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Air India, a state-owned corporation, allowed female flight attendants to retire in three situations: (1) when they turned 35, (2) when they married, or (3) when they had their first child. The laws were overturned by the Court, which ruled that they represented official arbitrariness and hostile prejudice.
Facts
Regulations 46 and 47 of the Air India Employees Service Regulations[1] were challenged in this situation[2]. With the challenge being posed on the grounds that the above regulation created a significant degree of disparity between male and female employees on a variety of grounds such as promotional avenues, differential retirement ages, conditions pertaining to termination of Air hostesses services in cases of pregnancy or marriage (retirement age for them was 35 years as opposed to 58 for their “maternal” counterparts), and conditions pertaining to termination of Air hostesses services in cases of pregnancy or marriage (retirement age for them A more practical issue concerned the Managing Director’s discretionary powers under Regulation 47, which enabled him to raise the retirement age at his discretion. The petitioners contend that this is an arbitrary aspect.
Procedural History
The case was taken before the Supreme Court in the form of a writ petition. With previous versions of the case having been brought before the National Industrial Tribunals (the Khosla Tribunal in 1965 and the Mahesh Tribunal in 1972),
Rule
The India Constitution, Article 14
Before the constitution, there is equality. Inside India’s borders, the state shall not grant anybody equality before the law or equal treatment under the law. Discrimination on the basis of religion, race, caste, sex, or place of birth is prohibited.
The India Constitution, Article 15
Article 15(1) of the Indian constitution prohibits the state from discriminating against any person.
The State shall not discriminate against any person solely on the basis of religion, colour, caste, sex, birthplace, or any combination of these factors.
Regulation 46 Air India Employees Service Regulations:
Equality of Opportunity in Public Jobs
Age at When You Will Retire: Except as provided in sub-regulation (ii) hereof, an employee shall retire from the Corporation’s service when he or she reaches the age of 58 years, unless the following circumstances apply: only in terms of religion, ethnicity, caste, and gender
An Air Hostess when she reaches the age of 35, or when she marries within four years of service, or when she has her first child, whichever comes first.
Extension of Service Regulation 47 of the Air India Employees Service Regulations.
Notwithstanding everything in Regulation 46, any employee’s services may be extended by one year at a time after the age of retirement, at the discretion of the Managing Director, but only if the employee is found medically fit, for a total period of not more than two years, except in the case of Air Hostesses and Receptionists, where the period may be ten years and five years respectively.
Issues
(i) Are Regulations 46 and 47 ultra vires in full or in part because they violate Articles 14, 15, and 16 of the Indian Constitution?
(ii) Should the allocation of discretionary powers enumerated in Regulation 47 be considered excessive?
Analysis
The judgement starts on a narrative note, outlining the origins of Air India Corporation and Indian Airlines, as well as the question’s relation to the Khosla and Mahesh Awards of 1965 and 1972, respectively. In response to the issue of whether the rules are in violation of Article 14, the court claims that Article 14 only prohibits aggressive prejudice, not fair classification. To support this argument, the court cites a slew of recent rulings that say that treating equals and unequals differently would not constitute hostile discrimination. As a result, the laws in question do not violate Article 14 in full or in part.
The judgments echoes this ideologue, stating that where members of a particular class are treated differently in the public interest to advance and boost members of backward classes due to their special attributes, qualities, mode of recruitment, and the like, such a classification would not amount to discrimination under Article 14. Following that, the court attempts to provide an illustrative, but not exhaustive, set of rules for determining if the Air Hostesses and Air Flight Pursuers forged different groups and, by default, determining if Article 14 was violated. The Court views them as two separate groups based on their promotional opportunities, starting wages, and entry-level qualifications, and thus rejects the argument that Article 14 was violated on the grounds of fair and intelligible differences.
The Court claims that the discrimination between Air India and Indian Airlines is due to Air India’s compliance with UK rules. Furthermore, the Court considers a secondary line of reasoning that these provisions are based on an arbitrary and discriminatory basis (by classifying people based on their gender) and, as a result, are ultra vires to Article 14.
To explore this point, the Court points out that although Article 16(2) purports to ban discrimination solely on the basis of sex, it never forbids the state from discriminating on the basis of sex and other factors (as asserted in the case of Yusuf Abdul Aziz v. The State of Bombay and Husseinbhoy Laljee [1954] SCR 930[1]) [3]. The Court denies the breach of Article 16 on this point.
However, the case law or the court’s decision by expansion never goes into detail on what the extra criterion was. On the issue of cessation of facilities in the event of a first pregnancy, the court vigorously opposes the respondent’s contention that women post-childbirth tend to abandon the job or that their husbands refuse to allow them to serve, necessitating a lower retirement age for them. The Court concludes by noting that organisations like Air India must be prepared at all times for absences that could occur due to death/infirmity, among other things. As for the arguments advanced by the respondents, those are situations that can occur even in the absence of children, so these claims are presumptively false. Instead, the Court calls for sweeping changes to the maternity provision, such as the introduction of a retirement criterion based on the arrival of a third child in place of the incumbent clause. Its justification is based on a public health theory. As a result, under Article 14, the said legislation element is considered arbitrary. However, since the court reflects Article 14 on grounds of utility, public welfare, and other considerations, a comparable stand of statutory infirmity and arbitrariness is not applicable to the matter of marriage within four years of service of an air hostess.
On the issue of whether the managing director’s discretionary powers are equivalent to undue delegation The Court responds in the affirmative, stating that by giving the managing director unrestricted and unguided authority over granting an extension, the true purpose of the regulation makers is defeated. Because of the terms “at the choice of,” the managing director has much too much authority, which could contribute to unequal practises.
Other factors, such as the lack of a mechanism to challenge the Managing Director’s decision not to give the air hostess an extension or the lack of a mechanism involving the conveyance of explanations for the failure to grant an extension, only reinforce the above assertion. For such a broad and sweeping scope of authority, it is obvious that Regulation 47 is in violation of Article 14 due to undue delegation.
Summary of the Judgement and Arguments Advanced
The Court ignored the fact that AFPs and AHs were separate groups with different terms of service. The Court ignored the fact that AFPs and AHs were separate groups with different terms of service. This argument is blatantly contradictory. The Court made three errors in holding that the Government’s notification pursuant to Section 16 of the Equal Remuneration Act raised the question of whether the Legislation discriminated on the basis of sex: first, the Court expanded the scope of Section 16 to the Constitution; second, the Government’s statement on the question of constitutional rights was regarded as constitutional; and third, the Government’s statement on the question of constitutional rights was regarded as constitutional.
Regardless of the Government’s notification under Section 16 of the ERA, the Court made no attempt to show that Articles 15(1) and 16(2) were not applicable to the circumstances at hand. The Court’s unreasonable investigation wound up perpetuating and endorsing the same stereotypes that the anti-discrimination act was intended to eliminate. Women’s roles as caregivers and “family planning boats” were among them.
Critique
While the aforementioned judgement is an obvious improvement on the ruling of the Khosla Tribunal (1965) in terms of the age criteria being equally applied due to factors such as the attractiveness of young air hostesses being an effective tool to deal with passengers, the aforementioned judgement is an obvious improvement on the ruling of the Khosla Tribunal (1965) in terms of the age criterion being fairly imposed due to issues such as the attractiveness of young air hostesses being an effective tool to deal with. However, it also leaves open a slew of concerns on a variety of grounds that have been addressed in subsequent sex discrimination-related litigations such as MacKinnon Mackenzie v. Audrey d’Costa (1987)[4] and Rajendra Grover v. Union Of India.(2007)[5], with mixed results.
Leaving aside the apparent overtures of a sexist verdict, which seem to be strewn in this decision, there seem to be deep-seated issues around the discrepancy between administrative law and the constitution in this case. For instance, instead of questioning a sex-based designation as being violative of Art.14,15,16, the Court uses reasoning to debunk the infringement of Article 14. Instead, it attempts to distinguish between the sexes by displaying ancillary characteristics such as qualification, salary, and other distinguishing characteristics. The applicability of statutory recourse to an administrative rule is thereby vitiated by establishing a twisted interpretation of fair classification.
Another anomaly occurs where the matter of fair classification/intelligible difference is extended to the distinction made on the grounds of sex when the issue of Article 15 and 16 violations arises. Surprisingly, the decision never attempts to substantiate the alternative criteria that is used alongside the sex distinction to refute the claim of a breach of Article 16. This decision has a conspicuous absence in this regard. Even as the decision tries to rely on American cases, this line of convoluted logic is clear. Cases like Mary Ann Turner v. Department of Employment Security, 423 U.S. 44[6], and Frontiero v. Richardson, 411 U.S. 677[7], with rulings that were diametrically opposed to the issue at hand.
To return to my earlier argument, the sexist aspect of the decision is brought into sharp focus on many occasions. For example, as the court opposes the one-child basis for air hostess retirement and instead calls for an extension that adds the alternative of retiring after the birth of the third child. Although the court gave this reasoning a deified tone by infusing it with a public health foundation, I believe it merely serves to reassert a binary notion about gender roles.
References:
[1] Air India Employees Service Regulations, Regulations 46 and 47.
[2] 1981 AIR 1829.
[3] (1954) SCR 930 [1].
[4] 1987 AIR 1281.
[5] Rajendra Grover And Ors. vs Air India Ltd. And Ors. on 8 October, 2007.
[6] 423 U.S. 44.
[7] 411 U.S. 677.
