Women at Work

Read the case honestly, because MU's examiners know its weaknesses. The Court did not strike down the lower retirement age. It held that air hostesses and male cabin crew formed separate classes with different recruitment, promotion and conditions, so that no comparison arose between them, and it is that classification which is criticised: if the class is defined by the job women hold, then a comparison between the sexes can always be avoided by defining the job narrowly enough. A modern court would ask whether the classification is itself sex-based.

Retirement age and the comparator problem

The general position now is that a service condition fixing a lower retirement age for women, without a reason connected to the work, is discrimination on the ground of sex and is bad.

The difficulty is the comparator. Article 16(2) forbids discrimination on the ground of sex, which requires comparing the treatment of a woman with that of a man in the same position. Where the employer has created a separate cadre consisting only of women, there is no man in the same position, and the comparison collapses. That is precisely what happened in Nergesh Meerza.

The answer that has developed is to ask whether the cadre itself is sex-based. If the only reason a job is held exclusively by women is a policy of employing only women in it, then the cadre is a product of the discrimination complained of and cannot be used to justify it. An answer that spots this point is doing the analysis rather than reciting the case.

Night work and hazardous work

The classic protective restrictions, and the modern trend is against them.

The old position. Legislation prohibited the employment of women at night and in underground mines, and such prohibitions were defended as special provisions under article 15(3) and as giving effect to article 39(e), the health and strength of workers.

The objection. A blanket prohibition removes employment, overtime and the experience on which promotion depends, and it does so on an assumption about safety that the State could address directly by regulating conditions instead. It is protection that operates as exclusion, which is the limit on article 15(3) set out in [Special Provision for Women].

The modern approach. Where such prohibitions have been challenged, the tendency has been to strike them down or read them down, and to substitute conditions: adequate security, transport, sufficient numbers, consent. Legislation has moved the same way, permitting night work subject to safeguards.

The proposition to state. The constitutional answer to a risk faced by women at work is to remove the risk, not to remove the women.

The armed forces

The recurring modern example, and it is worth naming even though the leading decisions are in the case bank's queue and are not cited here.

The pattern of the litigation has been consistent: women officers were granted short service commissions but denied permanent commission, and denied command appointments, on grounds of physiological differences, the composition of the rank and file, and operational conditions. The courts have rejected those grounds as stereotypes rather than reasons, and have held that a blanket exclusion based on sex, unsupported by evidence about the individual, offends articles 14 and 16.

Article 33 is the provision to notice here: it permits Parliament to restrict or abrogate the application of the fundamental rights to members of the armed forces. So the constitutional position in this field is not that the rights apply in full, but that any restriction must come from a law made under article 33, and cannot be assumed from the nature of the service.

Equal pay, maternity and benefits

Equal pay for equal work is not itself a fundamental right. It is a directive principle in article 39(d), and it has been given effect by legislation. Its constitutional force comes from being read with articles 14 and 16: paying two people differently for the same work, with no difference in duties, responsibility or qualification, is discrimination without a differentia. So the claim is framed under article 14, with article 39(d) as the interpretive support.

Maternity relief is directed by article 42 in terms, and is provided by statute, extended in 2017 to twenty-six weeks with creche facilities in larger establishments. A denial of maternity benefit to a woman in public employment is challengeable under article 14 read with articles 42 and 39(e).

The deeper point for an answer. Maternity benefit is the one place where the Constitution requires the State to treat women differently in order to treat them equally. Requiring a pregnant woman to be treated identically with everyone else would end her employment; the special provision is what makes her participation possible. That is substantive equality in its clearest form, and it is the answer to anyone who says article 15(3) is a departure from equality.

A worked example

A State police service provides: (a) that the maximum age for recruitment of women is twenty-five and of men thirty; (b) that women officers shall not be posted to night patrol duty; (c) that a woman officer who marries shall inform the department and may be transferred to her spouse's district; and (d) that a woman officer shall be entitled to twenty-six weeks of maternity leave. A woman officer challenges (a), (b) and (c).

(a) The age limit. Directly sex-based and to her disadvantage: it shortens the period in which she may apply. Article 15(3) does not save it because it is not a provision for women. No reason connected to the work is apparent. It fails under article 16(2) and, independently, as arbitrary on Royappa.

(b) Night patrol. Framed as protection, operating as exclusion: it removes duties that carry allowances and count for promotion. The constitutional answer to the risk is to secure the conditions, not to withdraw the posting. It fails.

(c) Transfer on marriage. Look carefully, because this one is a genuine question. If the rule entitles her to seek a transfer, it enlarges her choices and is a permissible special provision. If it requires her to be transferred, it removes a choice and treats her career as subordinate to her spouse's, which is the stereotype the equality guarantee exists to defeat. The drafting decides it: "may be transferred" on her request is good, "shall be transferred" is not.

(d) Maternity leave. Valid, and required rather than merely permitted, being supported by article 42 and article 39(e) and being the paradigm of a provision that makes equal participation possible.

Quick revision

• Four recurring questions: entry, continuance, the conditions of the work, and pay and benefits.
• Nergesh Meerza: termination on first pregnancy is official arbitrariness and void; the unguided extension power is void; but the retirement age was NOT struck down and the separate-class reasoning is criticised.
• The comparator problem: where a cadre is all-female there is no male comparator. Ask whether the cadre itself is sex-based.
• Night and hazardous work: the answer to a risk is to remove the risk, not the women. Protection that excludes is outside article 15(3).
• Armed forces: exclusions based on stereotype fail, and any restriction must come from a law under article 33.
• Equal pay is article 39(d), not a fundamental right; the claim is framed under article 14 with 39(d) in support.
• Maternity relief under article 42 is where the Constitution requires different treatment in order to achieve equal participation.

Test yourself

1. Name the four recurring questions in this area and give an example of each.

2. What exactly did Nergesh Meerza strike down, and what is the criticism of what it did not?

3. Explain the comparator problem and the answer that has developed to it.

4. Why is a blanket prohibition on night work not saved by article 15(3)?

5. What is the significance of article 33 in the armed forces cases?

6. Is equal pay for equal work a fundamental right? How is the claim framed?