of greater importance to the welfare of the AH involved as well as to the well-being of the children concerned. Secondly, as mentioned above, the same factors will extend to a third pregnancy bar when two children are already there when coping with the law on the prohibition of marriage within four years since as the entire world faces the issue of population growth, it would not only be beneficial but completely necessary for any nation to see that the family planning policy is not only whipped up but maintained at sufficient levels”
Finally, after exceeding the age of 35, the Court struck down the absolute authority bestowed upon the Director to terminate the work of Air Hostesses, holding that the unchannelled discretion amounted to an undue delegation of power.
V. Summary of the Judgement and Arguments Advanced
To spell out the frustration of Air India vs. Nargesh Mirza, the above review should be sufficient. In order to recap [5]:
- In holding that AFPs and AHs constituted distinct classes and, accordingly, that different terms of service were valid, the Court disregarded the fact that they themselves constituted classes along the lines of sex. In fact, the Court used the fact that the requirements of service for women were inferior to those for men to hold that the two represented distinct cadres in the field of service law and that the disparity in terms of service was thus justified. This contention is cruelly contradictory.
- In holding that the notification made by the Government pursuant to Section 16 of the Equal Remuneration Act gave rise to the issue of whether the Legislation discriminated on the grounds of sex, the Court made three errors: first the expansion of the scope of Section 16 to the Constitution; second, the statement made by the Government on the question of constitutional rights was regarded as conclusive; and, third, indifference[6].
- The Court made no effort to prove that Articles 15(1) and 16(2) were not relevant to the circumstances at hand, irrespective of the Government’s notification under Section 16 of the ERA.
- The arbitrary investigation by the Court ended up perpetuating and supporting the precise prejudices that the statute of discrimination is meant to obliterate. These included the role of women as caregivers and “family planning vessels”.
VI. Conclusion
Overall, in the annals of Indian sex discrimination law, Nargesh Meerza is an extremely disappointing decision. As we can see in subsequent essays, it was not only harmed by the logic it employed, but also by its position as a precedent.
In the sense of service and labour law, some of the most notable cases of sex abuse in India (and elsewhere) have been taken to the Court. A constitutional jurisprudence was launched by Nargesh Meerza where the rules of service law dominated robust constitutional review and also provided primacy to the latter. As we will see, this will lead to the radical undermining of constitutional analysis under Articles 15 and 16 of the non-discrimination provisions.
References
[1] Chandra, S., Sen, J., & John, M. (2013). Administrative Law-Fall 2014.
[2] Kannabiran, K. (2009). Judicial meanderings in Patriarchal thickets: Litigating sex discrimination in India. Economic and Political Weekly, 88-98.
[3] Singh, A., & Pandey, A. (2016). Women Empowerment, CSR &HRD. International Journal of Management, IT and Engineering, 6(4), 68-83.
[4] General Electric Company v. Martha Gilbert, 429 U. S. 125 (1976).
[5] Saikia, R. (2013). A Few Aspects of Gender Justice and Social Jurisprudence in India: A Critique. Binay Barman, 211.
[6] Women and Justice, Air India v. Nargesh Meerza, Available Here
