In the case of women, the barriers to appointment are a result of the same conditions which make continued employment difficult. One of the major grounds of discrimination is the perceived child-rearing obligations of the mother. The law has stepped in and provisions have been made to secure certain maternity benefits for mothers. However, such legislation does not always result in achieving the desired result. Employers are reluctant to hire women because they fear that there would be additional costs in order to comply with egalitarian laws such as maternity benefits. Paradoxically, the greater the amount of protection afforded to women to account for their unequal status, the greater the compliance costs and hence greater the disincentive to hiring women.
While one might expect this thinking from the private sector, it is unfortunate that even the government has often taken a similar position. This, in spite of the fact that the Constitution states that “the State shall make provision for securing just and humane conditions of work and for maternity relief”. One early example of this was the case of air hostesses working with Air India. The regulations provided that their services could be terminated if they got married within four years of joining the service or upon their first pregnancy. Further, the retirement age of women was 35 years, extendable up to 45 years, at the discretion of the managing director of Air India. On the other hand, the retirement age for male pursers who were doing a fairly similar job was 58 years. The Supreme Court struck down the provision which provided for termination of services after the first pregnancy but upheld the different retirement ages between the male and female employees. The truly astounding rationale was when the court upheld the provision permitting termination if the air hostess got married within the first four years of her service.
The court noted that if an air hostess joined service at 19, she could not get married till she was at least 23, lest she lose her job. This, as per the judgment, was a good thing because “apart from improving the health of the employee, it helps a good deal in the promotion and boosting up of our family planning programme. Secondly, if a woman marries near about the age or 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal”. Clearly, the court thought that the responsibility of family planning lay only upon women and that the requirement to be mature before marriage was also solely cast upon women!
The judgment was ultimately based on a reading of Articles 15 and 16 of the Constitution which permitted discrimination on the grounds of sex as long as that was not the only ground of distinction. If the government could show that there was any other reason along with the discrimination on account of sex, the provision would be upheld. The government had issued a notification stating that the differences were based on “different conditions of service and not on the difference of sex” in the case of air hostesses. Relying on this, the court held that since the government had issued such a notification, it was settled that the discrimination was not only on the grounds of sex.
There are several problems with such a decision. First, deference to a government notification hardly behoved the Supreme Court of India. More importantly, to hold that there was no violation of the Constitutional promise of equality because the discrimination was on the grounds of sex as well as other grounds (i.e., not solely on the grounds of sex) makes the right meaningless. A clever employer can always think of creative ways to discriminate by imagining grounds which are different from sex, but which are peculiar to one sex (or our stereotypical assumptions of that sex). Thus, in a follow-up case in the Air India matter, women were required to stop flying duties at the age of 50 after which they could continue with ground duties till the age of 58. This was disadvantageous to women as flying duties paid more than ground duties. The Supreme Court upheld this regulation holding that “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”. Apparently, the Supreme Court felt that making women retire at the age of 50 (or opt for ground duties) was a measure in their interest.
Fortunately, it seems that this line of cases is no longer good law. In Navtej Johar v Union of India, the case where Section 377 of the Indian Penal Code criminalising homosexuality was read down, the Supreme Court disapproved of this line of reasoning. In a passage that is worth reproducing (and self-explanatory), Justice DY Chandrachud held thus:
A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1). That such a discrimination is a result of grounds rooted in sex and other considerations, can no longer be held to be a position supported by the intersectional understanding of how discrimination operates. This infuses Article 15 with true rigour to give it a complete constitutional dimension in prohibiting discrimination.
The Constitution, in essence, does not permit an employer (as long as it is the government) from making any stereotypical assumption about women and use that to discriminate against women. This was also the basis of the judgment in the case of Anuj Garg discussed above, where women were prohibited from working in bars only because of their presumed frailty.
This trend of judgments is certainly promising. Yet there are other areas in matters of motherhood where the law does not do enough to secure equality. For instance, while the law does provide for maternity leave, it fails to recognise that child-rearing duties fall squarely on women in our society and that these responsibilities do not end when maternity leave is over. To be able to fully participate at the workplace, women need access to childcare facilities including crèches, which are simply not available at most workplaces. There are no laws requiring employers to provide these facilities, making it tough for women to continue working.
Excerpted with permission from Who Is Equal: The Equality Code of the Constitution, Saurabh Kirpal, Penguin India.
