NARGESH MEERZA VS AIR INDIA

FINAL DRAFT SUBMITTED IN FULFILMENT OF THE COURSE TITLED LABOUR

LAW- II FOR OBTAINING THE DEGREE B.A., LL.B. DURING THE ACADEMIC
YEAR 2020-21.

SUBMITTED TO SUBMITTED BY
Mrs. PALLAVI SHANKAR Sankalp Yashwardhan
(FACULTY OF LAW) Roll: 1969
5TH Semester

CHANAKYA NATIONAL LAW UNIVERSITY

OCTOBER 2020

1
 ACKNOWLEDGEMENTS

I would especially like to thank my guide, mentor, Mrs. PALLAVI SHANKAR without
whose constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

THANK YOU,

NAME: Sankalp Yashwardhan

COURSE: B.A., LL.B.

ROLL NO: 1969

SEMESTER – 5th

SESSION- 2018-2023

2
 DECLARATION

I, Sankalp Yashwardhan, student of Chanakya National Law University, hereby declare that
the project work entitled “Nargesh meerza vs AIR India” submitted to the Chanakya
National Law University, Patna is a record of an original work done by me under
the guidance of Mrs. PALLAVI SHANKAR, teacher in subject, Chanakya National Law
University, Patna.

THANK YOU,

NAME: Sankalp Yashwardhan

COURSE: B.A., LL.B.

ROLL NO: 1969

SEMESTER – 5TH

SESSION- 2018-2023

3
INTRODUCTION

In India, the Vedic period gave equal status to men and women, but this ideology had a
tectonic shift over a period. The men have overshadowed the position of women in the
society. At the time of Independence, the inequality was apparent, and the constitutional
framers had to address this as it chose a democratic republic as a form of governance.
Systems have to be put in place for the operation of the democratic forces to ensure equality. 
The constitutional provisions and various legislations have been enacted which became a
bedrock towards ensuring equal opportunities to men and women. When equal opportunities
are put in place, the next line of action needed is equal remuneration for the same work done
without reference to the gender. To make this legislation a success, the onus is on the
employer for effective implementation.

The employment of women has been increasing gradually over the years. Moreover, the
works which were considered gender specific underwent a sea of change. Women were
usually seen as less productive than their male counterparts. The general perspective of
women was that they weren’t as serious as men in their work as family and home are their
main priority. Economic dependency is the major cause for the women to have a weak
bargaining power. This usually makes the employer take them for granted, and the wage rate
would be unequal.

In the modern times, the women are no longer restricted to minimal jobs or the traditional
works. They are employed at par with men and to protect their interests and ensure they get a
fair chance, statutory recognition is given through different legislations, enacted both at
center and state levels. The Workmen Compensation Act, Payment of Wages Act, Factories
Act, Minimum Wages Act, The Equal Remuneration Act, Maternity Benefits Act, ESI Act,
etc. are some of the legislations aimed at ensuring equal wages without gender bias.

In Air India v Nargesh Mirza, which remains one of the landmark Supreme Court judgments
on the issue. It is also, , an analytically unsatisfactory decision, which fails to take into
account the nuanced and reflective sex discrimination jurisprudence which, as we have seen,
was in the process of being developed by various High Courts across the country.

METHOD RESEARCH
4
The researcher has adopted a purely doctrinal method of research. The researcher has made

extensive use of the library at the Chanakya National Law University and also the internet

sources.

SOURCE OF DATA

The researcher has relied upon both primary as well as secondary sources to complete the

project.

• Primary Source – Bare Act, Case Law

• Secondary Source – Newspaper, Article Internet

METHOD OF WRITING

The method of writing followed in the course of this research paper is primarily analytical.

AIMS AND OBJECTIVE

The researcher intends to do a critical analysis of the case Nargesh meerza vs AIR India with

respect to various provisions of laws and cases.

HYPOTHESIS

The researcher is of the opinion that judgement of Nargesh meerza vs AIR India laid

guidelines which was incorporated under equal remuneration act, 1976.

5
CHAPTER-1
WHAT IS EQUAL REMUNERATION ACT,1976?

The principle of equal work to men and women worker has been gaining increasing
acceptance all over the world. In many countries, law have been passed prohibiting
discrimination between men and women in matters relating to payment of wages for similar
work. The State Policy article 39 of the Constitution envisages that the State shall direct its
policy, among other things, towards securing that there is equal pay for equal work for both
men and women. The International Women’s Year, President of India promulgated the Equal
Remuneration Ordinance, 1975 on 26th September, 1975 to provide for the payment of equal
remuneration to men and women workers

The salient features of the Equal Remuneration Act, 1976

 The Act is a Central Legislation and applies to the whole of India.

 The objective of the Act is to provide for protection against discrimination of
women workers on the ground of sex, about the payment of equal remuneration in
the matter of employment.
 Restricting the employer to create terms and conditions in a contract of service or
work of labor contrary to equal pay for equal work doctrine and the provisions of
Equal Remuneration Act.
 The Act doesn’t make a distinction like employment or the period of employment
and applies to all workers even if engaged only for a day or few days.
 No overriding effect is given to any agreement, settlement or contract to the
provisions of the Equal Remuneration Act.
 Any settlement or any agreement with the employee that is detrimental to the
employee isn’t allowed.
 The Ministry of Labour and The Central Advisory Committee are responsible for
enforcing this Act.
 Meaning of equality of work: The equality of work is not based solely on the
designation or the nature of work but also on factors like qualifications,

6
 responsibilities, reliabilities, experience, confidentiality, functional need and
requirements commensurate with the position in the hierarchy are equally relevant.
 When the employer doesn’t comply with the provisions of the act, he will be liable
to pay fine, imprisonment, or both.

The duties of the employer under the Act:-

Section 4: The duty of the employer to pay equal remuneration to both men and women
workers for same work or work of similar nature

 No employer shall pay to any worker, employed by him in an establishment or employment,
remuneration, cash or in kind at rates less favorable than those at which he pays remuneration
to the workers of the opposite sex for performing the same work or work of a similar nature.

 The rate of remuneration of any worker will not be reduced to avoid complying
with Section 4(1).
 In respect of any establishment, the rates of remuneration payable before the
commencement of the Act for men and women for same or similar nature work is
different only on the ground of sex, then the highest of the rates will be payable
after the commencement of the Act.

Section 5: No discrimination to be made while recruiting men and women workers

For any recruitment or any condition of service after recruitment like promotions, training or
transfer, for the same or similar nature work, the employer will not make any discrimination
against women except where the employment of women in such work is prohibited or
restricted by or under any law for the time being in force.

Proviso: the provisions of the Act will not affect the priority given or reservation for SC, STs,
ex-service men, retrenched employees.

7
  Advisory Committee ( increasing employment opportunities for women )
 Every Advisory Committee shall consist of not less than ten persons, to be
nominated by the appropriate Government, of which one-half shall be women.
 Every Advisory Committee shall consist of not less than ten persons, to be
nominated by the appropriate Government, of which one-half shall be women.
 The Advisory Committee shall regulate its own procedure.
 The appropriate Government may, after considering the advice tendered to it by
the Advisory Committee and after giving to the persons concerned in the
establishment or employment an opportunity to make representations, issue such
directions in respect of employment or women workers, as the appropriate
Government may think fit.

 Authorities for hearing and deciding claims and complaints:- The appropriate
Government may, by notification, appoint such officers, not below the rank of a
Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and
deciding

 Maintenance of registers (Sec 8) :- Every employer is required to maintain

prescribed registers and documents in relation to workers employed by him

CHAPTER-2
FACTS AND ISSUES OF THE CASE

The facts and history that led to the case are extremely complex, and involve two entities (Air
India and Indian Airlines Corporation), and multiple rounds of litigation before two tribunals,
and then the courts. The following is a highly simplified summary. Briefly, Regulations 46
and 47 of the Air India Employees Service Regulations were challenged. These Service
Regulations had created a significant amount of disparity between the pay and promotional
avenues of male and female in-flight cabin crew (in accordance with Air India’s designations,
the male cabin crew shall be referred to as “Air Flight Pursers” [“AFPs”], and the female

8
cabin crew as Air Hostesses [“AH”]).  For instance, under Regulation 46, while the
retirement age for Flight Pursers was 58, Air Hostesses were required to retire at 35, or on
marriage (if they married within four years of joining the service), or on their first
pregnancy, whichever occurred earlier. Under Regulation 47, this period could be extended,
subject to the absolute discretion of the Managing Director.

Facts: The case imposed a challenge on Regulations 46 and 47 of the Air India Employees
Service Regulations. With the challenge being posited on the grounds that the aforesaid
regulation created a substantial degree of disparity between male (referred to as Air Flight
Pursers) and female (Air Hostesses) (and within the Air Hostesses different operational
standards dependent on whether one is working for Air India International on the
International circuit or Indian Airlines on the domestic circuit) on multitude of grounds such
as promotional avenues, differential retirement ages, conditions pertaining to termination of
the Air hostesses services in cases of pregnancy or marriage (retirement age for them was 35
years  as opposed to 58 for their “male counterparts” – according to Regulation 46).
Furthermore, a more prosaic question was regarding the discretionary powers of the
Managing Director who under Regulation 47 could increase the age of retirement as per his
own behest. An aspect which is contested by the petitioners as being arbitrary.

Procedural History: The said matter was brought under the dais of a writ petition before the
Supreme Court. With previous iterations of the case having previously been presented before
the National Industrial Tribunals ( one  being the Khosla Tribunal (1965) while the other
being the Mahesh Tribunal( 1972) )

Rule:

Article 14 Of The CONSTITUTION OF INDIA

Equality before law The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth

Article 15(1) Of The CONSTITUTION OF INDIA

9
The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them

Article 16 Of The CONSTITUTION OF INDIA

 Equality of opportunity in matters of public employment

Regulation 46  Air India Employees Service Regulations

Retiring Age:

Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the
service of the Corporation upon attaining the age of 58 years, except in the following cases
when he/she shall retire earlier:

(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within
four years of service or on first pregnancy, whichever occurs earlier.

Regulation 47  Of Air India Employees Service Regulations

Extension of Service.

Notwithstanding anything contained in Regulation 46, the services of any employee, may, at
the option of the Managing Director but on the employee being found medically fit, be
extended by one year at a time beyond the age of retirement for an aggregate period not
exceeding two years, except in the case of Air Hostesses and Receptionists where the period
will be ten years and five years respectively.”

Issues:

(i) Whether Regulation 46 & 47 are violative of Articles 14,15, 16 of the Constitution of
India and thus ultra vires in whole or part?

10
(ii) Whether discretionary powers as enumerated under Regulation 47 can be deemed as
being excessive delegation?

JUDGEMENT:-

Bench : J. Faizal Ali, J. Syed Murtaza & J. A. Vardarajan

The first round of litigation took place before two Tribunals, which had successively upheld
the Regulations, making observations such as the necessity of having “young and attractive”
air hostesses to deal with temperamental passengers. The case finally came to the Supreme
Court, which upheld the regulations in part, modified them in part, and struck them down in
part.

Before the Supreme Court, the constitutional provisions at issue were Articles 14 (equality
before law), 15(1) (non-discrimination on grounds of sex), and 16(2) (non-discrimination on
grounds of sex in public employment). In order to have a clear understanding of the Court’s
reasoning, it will be important to consider them separately.

Article 14 (the classification test): The Court began by observing that “Art. 14 forbids hostile
discrimination but not reasonable classification. Thus, where persons belonging to a
particular class in view of their special attributes, qualities, mode of recruitment and the like,
are differently treated in public interest to advance and boost members belonging to
backward classes, such a classification would not amount to discrimination.” It then noted
that Air Flight Pursers and Air Hostesses formed different classes (in service law
terminology, separate “cadres”): they had different recruitment conditions and different
promotional avenues. Consequently, the “inescapable conclusion that follows is that … there
are two separate and different classes having different conditions of service and different
incidents, [and] the question of discrimination does not arise.”

But there is something extremely puzzling about this reasoning. Admittedly, in service law,
there are different cadres within the same department, with their own separate recruitment
rules, promotional avenues and service conditions. This, in itself, does not raise any Article
14 issue. These cadres are constituted in order that persons doing one kind of work are
streamlined into a single category when it comes to the rules governing them. In Nargesh

11
Mirza, however, the constitution of the cadre was itself on the basis of sex. That is to say, by
definition, only women could become air hostesses, and only men could become Air Flight
Pursers. Instead of starting off by examining whether this initial sex-based classification was
in conformity with Articles 14, 15 and 16, the Court instead began by noting that because the
service conditions and promotional avenues of the two cadres were different, therefore they
formed separate classes, and could legitimately be treated separately! This is strange
reasoning. It effectively means that the guarantees under Articles 15 and 16 are useless; in
order to get around them, all I need to do is to divide my workforce along sex, caste or
religious lines, give them different names, treat one class in a manner far inferior to the other,
and then justify it by invoking that very separateness of treatment to argue that the two form
separate cadres. To put it another way, the Court used the fact that women were being treated
less favourably than men to hold that women and men formed separate classes, and that
therefore inferior treatment was justified. The vicious circularity of his reasoning is exhibited
by the fact that in order to prove that AFPs and AHs formed different cadres, the Court
observed that one of the recruitment conditions for AHs was that they must be unmarried,
whereas there was no such condition for the AFPs. As we have seen before, imposing
marriage as a disqualification upon women but not upon men is itself discriminatory; here,
the Court uses that as proof that AFPs and AHs form different classes, for different treatment!

What is stranger, however, is that in its initial formulation, the Court seemed to be aware of
this. It noted that “where persons belonging to a particular class in view of their special
attributes, qualities, mode of recruitment and the like, are differently treated in public
interest…”, there would be no discrimination. In its actual analysis of the flight pursers/air
hostess distinction, though, the “special attributes” and “qualities” somehow dropped out of
the analysis, and the Court only focused on the recruitment, service conditions and
promotional avenues. Indeed, one of the major issues before the Court was whether AFPs and
AHs performed different functions. The Court emphatically rejected Fali Nariman’s
submissions that the functions of the two sets of cabin crew were different; it held that “a
perusal of the job functions which have been detailed in the affidavit, clearly shows that the
functions of the two, though obviously different overlap on some points but the difference, if
any, is one of degree rather than of kind.” And yet, despite this finding, the Court nonetheless
was able to hold that there was no Article 14 violation.

12
Articles 15 and 16: In comparison with its exposition of Article 14, the Court’s analysis of
Articles 15 and 16 was threadbare. It dismissed the challenge in a couple of paragraphs. It
noted, first, that under Section 16 of the Equal Remuneration Act, it was stated that “where
the appropriate Government is, on a consideration of all the circumstances of the case,
satisfied that the differences in regard to the remuneration, or a particular species of
remuneration, of men and women workers in any establishments or employment is based on
a factor other than sex, it may, by notification, make a declaration to that effect, and any act
of the employer attributable to such a difference shall not be deemed to be a contravention of
any provision of this Act.” In this case, the government had passed a notification under
Section 16. The Court held that “the declaration by the Central Government, therefore,
completely concludes the matter.”

The matter, however, is not quite as simply as that. There are three reasons why the Section
16 notification should not have concluded the issue in this case. First, as the text of the
Section makes clear, the deeming fiction is limited in nature: the Government’s notification
only exempts a classification from liability under the Equal Remuneration Act, and doesn’t
give it immunity from a constitutional challenge. Secondly – and most importantly – Section
16 deals with situations where the classification is deemed by the government to be based on
a factor other than sex. This, as we have seen before, is an approach to discrimination law
that focuses on the discriminator’s reasons, and not on the law’s effects upon protected
constituencies. But, as we discussed in the previous essay, there are overwhelming
jurisprudential reasons for holding the effects-based test to be the correct one for adjudicating
constitutional claims against discrimination. Consequently, Section 16 could have no effect
upon the Article 15(1) or 16(2) enquiries. And lastly, even if we take Article 15(1) to
incorporate a reason-based model, S. 16 clearly cannot be read to foreclose an independent
constitutional enquiry by the Court! If that were to be the case, then S. 16 effectively
becomes the following: “where the Appropriate Government makes a declaration that a
classification does not violate Article 15(1) of the Constitution, any such classification will be
deemed not to violate Article 15(1).” At the very least, such a reading would make Section 16
suffer from the vice of excessive delegation. Therefore, it seems evident that the Supreme
Court was incorrect in holding that “the declaration by the Central Government… completely
concludes the matter.”

13
After noting this, the Supreme Court observed that “even otherwise, what Articles IS (l) and
16 (2) prohibit is that discrimination should not be made only and only on the ground of sex.
These Articles of the Constitution do not prohibit the State from making discrimination on
the ground of sex coupled with other considerations.” It then cited excerpts from Yusuf
Abdul Aziz and M.C. Muthamma, before observing “for these reasons, therefore, the
argument of Mr. Setalvad that the conditions of service with regard to retirement, etc.,
amount to discrimination on the ground of sex only is overruled and it is held that the
conditions of service indicated above are not violative of Art. 16 on this ground.”

Yet there is absolutely no reasoning by the Court to link the premise to the conclusion. It
made no effort to adduce the “grounds” apart from sex that were at play in the impugned
classification. There are very good reasons for this: it would have required the Court to ask
the principal question that it had avoided throughout its judgment: what was the basis for the
initial classification into Air Flight Pursers (male) and Air Hostesses (female), upon which
the different conditions of service were superimposed? Especially after finding that the work
performed overlapped, the Court would have been left with no option but to hold that the
classification was only on the basis of sex. Instead, and unfortunately, it evaded the question.

Article 14 and Arbitrariness: With the classification test under Article 14, and the
discrimination claims under Articles 15 and 16 having been rejected, there was one last arrow
left in the bow of the challengers: to impugn the Regulations as “arbitrary” under Article 14.
As we all know, there are two parallel tests under Article 14: first, the classification test,
which requires there to be an intelligible differentia between the two groups that are created
by a classification, and a rational nexus with a State objective; and secondly, the judicially-
invented “arbitrariness” test: legislation will fail under Article 14 if it is “manifestly
unreasonable” or “absolutely arbitrary”. In the history of the Court, the “arbitrariness test”
has never really been provided strong conceptual or definitional foundations. Its
manipulability was in evidence again, in Nargesh Mirza. On the condition that the Air
Hostess’ employment would be terminated if she married within four years of joining, the
Court noted:

“So far as the question of marriage within four years is concerned, we do not think that the
provisions suffer from any constitutional infirmity. According to the regulations an AH starts
her career between the age of 19 to 26 years. Most of the AHs are not only SSC which is the
minimum qualification but possess even higher qualifications and there are very few who
14
decide to marry immediately after entering the service. Thus, the Regulation permits an AH
to marry at the age of 23 if she has joined the service at the age of 19 which is by all
standards a very sound and salutary provision. Apart from improving the health of the
employee, it helps a good in the promotion and boosing up of our family planning
programme. Secondly, if a woman marries near about the age of 20 to 23 years, she becomes
fully mature and there is every chance of such a marriage proving a success, all things being
equal. Thirdly, it has been rightly pointed out to us by the Corporation that if the bar of
marriage within four years of service is removed then the Corporation will have to incur huge
expenditure in recruiting additional AHs either on a temporary or on ad hoc basis to replace
the working AHs if they conceive and any period short of four years would be too little a time
for the Corporation to phase out such an ambitious plan.”

One need not dwell too long on the outright stereotyping that the Court engaged in here, apart
from noting, yet again, that the elephant in the room – i.e., that men were not subjected to the
same standards with respect to marriage which, according to the Court, were crucial for
“health” and “family planning”. While upholding the marriage requirement, the Court
nonetheless found the requirement of termination on the first pregnancy to be
unconstitutional, observing: “It seems to us that the termination of the services of an AH
under such circumstances is not only a callous and cruel act but an open insult to Indian
womanhood the most sacrosanct and cherised institution.” In response, Fali Nariman
proposed replacing “first pregnancy” with “third pregnancy”, and subjecting Air Hostesses to
a series of requirements, such as taking leave without pay during the pregnancy period and
having to undergo an annual fitness examination “in the interests of maintenance of
efficiency”. These Amendments were described by the Court as “quite reasonable“.
Bizarrely, even as it upheld termination on third pregnancy, the Court also accepted the
dissenting judgments in the American case of General Electric Company vs Martha
Gilbert, which had held that a classification on the basis of pregnancy amounted to sex
discrimination! The two standpoints are impossible to reconcile, and the Court’s attempts to
do so perhaps highlight the intellectual aridity of the “arbitrariness” doctrine:

“In the first place, the provision preventing third pregnancy with two existing children would
be in the larger interest of the health of the AH concerned as also for the good upbringing of
the children. Secondly, as indicated above while dealing with the rule regarding prohibition
of marriage within four years, same considerations would apply to a bar of third pregnancy

15
where two children are already there because when the entire world is faced with the problem
of population explosion it will not only be desirable but absolutely essential for every country
to see that the family planning programme is not only whipped up but maintained at
sufficient levels so as to meet the danger of over population which, if not controlled, may
lead to serious social and economic problems throughout the world.”

It would, by now, be multiplying repetitions to point out, yet again, that at the heart of the
Court’s reasoning are stereotypes: here, it is the stereotype that the responsibility for bringing
up children lies with women, and the assumption the burden of controlling population
explosion (!) may also be imposed only upon women.

Lastly, the Court struck down the absolute discretion vested in the Director to terminate the
employment of Air Hostesses after they reached the age of 35, holding that the uncanalised
discretion amounted to excessive delegation of power.

The above analysis should be sufficient to bring out the discontents of Air India vs Nargesh
Mirza. To recap:

(1) In holding that AFPs and AHs constituted separate classes, and therefore different service
conditions were valid, the Court ignored the fact that the classes themselves were constituted
along the lines of sex. In effect, the Court used the fact that women’s service conditions were
inferior to men’s to hold that the two constituted separate cadres in service law, and that
therefore the difference in service conditions were justified. This argument is viciously
circular.

(2) In holding that the Government’s notification under Section 16 of the Equal
Remuneration Act was dispositive of the question of whether the Regulations discriminated
on the grounds of sex, the Court made three mistakes: first, extending the scope of Section 16
to the Constitution; secondly, treating the government’s statement on a question of
fundamental rights as conclusive; and thirdly, ignoring the difference between the phrases
“on the basis of” (ERA), and “on grounds… of“. (Article 15)

(3) The Court made no attempt to show why, independent of the Government’s notification
under Section 16 of the ERA, Articles 15(1) and 16(2) were not applicable to the facts at
hand.

16
(4) The Court’s arbitrariness enquiry ended up perpetuating and endorsing the exact
stereotypes that discrimination law is designed to obliterate. These included the role of
women as care-givers and vessels of “family planning”.

Holding

The court held the clauses regarding retirement and pregnancy as unconstitutional and thus
ordered for them to be struck down. Furthermore, Regulation 47 experienced a similar fate,
for it was found that the said regulation suffered from excessive delegation of powers without
any reasonable guidelines to police the same.

Critique

While the aforesaid judgment is an obvious improvement on the ruling of the Khosla
Tribunal (1965)  which grounded its holding, in terms of the age criterion being fairly
imposed owing to aspects such as the attractiveness of young air hostesses being an effective
tool to deal with passengers. However, it still leaves open a plethora of questions on a
multitude of grounds which have been dealt with later sex discrimination based litigations
such as  MacKinnon Mackenzie v. Audrey d’Costa (1987)[2]  to  Rajendra Grover v. Union
Of India.(2007)[3] to limited successes.

Keeping the obvious overtures of a sexist judgment aside, which seem to be posed all over
this judgment, there appear to be deep-seated problems on the question of conflict between
administrative legislation and the constitution in this matter. For starters, when the Court
seeks to debunk the violation of Article 14, the logic employed instead of examining a sex-
based classification as being violative of Art.14,15,16.  Instead seeks to make a distinction
between the sexes on the basis of showing the ancillary aspects such as qualification, salary
and other features which appear to be different. Thus by creating a contorted understanding
of reasonable classification, the applicability of constitutional remedies to an administrative
regulation is vitiated.

Another vagary appears when the question of reasonable classification/ intelligible

differential is applied to the distinction created on the basis of the sex when the question on
violation Article 15 and 16 arises. The judgment surprisingly never seeks to substantiate the

17
additional criterion which is used alongside the distinction made on sex, to rebuke the
assertion of the violation of Article 16.  An aspect which was glaring omission in this
judgment. This line of contorted reasoning is evident even when the judgment seeks reliance
on American cases. Decisions such as Mary Ann Turner v. Department of Employment
Security 423 U.S. 44[4]  &  Frontiero v. Richardson 411 U.S. 677[5], whose ruling were
completely opposite to the matter at hand.

CONCLUSION:-
All in all, Nargesh Mirza is a highly disappointing judgment in the annals of Indian sex
discrimination law. As we shall see in subsequent essays, its harm was not only in the
reasoning that it employed, but its role as precedent. Some of the most important sex
discrimination cases in India (and elsewhere) have been brought to the Court in the context of
service and labour law. Nargesh Mirza initiated a constitutional jurisprudence where the rules
of service law overshadowed rigorous constitutional analysis, and were even giving primacy
over the latter. This, as we shall see, would lead to a progressive undermining of
constitutional analysis under the non-discrimination guarantee of Articles 15 and 16.

To conclude with the earlier mentioned point, the sexist nature of the judgment is brought
into full focus on multiple occasions. On such instance being when the court rejects the one
child basis for retirement for air hostess and instead advocates for an amendment which
introduces the option of retirement upon the birth of the third child. While the court gave this
reasoning a deified outlook by coloring it with a public health basis, however, in my opinion,
it only seeks to make seeks to reassert a stereotypical notion regarding gender roles.        

18
BIBLIOGRAPHY:-

 BOOKS

 WEBSITES:-
1. https://www.financialexpress.com/archive/a-gender-bending-judgement/88692/
2. https://www.indiatoday.in/magazine/nation/story/19810515-case-of-alleged-inequality-
between-male-and-female-cabin-crew-of-indian-airlines-and-air-india-805945-2014-02-25
3. https://blog.ipleaders.in/a-case-note-examining-the-first-de-facto-case-of-sexual-
discrimination-at-the-work-place/
4. https://www.legallyindia.com/views/entry/sex-discrimination-and-the-constitution-vi-the-
discontents-of-air-india-v-nargesh-mirza

19