Nergesh Meerza & Ors. 1981 AIR 1829
Gender discrimination is one of the evils of most of the civilized society. However, there is a global development and most of the societies have reformed themselves to attain modernity. But there is still a bug of discrimination on the basis of sex in the minds of people. People have a partial view against other people. They gratify in-group and have a bias view of the outgroup. Since, this prejudice has been rooted from the ancient times, people just don’t adapt this expression of equality and impartiality easily. Discrimination exists because of various factors such as geographical differences, cultural differences, gender, linguistics, etc. Gender discrimination is unequal treatment of a person or group of persons based on their gender or sex.
Gender inequality or unequal treatment has always been a controversial issue in Indian society. This not only happens in social realm but also at workplace or any other official institution. Whether it is against a man or woman, we see discrimination still exists in our nation. The most basic one is the female gender discrimination. There are still some strata of society where birth of a girl child is not welcomed or even she is killed in the foetus itself, so we can see that the discrimination starts even before the girl child is born. Since, there is a patriarchal society so women are always considered inferior to men. They are dominated and suppressed. They can’t raise their voice regarding any of their interests. They experience restrictions, lack of freedom and mobility, harassment and violence and due to this they always have less opportunity to choose their way of living. Because of such stereotype people girls and women are less valued and often have a lower social status. Apart from the social discrimination there are many other kinds of inequality which a woman has to face like discrimination in education, in employment, in pay scale, sexual harassment, or because of pregnancy.
Although there are various laws made to curb this growing menace but the key point is the implementation. Making awareness and spreading the information regarding the rights of the women can definitely boost the quest to make a gender unbiased society, where every person is treated equally on the basis of every aspect providing the right to freedom and liberty.
Now if we talk about gender inequality at the workplace, it is not different from the social one. This also treats a person differently just because of sex or gender. Some examples of unequal treatment at work place can be; not being hired by the employer, being evaluated more harshly or with criticism, being paid less than a person of different sex who is similarly or less qualified or at the same position than you, being denied for promotion or rise in payment or training or any other opportunity, being insulted or hearing hostile remarks about people of certain sex or gender, or being subject to unwelcome sexual favours, being rejected or given fewer tasks because of pregnancy.
So, we can see that no arena is left for women where she does not suffer. In one or the other way she is treated inferior to men and thus discriminated. One such case describing the instance of gender discrimination and inequality is Air India v. Nergesh Meerza & Ors.
Facts of the Case: –
So, starting from the very beginning there were two Corporations known as Indian Airlines and Air India International. Accordingly, we can say that there formed two corporations which are A.I. i.e., Air India Cabin Crew and IAC i.e., Indian Airlines Corporation Cabin Crew. The two corporations were part of the same organisation setup by the 1953 Act. Also, the dispute with respect to A.I. was referred to Justice Khosla in Khosla Tribunal and simultaneously, the dispute between the I.A.C. and its employees was referred to Justice Mahesh Chandra in Mahesh Tribunal.
Now, according to the facts, the appellant challenged the service regulation which required the air hostesses were required to retire on their marriage, first pregnancy, or the age of 35, whichever happens earlier.
The Airlines authorities’ submissions emphasized on the importance of physical appearance, youth, glamour, etc. as the essential qualities for inflight service. In the early stages, the corporation decided that the airhostesses were to be retiring at the age of 50 with a choice of ground duties. This was later on challenged as being violative of the Articles 14, 15, and 16 of the Constitution of India and certain provisions of the Equal Remuneration and Air Corporation Acts, in comparison to male employees who were to retire at the age of 58.
On the basis of proposals filed, an order was passed by the Bombay High Court which lays special considerations which are not gender biased and that both the male and female cadres will be given an option to choose retirement at the age of 50 or 58. However, different associations representing employees including airhostesses challenged the judgement of The High Court marking that this will adversely affect their seniority and promotional possibility which are only governed by agreements. Hence, a writ petition was filed in the honourable Supreme Court which challenged the regulations 46 and 47 of the Air India Employees Service Regulation, to decide for these regulations which created an essential degree of disparity between male and female on various grounds such as promotional approach, difference in retirement ages, termination in cases of pregnancy or marriage.
Case Judgement: –
Supreme Court sets aside the ruling and order passed by the High Court by criticizing it for adopting a strange procedure and method unknown to law. Supreme Court views that High Court has eluded the binding ration of this case and overlooked the settlements in operation. Furthermore, the court on the aspect of termination of services on the stage of first pregnancy ardently rejects the respondent’s contention that women after the child’s birth seem to leave job or their husband do not allow them to work and therefore making the it essential to have a lower age limit for their retirement, also for instance these can take place in the absence of children, thus these assertions are prima facie baseless.
The Supreme Court also recommends for the amendments to be made to the said pregnancy clause wherein the criterion of retirement upon birth of third child should be made in place of the existing clause, which is based on the reasoning of public health principle. Now in its judgement Supreme Court describes about the various articles which are referred to in this case. These are as follows:
Article 14 of the Constitution of India
According to this, every person is equal before law. The state shall not deny to any person equality before law.
Article 15(1) of The Constitution of India
According to this article, the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them.
Article 16 of The Constitution of India
This article talks about equality of opportunity in matters of public employment. Every person shall get equal chance in official employment.
Regulation 46 Air India Employees Service Regulations.
In this regulation, the provision of retirement is given. It says that an employee shall retire from the service of the corporation after completion of age of 58 years. It also describes an exception that an Air Hostess shall retire earlier if she has attained the age of 35 years or on marriage if it takes place within four years of service or on pregnancy, whichever occurs earlier.
Regulation 47 Of Air India Employees Service Regulations.
This regulation talks about the extension of service of the employees and that the service of the employee can be extended by one year at the option of the Managing Director but should not exceed two years.
The Supreme court hence held that the clauses regarding the retirement and pregnancy were immoral and unconstitutional and thus therefore ordered them to be struck down. Also, the powers granted by the Regulation 47 to the Managing Director are excessive and it could lead to possible cases of discriminatory practice. Thus, it says that the ambit of powers of Managing Director is so wide that it is violative of Article 14 by suffering from excessive delegation.
Case Analysis: –
Gender discrimination hampers the overall development of a women. There are already plenty of patriarchal banality on women desires for a stress free life at home. Now, if we see the facts of this case it says the retirement age of airhostesses was kept as 35 years, because women till that age look youthful and glamourous. This was indeed a wrong assumption. And if we talk about pregnancy or marriage, the retirement for this is unjustified and violates the fundamental rights of a women which are Article 14, 5 and 16.
Now, the issues raised in this are whether the Regulation are violative of Articles 14, 15 and 16 of Indian Constitution? Or can we say on that part that it is ultra vires?
And the second issue was whether the discretionary powers given under Regulation 47 be deemed as excessive delegation?
So, if we analyse the judgement given by the honourable Supreme Court it is clear that of course the regulation clause was violative of the fundamental rights of women as enumerated under Article 14,15 and 16 of the Constitution of India, it thus orders them to be struck down. Also, by similar fate regulation 47 was also found to be under glitches as it provided immense powers to the Managing Director, hence needed to be controlled.
Hence, lastly we recognize that there is an urgent need to curb this evil of gender inequality to make all people avail their rights and opportunities equally. Men and women are equal and societies that follow this norm lead a peaceful life. Gender equality is also a human right and everyone should be benefitted from this.