Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Charu Khurana Vs. Union of India (UOI)
AIR 2015 SC 839, (2015) 1 SCC 192, (2015) 1 SCC (LS) 161
Hon’ble Judges/Coram : Dipak Misra and U.U. Lalit, JJ.
Date of Decision 10.11.2014
FACTS:
The Petitioner is a Hollywood trained Make-up Artist and Hair Stylist and she submitted an application to the Respondent Association to issue her a membership card as a Make-up Artist and Hair Stylist. She was not allowed to have a card and she was compelled to delete the word Make-up Artist from her application and to apply only as a Hair Dresser. Under this situation, she sent a complaint to many authorities that she was being deprived to work as a make-up artist and in her complaint she mentioned that when she was found working as a make-up artist, she was slapped with a fine of Rs. 26,500/-. Association, which is controlled by the Trade Unions Act, 1926, has incorporated a clause relating to this kind of classification and also further stipulated that a person to work must be a resident of Maharashtra for a period of five years.
ISSUE:
- Is there any infringement of fundamental right of the Petitioner under Part III of Indian Constitution?
JUDGMENT:
Article 39A in Part IV of the Constitution that deals with Directive Principles of State Policy, provides that the State shall direct its policies towards securing that the citizens, men and women equally, have the right to adequate means of livelihood. Clause (d) of the said Article provides for equal pay for equal work for both men and women and Clause (e) stipulates that health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength.
Clause (e) of Article 51-A says that it is the fundamental duty of every citizen to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women; and clause (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. On a condign understanding of Clause (e), it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced. Be it stated, dignity is the quintessential quality of a personality and a human frames always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to see that all citizens and they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. The importance of fundamental duties in interpreting the provisions of the constitution was reiterated in the case of AIIMS Students’ Union v. AIIMS and Ors. (2002) 1 SCC 42.
Article 14 provides that the State shall not deny to any person equality before the law, or the equal protection of laws within the territory of India. Article 19(1)(g) provides that all citizens have the right to practise any profession or to carry on any occupation, trade or business. Needless to emphasise the said right is subject to reasonable restrictions to be imposed, as permissible Under Article 19(6) of the Constitution. Article 21 deals with the concept of life, which has been extended to a great extent through Judicial Interpretation. There cannot be any discrimination solely on the ground of gender. Reservation of seats for women in Panchayats and Municipalities have been provided Under Articles 243(d)and 243(t) of the Constitution of India. The purpose of the constitutional amendment is that the women in India are required to participate more in a democratic set-up especially at the grass root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th amendment of the Constitution which deals with the reservation of women has the avowed purpose, that is, the women should become parties in the decision making process in a democracy that is governed by rule of law. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.
Section 5 of the Trade Unions Act provides for application for registration. It stipulates that every application for registration of a trade union shall be made to the Registrar, and shall be accompanied by a copy of the Rules of the trade unions. It is the duty of the Registrar of the Trade Unions to see that no rule is framed by any trade union which is inconsistent with the Act. Section 6 stipulates that a trade union shall not be entitled to registration under the Act, unless the executive thereof is constituted in accordance with the provisions of the Act and the rules thereof. Section 10 deals with the cancellation of registration. Among other things it provides that the certificate of registration of a Trade Union can be withdrawn or cancelled by the Registrar if allowed any rule to continue in force inconsistent with the provision or rescinded any rule providing for any manner as required by Section 6. Section 21A only prescribes the age and certain other qualifications. The aforesaid statutory provisions do not make a distinction between a man and woman, and rightly so.
The Respondent Association has been registered under the Trade Unions Act. The Association has its own bye-laws. Clause 4 of the bye-laws provides for the procedure for membership and admission of new members in the Association. Bye-laws have been certified by the Registrar of Trade Unions in exercise of the statutory power. Clause 4 violates Section 21 of the Act, for the Act has not made any distinction between men and women. Had it made a bald distinction it would have been indubitably unconstitutional. The legislature, by way of amendment in Section 21A, has only fixed the age. It is clear that the clause, apart from violating the statutory command, also violates the constitutional mandate which postulates that there cannot be any discrimination on the ground of sex. Such discrimination in the access of employment and to be considered for the employment unless some justifiable riders are attached to it, cannot withstand scrutiny. When the access or entry is denied, Article 21 which deals with livelihood is offended. It also works against the fundamental human rights. Such kind of debarment creates a concavity in her capacity to earn her livelihood. A clause in the bye-laws of a trade union, which calls itself an Association, which is accepted by the statutory authority, cannot play foul of Article 21.
The discrimination done by the Association, a trade union registered under the Act, whose rules have been accepted, cannot take the route of the discrimination solely on the basis of sex. It really plays foul of the statutory provisions. It is absolutely violative of constitutional values and norms. If a female artist does not get an opportunity to enter into the arena of being a member of the Association, she cannot work as a female artist. It is inconceivable. The likes of the Petitioners are given membership as hair dressers, but not as make-up artist. There is no fathomable reason for the same. It is gender bias writ large. It is totally impermissible and wholly unacceptable.
HELD:
Court held that bye laws of the association clearly in contravention of fundamental rights of the Petitioner under Article 14, 15 and 21 of the Indian Constitution.
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