Charu
Khurana & Others v. Union of India & Others
Writ Petition (Civil) No.78 of 2013
“The days of yore when women were treated as fragile, feeble, dependent
and subordinate to men, should have been a matter of history, but it has not
been so, as it seems.”[1]
Background of the Case
The petitioner in the present case is a
trained make- up artist and hair dresser, who had sought a membership card for the same, which was refused by the respondent
no. 5, i.e., the Association on the grounds that no female make- up artist has
ever been issued a membership card. The respondent stated that females are
given membership card for hair dressing only, whereas the job of make- up
artists is reserved for males.
The
present post is restricted in dealing with the gender discrimination part of
the judgment, while the Court had also discussed the domicile requirement in
securing the membership card.
Establishing Writ Jurisdiction over the
Association
While the
association was not a ‘state’ under the terms of Article 12, the Court
nevertheless looked into the validity of the bye- laws of the Association which
were certified by the Registrar of Trade Unions in exercise of the Statutory
power under the Trade Unions Act 1926. (Read this link to gather the flaws in this reasoning of the Court and the adverse implications of it)
I. Submission of the Association Defending Non-
Granting of Membership Card to Female Make- up Artists
The
Association justified their stance on the ground that if the female members
were given membership card for make- up artists also, then, it would become
impossible for the male members to get work, as there is a human tendency to
employ female make- up artists if they are available. In the association’s view
they have sought to give equal opportunity by reserving the field of hair- dressing
for females only, while allotting membership cards for make- up to males only.
II. Challenges Posed Against the Association’s
Stance with respect to Discrimination on the Basis of Gender
(a)
There is no reasonable
justification for the classification of not allowing women to be make- up
artists,
(b) Unless membership cards are issued, women would not be engaged as
make-up artist and thus causing a hazard in earning their livelihood.
Consequently,
it is contended on behalf of the petitioners that there is a violation of their
rights under Articles 14, 15, 19 (1) (g) and 21 of the Constitution of India.
III. Relevant Provisions
Ø Trade Union (TU) Act 1926
§ Section 21. Any person
who has attained the age of fifteen years may be a member of a registered Trade
Union subject to any rules of the Trade Union to the contrary, and may, subject
as aforesaid, enjoy all the rights of a member and execute all instruments and
give all acquittances necessary to be executed or given under the rules:
Ø Bye- Laws of the Association with Registration No. 1871
§ Clause 4. Membership: Membership of the
Association shall comprise of Make-up men, Costume men, and Hair Dressers
who were admitted as members by the Association & who continue to be
members and all those who shall be admitted hereafter under clauses 6 & 7
of the constitution of the Association including the membership in Family
Relief fund, provided he/she agrees & abide by the rules & sub-rules
that may form by the Association from time to time.
§ Clause 6. Admission of
New Members: Any person desiring to become the
member of the Association who has attained the age of majority of 18 and who
possess a good moral character shall send an application in prescribed form and
duly recommended by two members with its prescribed fees. A. Applicant should have
been a resident of Maharashtra at least for 5 years; B. Son or Daughter of members who have
completed 15 years of membership shall be eligible to be enrolled as members of
the Association, provided they fulfil other conditions relating to age and
domicile status of 5 years in the State of Maharashtra.
IV. Judgment Holding the Stance of the
Association Wrong
IVa. For Violating the Main Statute
The Court
held that the Clause 4 violates the § 21 of the TU Act on the ground that the
Act does not distinguish between men and women.
IVb. For Violating the Constitutional Norms
The Court
here firstly held that the Right to
livelihood of the women artists is getting adversely affected since it
intervenes with her capacity to earn her livelihood, consequently it is
breaching Article 21 of the Constitution.
Then, by using principles
of gender equity and justice as envisaged in:
(i)
International Conventions (incorporated or adopted through judicial interpretation in cases
like Vishaka v. State of Rajasthan),
(ii)
directive principles of
state policy (these principles have been used by
the Supreme Court to interpret the Fundamental Rights) under Article 39 (a) where
the state should try that men and women have an equal right to an adequate
means of livelihood, and Article 38 where the State should strive to promote
the welfare of the people by securing and protecting as effectively as it may a
social order in which justice, social, economic and political, shall inform all
the institutions of the national life, along with Article 37 which imposes an
obligation on the State to apply these principles in making laws,
(iii)
fundamental duties where a collective responsibility is imposed on the State (through
interpretation by the Court) to develop a scientific temper, thereby, provide
opportunities to people and not to curtail it,
the Court held
that there is a violation of the constitutional mandate and consequently
quashed the clause 4 of the bye- laws.
V. Analyses
Firstly, the part where the Court finds the impugned provision violative of § 21 of the main Act itself, it is submitted is completely erroneous. The Court opined that § 21 does not contemplate any difference between men and women when it states 'any person above the age of 15 yrs may become a member', therefore, the impugned provision is violative of the main Act. The problem is that § 21 itself allows for a subjecting clause, when it allows the Society to make Rules. § 21 states that 'any person above the age of 15 yrs may become a member of a Registered Society subject to any rules of the Trade Union to the contrary...'. Clearly, § 21 itself allowed for such leeway to Rule making authority.
In my opinion the Court though reached a right outcome, however, it could have struck down the provision simply on the basis of violating Article 14 and 15 of the Constitution of India, once it was comfortable in its reasoning that the associations' rules are amenable to be tested at the Threshold of Fundamental Rights. Instead of citing numerous precedents on Right to life including right to livelihood, quoting International Conventions unnecessarily, the Court could have by employing the Reasonable Classification test, reached the same conclusion, on a rather (in my opinion) better legally and logically sound reasoning.
In my opinion the Court though reached a right outcome, however, it could have struck down the provision simply on the basis of violating Article 14 and 15 of the Constitution of India, once it was comfortable in its reasoning that the associations' rules are amenable to be tested at the Threshold of Fundamental Rights. Instead of citing numerous precedents on Right to life including right to livelihood, quoting International Conventions unnecessarily, the Court could have by employing the Reasonable Classification test, reached the same conclusion, on a rather (in my opinion) better legally and logically sound reasoning.
The test
of reasonable classification as employed in the case of State of West Bengal v. Anwar Ali Sarkar,[2]
provides for a three- step checking mechanism to justify any differential
treatment. In order to justify any such treatment, firstly, it has to be shown that there is a classification done on
some intelligent and reasonable grounds, secondly,
such classification should be done with a view to achieve an object and lastly, the classification should have a
nexus with the object.
In the
present case, the object seems to be to provide livelihood for men. But the
classification between men and women on the ground that women if allowed to
become make- up artists would lead to deprivation of men from such employment on
account of some notion of human tendency. The very reading of the basis of this
classification is enough for one to see the unreasonability involved in the
stand of the Association. The job of a make- up artist does not entail that
only women are suitable at it or better than men. There is no empirical data to
justify this classification.
Therefore,
such stance of the Association clearly falls foul of the equal protection of
the law under Article 14 of the Constitution. As it can be seen, the Court
could have held the Association’s conduct to be unconstitutional on this ground
only (apart from holding the bye- laws to be violative of the main Act itself),
rather than going into the sexual harassment of women or right to livelihood of
women or fundamental duties unwarrantedly.
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