Air India vs Nargesh Mirza was only the first salvo in a legal battle that was to last thirty more years. After losing in the Supreme Court, the air hostesses took their battle to the political arena: in 1989, they petitioned the Lok Sabha against the discrimination in retirement ages and other service conditions. In response to the recommendations of the Petition Committee, the Central Government issued a direction to the Air india, requiring them to allow both male and female cabin crew to serve until the age of 58. After some resistance from Air India, the government clarified that while the retirement age for both men and women was now 58, air hostesses could be given “suitable alternate jobs on the ground” after they had crossed the age of 35. Accordingly, in 1990, Air India issued a circular stating that air hostesses who had attained the age of 45 would be given ground employment. In 1993, this was extended to 50, subject to tests for medical fitness for flying duties.

Soon afterwards, through legislation, Air India and Indian Airlines became two separate entities. Air India (now a new company) entered into an agreement with the Air India Cabin Crew Association in March 1995. According to this agreement, there would be complete interchangeability of functions between male and female cabin crew members for new entrants to the service; however, for all recruits who had joined before 1997, the old policies would apply. This agreement was enshrined in a formal settlement in June 1997, where it was also clarified that all previous settlements and agreements, entered into between Air India in is previous avatar and its employees, would continue to hold where applicable.

In accordance with the new settlement, a revised promotion policy for cabin crew was brought into force the same month. At this point, fifty-three Air Hostesses, most of whom were nearing the age of 50, formed an Association (Air India Air Hostesses Association), and filed a petition before the National Industrial Tribunal, asking for a merger of the cadres, including for recruits who had joined before 1997. Interestingly, this claim was resisted by other Air Hostesses (a majority, in fact), who stated that they wished to retain their right to early retirement (and, consequently, accelerated seniority), and therefore, to continue to be treated as a separate cadre. The Tribunal rejected the petition for merger. Accordingly, a writ petition was filed in the Bombay High Court.

Before the High Court, the Air India Cabin Crew Association asked to be impleaded as a party, but the High Court only allowed them to file an intervention application (this fact is important, because it seemed to weigh significantly with the Supreme Court; we shall return to it later in this essay). It was argued by Air India and the AICCA (as intervenor), that the interchangeability of jobs between male and female cabin crew was applicable only after 1997; it was a policy decision, and did not imply the pre-existing position was discriminatory. The High Court, however, was not convinced; after some prodding from Justice Shah, Air India submitted a proposal for the merging of cadres. According to the proposal, the male and female cadres would be merged, and service conditions would be equalised. A corollary of this was that female air hostesses would lose the accelerated promotions and higher allowances that they were entitled to by virtue of their early retirement.

The Air India Cabin Crew Association approached the Supreme Court. It claimed to be the only recognised union entitled to represent the cabin crew (with 684 air hostesses out of a total of 1138 being a part of it), and argued that the 53 air hostesses who had claimed parity (and were working in executive posts) were “unmindful of the interest[s] of the larger number of air hostesses who are of the workmen category and have agreed for an early retirement age.”

The Supreme Court handed down its judgment in 2003, in a case called Air India Cabin Crew Association vs Yashaswinee Merchant, agreeing with the claims of the Association. It began by noting that the correct test for determining whether there was discrimination “on grounds” of sex was the “but-for” test: i.e., the question that needed to be asked was whether, but for his/her sex, an individual had been disadvantaged. Notice that the but-for test makes no mention of the discriminator’s reason – but in the very same paragraph, the Court undid its own analysis by stating that “women [cannot] be deliberately selected for less favourable treatment because of their sex.” The use of the word “deliberately” was entirely unnecessary, because it fixes the locus of discrimination within the conscious mental state of the discriminator, which is something that is in no way required by the but-for test.

In any event, the Court then reiterated the Nargesh Mirza holding, stating that on the “but-for” test, it had been found that because air hostesses and air flight pursers formed separate cadres, there was no discrimination on grounds of sex. The problems with this analysis have been explained in detail in a previous essay, and need no repetition. The Court then went on to observe, however:

“The constitutional prohibition to the State not to discriminate citizens only on sex, however, does not prohibit a special treatment to the women in employment on their own demand. The terms and conditions of their service have been fixed through negotiations and resultant agreements, settlement and awards made from time to time in the course of industrial adjudication. Where terms and conditions are fixed through collective bargaining as a comprehensive package deal in the course of industrial adjudication and terms of service and retirement age are fixed under agreements, settlements or awards, the same cannot be termed as unfavourable treatment meted out to the women workers only on basis of their sex and one or the other alone tinkered so as to retain the beneficial terms dehors other offered as part of a package deal. The twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour.”

First of all, the Court’s recourse to Article 15(3) is strange. If the Court had already decided to follow Nargesh Mirza on the point that Articles 15 and 16 were entirely inapplicable to the dispute, because the discrimination was not on the basis of sex, then the constitutional questions ended right there – there was no need to additionally justify the classification under Article 15(3). Secondly, if Article 15(3) was invoked, then clearly there was an element of discrimination under Article 15 and 16. But if that was the case, then how could the Court invoke Article 15(3) to override the barrier on discrimination in public employment under Article 16(2)? The scheme of Article 16 has no provision equivalent to Article 15(3); in fact, Article 16(4) makes it clear that affirmative action under the Article 16 scheme is limited to socially and educationally backward classes. In a previous essay, we have seen how High Courts were split over the issue of the relationship between Article 15(3) and 16(2). In blithely invoking preferential treatment for women, the Supreme Court simply ignored this fraught textual question.

Lastly – and most problematically – is the Court’s assumption that the Settlement was a positive measure in favour of women. To buttress this opinion, it observed:

“We have taken a resume of several agreements, settlements and awards made after negotiations from time to time and periodically, between Air India and the AICCA being the recognised association with majority of male and female cabin crew members. In all the demands, it insisted on maintaining two separate cadres for pre-1997 recruits and agreed for early retirement age to air hostesses compared to males from flying duties with option to go for ground duty between 50 to 58 years of age. In the course of industrial adjudication through conciliation and negotiation the employer could legitimately acknowledge women’s perspective, their life experience and view point. After giving consideration to the same, the employer could agree for terms and conditions which suited the air hostesses.”

But there are two key questions that the Court entirely ignored. First, is discrimination no longer discrimination, if I have agreed to it? And if the answer to the question is no, if discrimination is at least partially an objective fact, then can I contract out of my right not to be discriminated against? The Court’s stress on the negotiated settlement between the Employer and the Association as solving the problem of discrimination relied upon the answer to at least one of those questions being in the affirmative. But these are crucial questions of constitutional philosophy, that require a detailed analysis – not blanket assumptions. Philosophical thought experiments such as that of the happy slave warn us about the dangers of a subjectivist approach to discrimination; and the question of whether it is permissible to waive one’s fundamental rights is controversial even within Indian jurisprudence (waiver was expressly rejected for Article 14 in Basheshar Nath’s Case).

Admittedly, the fact situation in Yashaswinee Merchant was nowhere near as straightforward or obvious as the happy slave hypothetical. Arguably, the service conditions of air hostesses (accelerated promotions and allowances in return for early retirement) were not significantly worse than that of air flight pursers. Consequently, the negotiated settlement certainly ought to have played a part in the Court’s reasoning. However, it could not have replaced  the overriding requirement of a constitutional analysis, which would call upon Air India to justify why there existed all-male and all-female cadres with different service conditions in the first place. Notice that the enquiry would not have ended at that point, even if, all things considered, it had been found that the air hostesses’ service conditions were more beneficial. As we have seen earlier, Article 15(3) cannot be interpreted to present a blank cheque to the State to impose any policy that advantages women over men. The purpose of Article 15(3) is to redress long centuries of structural disadvantage faced by women, which cannot be wiped out through formal a non-discrimination guarantee. Consequently, measures based upon the same stereotypes and prejudices that contributed to this structural disadvantage surely cannot be justified by taking recourse to Article 15(3). However, towards the end of the judgment, it became clear that this was precisely what motivated the opinion of the Court:

“Duties on flight demand of air hostesses physical fitness, agility and alertness. Duties in air are full of tension and sometimes hazardous. They have, therefore, agreed for comparatively early age of retirement with option to accept duties on the ground. There is nothing objectionable for air hostesses to wish for a peaceful and tension-free life at home with their families in the middle age and avoid remaining away for long durations on international flights.”

The implication (as we have seen innumerable times by now) is, of course, that women somehow lose the physical fitness, agility, alertness and ability to deal with tension after crossing the age of 50, while men retain it until the age of 58; and that the fulfillment of family obligations is the sole preserve of women. And what’s crucial to notice here is that the Court’s framing of the issue as one of consent and choice was a sleight of hand: after crossing the age of 50, it was mandatory for an air-hostess to accept ground employment. In fact, this, precisely, was why the policy had been challenged – i.e., that it actively denied women eight year of in-flight employment that was available to men, for no other reason that they were women.

It is this aspect, indeed, that constitutes the most disturbing part of the judgment; because what seemed to sway the Court was not simply the fact of a settlement, but that it was entered into by a majority of the employees, including air hostesses. The Court noted: “A small number of air hostesses nearing the age of 50 years and who are now in executive cadre cannot wriggle out of the binding agreements and settlements to which they were parties through the association.”

But why should “small numbers” matter in a constitutional claim based upon the non-discrimination guarantee of Article 15? Civil rights would be meaningless if their enforcement was dependent upon a showing of numbers; in fact, the very purpose of civil rights is to serve as a counter-majoritarian bulwark for the protection of basic liberties. And in this case, the Court effectively held that a majority of air hostesses could impose their preferences upon a minority, regardless of whether or not they were discriminatory. Thus, the question in Yashaswinee Merchant was not merely one of waiver, because not every air hostess had waived her right against non-discrimination. But not only did the Court assume the legitimacy of waiver, it also effectively held that some could waive their rights on the behalf of others. Needless to say, this is deeply problematic.

Attentive readers will, of course, have noted that the “small numbers” of Yashaswinee Merchant would, twelve years later, be transmitted into the “minuscule minority” of Koushal vs Naz Foundation. The pathology remains the same.

Yashaswinee Merchant, therefore, suffers from many of the discontents that plague Nargesh Mirza. Apart from the stereotypes that play both an overt and a covert role in the judgments, there is something else that unites them: a clear-headed constitutional analysis is muddied and obscured by the technicalities of service law (cadres, service conditions, settlements) and statutory provisions (in both cases, those of the Equal Remuneration Act). It seems that the scope and ambit of constitutional rights flows from service law and the Equal Remuneration Act, instead of the latter being held to the standards of the former. The broader question that crops up repeatedly in these cases is the relationship between specific domains of law and the Constitution. This is not limited to service law: recall that the competition regime raises questions about free speech (in the case of media holdings), the intellectual property rights regime intersects with free speech (copyright) and access to health (patents); and so on. The Air Hostess cases reflect a deeper problem with the Court’s approach to constitutional adjudication: according primacy to these specific domains, deciding cases with references to the internal norms that govern them, and – consequently – subordinating the Constitution to those norms. Unlike the South African Constitutional Court, which examined trademarks in the context of free speech, or the Canadian Supreme Court, which analysed copyright in the context of user’s rights to educational materials, the Indian Supreme Court is yet to create a constitutional framework within which it can analyse these laws. That time, we can only hope, comes sooner rather than later.

Original author: gautambhatia1988