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Gender Justice in Employment and in Profession
—JUSTICE NAGENDRA K. JAIN
In the report of 1994 Commission for Social Justice/Institute for Public Policy Research, London, it is stated thus:
“Work is central to our lives. Paid or unpaid, it is the way in which we meet needs, create wealth and distribute resources. It is a source of personal identity and individual fulfilment, social status and relationships.”
As you all know, women in the past have been discriminated in the field of employment. Some say that because women have been denied access to paid employment on the same terms as men, they have suffered far wider disadvantage than ‘simply’ the wage differentials.
In relation to the employment area, women have strongly raised their voice against gender discrimination, particularly, in the field of recruitment, promotion, wage rates for women and maternity rights.
The inclusion of women’s rights in the character of human rights is reflected in the passing of Convention on Elimination of All Forms of Discrimination Against Women in 1981 (called CEDAW). Along with this, recent judicial decisions in the area of employment and profession concerning women have also brought the gender issue to the center stage.
The main object of this lecture is to trace the development of law in matters involving gender issues in the field of employment and profession. There are two sets of cases in which sex discrimination was challenged before the Apex Court. There were cases where women challenged certain rules, regulations which prohibited employment of women. In another set of cases, we find the focus being on rules and regulations which treated women preferentially.
Gender Equality
Article 14 of the Constitution guarantees equality before law and equal protection under the law and it prohibits unreasonable classification. The Supreme Court has said that the principles underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within Indian territory or that the remedies should be made available to them irrespective of differences in circumstances. It only means that all persons similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another, if as regards the subject matter of the legislation, their position is substantially the same. (AIR 1970 SC 21).
Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex and place of birth. Article 16 is important for the discussion concerning sex discrimination in the matter of employment. For a long time women were discriminated in matters of employment.
In the past even judges did not concede that men and women were equal. This is well illustrated from the following observations of Justice Bradley of United States Supreme Court in Bradwell vs. Illinois:
“The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life....... The paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”
In 1961 United States Supreme court upheld a law placing women on the jury list only if they made a special request and this was because “a woman is till regarded as the center of home and family life.” (as put by Justice Harlan in Hoyt vs. Florida, 368 US 57).
In our country the Supreme Court by its interpretation of Articles 14, 15 and 16 has contemplated greatly to ensure substantive equality to the women in matters of employment and a new jurisprudence on gender justice itself has been evolved over the years. We shall now deal with some leading cases on the subject decided by the Supreme Court.
In C.B. Muthamma vs. Union of India—{(1979) 4 SCC 260} a senior Indian Foreign Service Officer Ms. Muthamma approached the Supreme Court in 1978 against gender inequality. She pointed out several rules in Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 which led to her being denied promotion to Cadre-I of the Indian Foreign Service. The said Rules provided that no married woman shall be entitled as of right to be appointed to the service. Under Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 a woman member of the Service was required to obtain permission of the government in writing before her marriage was solemnized. It further provided that at any time after the marriage, she could be required to resign if the government was satisfied that her family and domestic commitments were likely to come in the way of the due and efficient discharge of her duties as a member of the service.
The Supreme Court struck down the above rules on the ground that they violated fundamental right of women employees to equal treatment in matters of public employment. Justice Krishna Iyer, lamented thus:
“At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thralldom. Freedom is indivisible, so is justice. That our fonding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-à-vis half of India’s humanity, viz., our women, is a said reflection on the distance between Constitution in the book and law in action.”
Air India vs. Nergesh Meerza and Other—(1981) 4 SCC 335—This is a case of Air Hostesses claiming equality. Certain service conditions in Air India Regulations were found to be discriminatory by the Air Hostesses and it was contended before the Supreme Court that the Air India Regulations had made a provision that an Air Hostess could not get married before completing four years of service. The age of recruitment was 19 years and this meant that an Air Hostess could not get married till the age of 23 years. The regulations further provided that if she got married before completing four years of service, she had to resign and after reaching the age of 23 years if she continued her service as a married woman, then she had to resign on becoming pregnant. It was further provided that if an Air Hostess survives both the above filters, then she could continue to serve until she reaches the age of 35 years. The Air Hostesses challenged all these regulations on the ground of sex discrimination and that similar provisions did not apply to men employees.
The Supreme Court did not accept the contention of the Air Hostesses in so far as the first requirement that an Air Hostess should not marry before completion of four years of service is concerned. The Court observed that Article 14 forbids hostile discrimination but not reasonable classification. The said article applies where equals are treated differently without any reasonable basis and where the classes or categories of service are essentially different in purport and spirit e.g., where different scales of pay, service terms, leave etc., are introduced in different or dissimilar posts, Article 14 cannot be attracted. The Court held that Air Hostesses form a separate category and therefore the circumstances of (i) termination of service on first pregnancy, (ii) restriction on marriage within the first four years, and (iii) early retirement at 35 years do not violate Article 14 on the ground of discrimination.
However, in so far as the next requirement i.e., an Air Hostess to resign after becoming pregnant is concerned, the Supreme Court observed that the provision according to which the services of Air Hostesses would stand terminated on first pregnancy is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of article 14 of the Constitution. The Court observed that the said rule amounts to compelling the Hostesses not to have any children and thus interfere with and divert the ordinary course of human nature.
Cont....
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