CASE COMMENTARY AIR INDIA VS NERGESH MEERZA by - Nivedita Rajesh

CASE COMMENTARY

AIR INDIA VS NERGESH MEERZA

Authored by - Nivedita Rajesh

Court: Supreme Court

Citation: 1981 AIR 1829

Bench: J. Faizal Ali, J. Syed Murtaza & J. A. Vardarajan

DATE OF JUDGMENT: 28/08/1981

ABSTRACT

This case was one of the first landmark cases in the Indian equality jurisprudence concerning sex discrimination in the working phenomenon. The judgement of this case distinguished between sex and gender. Then later which it was held that the Constitution only aims to protect the former. This was achieved by interpreting the word "only" as "only and only on the ground of sex" as it occurs in Article 15(1). The Court constrained the scope of Article 15's applicability through such an interpretation. By seeing sex discrimination separately from other types of prejudice women experience, such as age, marital status, and pregnancy, the court effectively extended the reach of Article 15(1) to include intersectional discrimination. The same led to an unjust and incorrect limitation of the scope of the right to equality and non-discrimination.

FACTS

1. In the beginning, Regulations 46 and 47 of the Air India Employees Service Regulations appeared to create some disparity between male [Air Flight Pursers (AFPs)] and female [Air Hostesses (AHs)], and there was also some debate regarding differences between AHs working for Indian Airlines Corporation (I.A.C.) and Air India (A.I.), the domestic and international organisations, respectively.

1. In accordance with Regulation 46, there were differences between AFPs and AHs in terms of the opportunities for promotion, retirement ages, and the circumstances under which AHs' employment might be ended due to marriage and childbirth.

1. The retirement age for AHs was 35 years, but it was 58 years for AFPs, who also had an AH's service would be cancelled if she got married during the first four years of her service or became pregnant for the first time.

1.  Regulation 47 gave the Managing Director the option or authority to extend the retirement at his discretion.

ISSUES

1. Whether the age of retirement of AHs as per Regulation 46 is reasonable (checking validity as per articles 14,15 and 16 of the Indian Constitution)?

2.   Whether the grounds of termination of service of an AH on marriage within the first four years of service and on first pregnancy, are valid as per the Indian Constitution (checking its Constitutional validity)?

3.  Whether the discretionary power vested with the Managing Director to extend the retirement of an employee is deemed to be excessive delegation?

LEGAL PROVISIONS

1. THE CONSTITUTION OF INDIA
2. MATERNITY BENEFIT ACT, 1961
3. AIR INDIA EMPLOYEES SERVICE REGULATIONS

RULES

Article 14 of The CONSTITUTION OF INDIA

Article 15(1) of The CONSTITUTION OF INDIA

Article 16 of The CONSTITUTION OF INDIA

Regulation 46 Air India Employees Service Regulations

Regulation 47 of Air India Employees Service Regulations

CRITIQUE

This case commentary establishes a detailed orientation of the judgement and the requirements for arriving at such a conclusion.

Retirement Age Condition

According to Regulation 47, Air Hostesses must retire at the age of 35, with the Managing Director having the exclusive authority to extend the retirement age by up to ten years. The rule was based on the erroneous presumption that "young and attractive" women are better suited for the demanding job of an air hostess.

It is an unfounded assumption because there isn't any proof that an Air Hostess loses competence or performance beyond age 35 or, for that matter, after age 45. The retirement age regulation therefore contravenes Articles 15(1), which forbids discrimination against any citizen based solely on race, caste, sex, place of birth, residence, or any other factor, and 16(2), which prohibits discrimination in public employment based solely on race, caste, sex, descent, place of birth, residence, or any other factor. The Court properly determined that it is supra vires because the Managing Director was given a significant amount of discretionary power without any standard restraining such power. This legislation therefore violated Article 14.

Condition for Marriage

The Air Hostesses' job with Air India would be terminated if they got married within their first four years of employment, according to the company's service regulations. They used economic arguments to support the relevant regulation. They argued that they invest a lot of money in educating their Air Hostesses, and that the length of time the Air Hostesses provide service directly affects how much money they can recoup from those costs.

The Regulation is based on the notion that married women are unfit workers or that women are obligated to resign from their occupations after getting married. This justification is flawed because Air India ends the employment of Air Hostesses upon marriage, if it occurs within four years of employment, rather than just keeping them on to recover the cost of training.

Additionally, it unintentionally supports the notion that women lack a free will and are instead controlled by their spouses or bosses. In the current instance, the petitioners correctly described this Regulation as an "outrage on the dignity" of women. The fact that this condition is limiting in nature adds to its problem-causing characteristics. It robs a woman of her freedom to choose her own marriage date by tying it to her professional obligations. Despondently, the Court has reinforced this autonomy-robbing provision by upholding it on the grounds that it enhances "employee health," advances "family planning programmes," and enables women to "fully mature so that there is every chance of such a marriage proving a success, all things being equal."

The provision is, however, arbitrary and without foundation. In that it claims responsibility for protecting women's health, it is both patronising and patriarchal in nature.

Conditional aspect in Pregnancy

Additionally, according to the Service Regulations, Air Hostesses must leave their jobs after their first pregnancy.[1] The Court determined that it was unlawful since it was arbitrary and unreasonable, and that it consequently violated Article 14. While it is true that the Regulation is unconstitutional, it must be noted that this is not simply because it is unreasonable but also because Articles 15(1) and 16(2) of the Regulation unfairly discriminate based on sex.

The Air Hostess Association's pregnancy clause is based on the idea that being a mother makes Air Hostesses undesirable. There is no proof or authority to back up the claim that giving birth has a negative impact on a woman's capacity to perform professionally.

Fazal Ali J. acknowledged that the pregnancy condition in the present case "amounts to compelling the impoverished AH not to have any children and thereby interferes with and diverts the ordinary flow of human nature." Pregnancy-related termination from employment, he continued, "is not only a callous and cruel act, but also an open insult to Indian women, the most sacred and prized institution." But there are serious problems with this viewpoint.

OBSERVATION BY COURT

According to Article 15(1) of the Indian Constitution, "The State shall not discriminate against any person solely on grounds of religion, race, caste, sex, or place of birth." While putting emphasis on the word "only," Indian courts have understood it to mean that only discrimination based on a single ground is prohibited by Article 15.[2] In Dattatraya Motiram v. State of Bombay, the Bombay High Court ruled that:

“If there is a discrimination in favour of a particular sex, that discrimination would be permissible provided it is not only on the ground of sex, or, in other words, the classification on the ground of sex is permissible provided that classification is the result of other considerations.”[3]

Nergesh Meerza continued the habit of interpreting Article 15(1) incorrectly. This is due to the placement of the word "on grounds only of" rather than "only on grounds of". It is argued that the use of "only" therein is to emphasise the inappropriateness of those grounds as the basis of discrimination. The Court did not raise a concern about the methodology used to allocate "other considerations" inequitably.

The petitioners argued that the Court of Appeal's decision in the case of Air Hostesses versus Air Flight Pursuers was wrong and amounted to discrimination based on sex. The petitioners correctly pointed out that the "other reasons" justification was a smokescreen used to support the sex-based inequalities.

The concurring judgement by Chandrachud J. in Navtej Singh Johar v. Union of India rejects the interpretation of "only" put out in cases like Nergesh Meerza because it is a "formalist construction of Article 15" that would make the "constitutional protection against discrimination worthless." In contrast to this precedent, the SC ruled that these cases would fall under the definition of discrimination based only on sex if the "other considerations" being listed are stereotypes of sex or variables that have a different effect on different sexes. The SC noted that assumptions regarding socially given gender norms cannot be utilised to argue that the discrimination was not primarily sex-based, citing Anuj Garg v. Hotel Association of India. The Supreme Court (SC) for the first time unequivocally ruled that indirect discrimination is against the Constitution in the case of Lt. Col. Nitisha v. Union of India. According to Chandrachud J., indirect discrimination as well as systemic discrimination should be considered by the Constitution because it is committed to the idea of substantive equality. Additionally, he supported the Fraser test that the Canadian Supreme Court had developed. The two-pronged test's hypothesis was that:

The courts should first determine whether the challenged regulation unfairly disadvantages a particular group and whether the law is reinforcing, maintaining, or even worsening that disadvantage.

In addition, the Canadian SC noted that courts needed to pay closer attention to prevent the spread of prejudices and generalisations that were the original source of discrimination.[4] Most importantly, it was highlighted that structural remedies are frequently necessary for structural discrimination.

HOLDING AND JUDGEMENT BY COURT

The court ordered the repeal after ruling that the provisions relating to pregnancy and retirement were unlawful. Regulation 47 also met a similar demise since it was discovered that there were too many powers delegated to it without any appropriate rules to govern them. The phrase "at the discretion of" gives the managing director more power than is necessary, which could result in instances of discriminatory conduct. Other factors, such as the lack of a clause allowing the air hostess to challenge the Managing Director's decision to deny an extension or the absence of a system requiring the communication of reasons for the denial, only serve to corroborate the assertion. Due to the vast and extended scope of the authorities, it is therefore apparent and reasonable to state that Regulation 47 violates Article 14 for excessive delegation.

AUTHOR’S REASONING AND ANALYSIS

Gender prejudice impedes a woman's total growth. The patriarchal banality around women's demands for a stress-free home life is already rather prevalent. The retirement age for airhostesses was preserved at 35 years old in this case, according to the facts, because ladies up until that age still have a glamorous and young appearance. This was a false assumption, for sure. And if we discuss pregnancy or marriage, retirement for these reasons is unjustified and in violation of Articles 14, 5, and 16 of the Constitution, which protect the fundamental rights of women. Even considering the current scenario, women are not given equal treatment as that of men and are still mistreated and given unequal opportunities. Some of the examples can be visible in the work place only like in companies where the women are not given equal pay to that of men and are not given a hike or a slight increase in their salary when they work overtime as well. Adding to this, even in the film industry the men (actors) are given always considered superior than women (actresses) and are once again given a higher salary compared to women. What can one we do to curb this injustice and partiality among gender? One main thing that we all people can do is to create awareness and fabricate knowledge among all the people in the society and make each person understand the need for a strict and stringent law with due and proper governance and adherence. Moreover, it is very important to scrutinise the law makers and the law bodies to pass any such order, decree or judgement or any legislation and to make sure it undergoes due care and caution before it becomes applicable. Since, equal opportunities and treatment are two main important factors and omission of the same is a sure “NO” as it can create huge issues and scandals worldwide. Finally, we acknowledge the critical need to address the evil of gender inequality in order to ensure that everyone has an equal opportunity to benefit from rights and opportunities. Men and women are equal, and peaceful cultures are those that uphold this rule. In addition to being a basic right, gender equality should benefit everyone.

CONCLUSION

In addition to creating a harmful precedent, the Nergesh Meerza ruling clearly upheld gendered norms and prejudices. Furthermore, because of its narrow and superficial application of the Equality Code, it effectively prevented indirect and intersectional discrimination from being covered by constitutional protection.

Despite the significant advancements in Indian equality law since Nergesh Meerza, including the courts' discussion of substantive equality issues and their application of the Constitution's spirit and content, Nergesh Meerza has not yet been expressly overruled. Considering the precedent judgements and the supporting case laws cited above, we can arrive at a conclusion that no one should be discriminated by way of sex or gender and should be treated equally and justly in any workplace they work. They should feel the positive ramifications and healthy environment to sustain in the workplace without being severely affected and mistreated. Nergesh Meerza is still important considering legal precedent about the issue of equality and non-discrimination. There is a pressing need to reconsider the legitimacy of the decision because the judgement is with ingrained patriarchal attitudes and sets a risky precedent.

[1] Atrey, S. and Pillai, G., 2021. A feminist rewriting of Air India v Nergesh Meerza AIR 1981 SC 1829: proposal for a test of discrimination under Article 15 (1). Indian Law Review, 5(3), pp.338-357.

[2]  Sri Mahadeb Jiew v. Dr. B.B. Sen AIR 1951 Cal 563.

[3] Dattatraya Motiram More v. State of Bombay AIR 1953 Bom 311.

[4] Hamilton, J.W., 2021. Cautious Optimism: Fraser v Canada (Attorney General). Const. F., 30, p.1.