THE AIR INDIA JUDGEMENT
The Writ Petition to the Hon’ble Supreme Court, challenged Regulations 46 and 47 of the Air India Employees Service Regulations. Under Regulation 46 established a discrepancy between the female employees (Air Hostesses) and male employees (Air Flight Pursers) on grounds of retirement age and termination of employment services. Though the retirement age for Air Flight Pursers was to remain as 58 years of age, and for their female counterparts it was to be 35 years of age, in addition to the same the termination of services of the Air Hostesses also provided for conditions of termination on first pregnancy, marriage within 4 years of service or attainment of 35 years of age. Further, Regulation 47 provided extensive powers to the Managing Director to increase ages of retirement to a certain extent on their discretion, which was challenged as being excessive delegation of power as well as arbitrary with respect to Article 14 of the Constitution of India.
The 3 judge bench comprising of J. Fazalali, J. Vardanan, J. Sen held the regulations to be unconstitutional under Article 14 only to the effect of the termination of services on the event of first pregnancy, and the discretionary powers of the Managing Director as excessive delegation of powers. However, the judgement did not hold the varied employment conditions and promotional avenues to male employees and female employees as discriminatory on the basis of sex under Article 15, justifying the same to be covered by the reasonable classification principle under Article 14 of the Constitution of India.
CRITIQUE of the JUDGEMENT
An argument by Air India stated that Article 14 allows for reasonable classification if the members of a particular class are in equal circumstances. This was contended against by the respondents stating that the Air Hostesses as well as the Air Flight Pursers were members of the same cabin crew performing the same duties and were in effect in equal circumstances and the reasonable classification as provided for by Art. 14 does not apply to them. The judgement noted that Air Hostesses and Air Flight Pursuers belonged to different classes as they have different promotional avenues as well as different employment and recruitment conditions. Usually in a service organisation the departments are varied because of the function that is performed, however in this case the entire constitution of the department was formulated on the basis of sex. (Only Men=Air Flight Pursers, Women=Air Hostesses) Instead of paying head to the above, the Court merely justified the reasonable classification on the basis of promotional avenues and employment conditions formed. This clearly amounts to the Hon’ble Supreme Court stating the inferior treatment of women and the fact that they were apparently employed on the basis of being “young and attractive” and dealing with temperamental customers, was a justifiable classification and did not violate Article 14, which is unreasonable.
In addition to the above criticism, another one lies in the defence relied on by the Court to decline the challenge to Article 15(1). Section 16 of the Equal Remuneration Act was cited for this purpose, which the Court held to be completely conclusive in the matter. However, such objective conclusion should not have been reached by the Court. First one being, that the Section 16 and its notification merely excludes a classification on the basis of sex and does not provide immunity from a constitutional challenge. S. 16 merely provides for immunity from liability to a classification between employees other than sex. However, the court rejected Adv. Nariman’s claim of the functions of the male and female employees being completely different, and did not provide for any reason for classification other than sex for S. 16 to come into play and actually completely deny the challenge to Article 15(1).
The above is one of the few examples of the Court merely hinting at, but never fully admitting that the initial classification into Air Hostesses and Air Flight Pursers was itself on the basis of sex, which were then clubbed with the various conditions of service that have been stated. The Court in rejecting the claim of Adv. Nariman stated hereinabove, also admitted that functions are also not distinct rather overlapping, and consequently refused to admit the latent discrimination. Male employees were not subjected to the same household responsibilities and involvement in marriage. The Court assumes that women are burdened with the responsibility of “health” and “family planning”.
The classic feminist critique clearly applies to this judgment and it holds that the assumptions of the unconstitutional Regulations “were cruel and an open insult to womanhood” with respect to the First Pregnancy condition of termination of service. But the language of the judgment never clearly recognises this discrimination, providing an example of the Diplomacy of the Hon’ble Supreme Court, wherein the Court says a lot of things without saying much, but accedes to a discriminatory classification to protect a limb of the Government (Air India) from being held as a backward and unjust regime.
JUDICIAL HISTORY LEADING UP TO NAVTEJ SINGH JOHAR VS. UNION OF INDIA
The Judicial History on this particular precedent is fairly vast as well. In 1987, the question of lower retirement age for air hostesses being violative of Article 14 and Article 15 of the Constitution of India was brought up again. The Petitioner argued that the Service Regulations which forced her to retire after attaining the age of 35 years were discriminatory and that the ruling of Air India v. Nergesh Meerza (Nergesh Meerza Case) should be reconsidered. However, instead of classification on the basis of sex of the employee, the issue was of the employment conditions of air hostesses employed in India as opposed to those employed abroad, which was contended as a reasonable classification by the Union of India under Article 14. However, the Hon’ble Supreme Court opined that the questions of the matter present before them were identical to the ones in the Nergesh Meeerza Case, and therefore made no interference with the Service Regulations and negatived the challenge.
This precedent was again challenged, wherein the Bombay High Court took a view which would later be accepted by the Supreme Court of India in 2018. The High Court of Bombay criticised the differentiation between male and female employees as being violative of Article 14 and Article 15 of the Constitution of India. Subsequent to the Nergesh Meerza case, in 1997, there had been a merger of the male Flight Pursers and Female Air Hostesses into a single cadre, wherein similar uniform service conditions for new employees were present. In the presence of such an advancement, it was held by the High Court of Bombay that a lower retirement age for Air Hostesses would indeed be discrimination on the basis of sex under Article 15 and would not amount to reasonable classification under Article 14. This decision reached the Hon’ble Supreme Court which severely criticised the decision by stating reasons such as non-adherence to earlier binding precedents. However, even though the judgement heavily relied on the Nergesh Meerza case, there was a step forward as it held that the Air Hostesses had to retire only from Flying Duties ( as part of Cabin Crew) at the age of 50 but could continue their services after opting for ground duties. The Air Hostesses themselves as a group played an active part in this settlement.
Nevertheless, the precedent of non violation and unconstitutionality of the Service Regulations was still provided by the Nergesh Meerza Case.
NAVTEJ SINGH JOHAR VS. UNION OF INDIA (2018)
The Judgement delivered by the Constitution Bench comprising of Chief Justice of India Dipak Misra, Justice Rohinton F. Nariman, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice AM Khanwalikar, is being heralded as one of the most progressive judgments and is widely being celebrated across the country. It essentially decriminalised sexual activities between consenting adults irrespective of their gender thus striking down S. 377 of the Indian Penal Code, 1860 to that effect. However, the judgement itself delves into wider spheres like sexual orientation, right to intimacy as well as diminishing pre-established gender roles. It delved into previous positions and the classifications that the Hon’ble Supreme Court had considered as reasonable, and the deeper question of whether it hinted at classification on the grounds of sex.
Therefore, the entire contention with regards to the classification of male and female Employees of Air India, and their differential retirement ages, which were rooted heavily in the idea of gender roles and sexual stereotypes, was brought to question and consequently over-ruled. The link between this judgement and the Nergesh Meerza is rooted in discrimination on the basis of Sex under Article 15 (1) of the Constitution of India. The aspect of the impugned judgement which was targeted was that if a particular class is treated differently on the basis of the “special characteristics”, it does not amount to discrimination.
Justice Chandrachud has criticised the earlier view of the Hon’ble Supreme Court by stating that the ancient, typical notions and stereotypes regarding the difference between the roles allocated to men and women by society cannot be used as justification for the discrimination that the Service Regulations had latently brought forth. The judgement held so stating that even the discrimination on the basis of sexual orientation is rooted in justifying such discrimination to be due to the aberrations that the LGBT (Lesbian, Gay, Bisexual, Transgender) Community were to the stereotypical notions of Heteronormativity which cannot be permissible under Article 15 (1) of the Constitution of India. It was opined-
“A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex”
Therefore, it found the classification as promulgated by the Nergeesh Meerza case (and utilised by the Hon’ble Supreme Court on various occasions) between male and female employees on the roles they were supposed to conform to as discriminatory and violative of Article 14, Article 15 of the Constitution of India, thus overruling it. Therefore, if the impugned judgement had to be re-written after this most recent development, the lower retirement age, and the justifications given to defend that provision of the Service Regulations would be struck down as being unconstitutional and discriminatory. Moreover, the Hon’ble Supreme Court would not have been able to take a narrower view of Sexual Discrimination and limit the prerogative of the citizens of India to enforce their fundamental right of Article 15 just on the basis of furthering established roles.
 Air India Employees Service Regulations, Air India Corporation Act 1953,No. 27,Acts of Parliament,1953.
 INDIA CONST. art. 15 cl. 1.
 S. 16,Equal Remuneration Act, 1976, No. 25, Acts of Parliament, 1976.
 supra note 5.
 Lena Khan v. union of India AIR 1987 SC 1515.
 supra note 1.
 Air India Cabin Crew Association v. Yeshaswinee Merchant (2003) 6 SCC 277.
 supra note 2.
 Id. at para 313.
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ABOUT THE AUTHOR:
Shreesh Chadha is a 4th Year B.A. LL.B. (Hons.) student at Jindal Global Law School, Sonepat. He is a keen student of the law and hopes to pursue a career in litigation. His areas of interest include Criminal Law, Taxation Law, Civil Disputes and other Commercial Litigation.