A Gender Bending Judgement

Updated: Jul 29 2003, 05:30am hrs
The recent Supreme Court decision in the Air India airhostesses case has received flak for being retrograde and discriminatory. It disagrees with and overrules a Bombay High Court judgement holding the retirement age of airhostesses at 50 to be discriminatory, compared to their male counterparts at 58. Prima facie, the criticism seems justified. Whether the complexities of the case extend beyond the sexist observation that there is nothing objectionable for airhostesses to wish for a peaceful and tension-free life at home with their families, is the concern.

The genesis of the decision can be traced to the landmark 1981 Supreme Court decision in Air India Vs Nergesh Mirza, which challenged the service regulation requiring airhostesses to retire on marriage, first pregnancy, or the age of 35, whichever occurred earlier. The Corporations submissions had emphasised the importance of appearance, youth and glamour, as essential qualities for inflight service. The Supreme Court quashed the offending regulation, extending the retirement age of airhostesses to 45, with further mandatory extension for 10 years.

In the interregnum, various settlements were reached by the Corporation, with the airhostesses agreeing to retire at 50 with option for ground duties. This was subsequently challenged as being violative of Articles 14, 15, and 16 of the Constitution and provisions of the Equal Remuneration and Air Corporation Acts, in comparison to male pursers who could retire at 58. Reliance was also placed on a 1989 Government direction under Section 34 of the Air Corporation Act requiring Air India and Indian Airlines to remove the gender disparity in the retirement age.

On the basis of proposals, counterproposals and consideration, a consent order was passed by the Bombay High Court. Briefly, it seeks to create total parity between airhostesses and flight pursers, creating safeguards for seniority. Hierarchy, special benefits, medical examinations would no longer be based on gender considerations. Both cadres were given an option to chose retirement at 50 or 58.

Associations representing male and female employees, including airhostesses, challenged the judgement as adversely affecting their seniority and promotional prospects governed by the various agreements and settlements.

The Supreme Court, in setting aside the High Court decision, has relied on the fact that majority of airhostesses resisted this change as it threatened their special benefits; they wanted to retain their right of early retirement with option of ground service. The dissident note was struck by senior airhostesses who had risen to the executive cadre, and according to the Supreme Court, were trying to wriggle out of the agreements from which they had benefited substantially. This certainly is a ground on which the impugned judgement can be faulted.

The Supreme Court has also decried the judgement as being against judicial discipline in taking the erroneous view that with passage of time, differences in service conditions between male and female cadres have been obliterated. It also criticises the High Courts method in adopting a strange procedure unknown to law in trying to work out a consensual solution. This reads strangely, since the proactive judiciary is also a conciliatory one.

The Supreme Courts view is that the High Court has side-stepped the binding ratio in Nergesh Mirzas case, and overlooked the agreements and settlements in operation. Why this is so, whether the agreements and settlements were in compliance with the Equal Remuneration Act, (which was not around in 1981) is not clear. It has also ignored a 1987 Supreme Court decision that when persons of either sex perform same work or work of similar nature, difference in service conditions cannot be justified on the ground of settlements and agreements.

What is disturbing is the judiciarys justification of the glass ceiling. There are plenty of patriarchal platitudes on womens wishes for a tension-free life at home, the importance of pleasing appearance and physical fitness relatable to age and gender, family commitments becoming more important at 50 than at child birth. This raises questions on its non-applicability qua other women who work round the clock such as doctors, nurses etc. The concern is that the corporate sector may adopt gender discriminatory practices openly against women, drawing legitimacy from this judgement.

The author is a practicing corporate lawyer and partner in Khaitan & Jayakar, Sud, Sen, Budhiraja & Vohra, a Delhi law firm