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SUPREME COURT OF INDIA
Dipak Misra, Uday Umesh Lalit, JJ.
Charu Khurana & Others – Petitioners
Versus
Union of India & Others – Respondents
WRIT PETITION (CIVIL) NO.78 OF 2013
Decided On : 10-11-2014
(2012) 6 SCC 1; (2014) 8 SCC 1; (2012) 5 SCC 1; (2007) 2 SCC 640 – Relied upon
(b) Constitution of India – Article 51A(e) – Clause (e) ordains renouncing of all practices derogatory to the dignity of women – It also imposes a duty on the State to provide for opportunities. (Para 34, 35)
(2002) 1 SCC 428 – Relied upon
(c) Constitution of India – Article 32 r/w Articles 14, 19(1)(g) and 21 – Respondent no. 5 Association not a State within the meaning of Article 12 – Writ may not lie against it under Article 226 or 32 – However, it is a trade union – Registrar of Trade Unions is duty bound to ensure that rules of respondent association were in conformity with Constitutional provisions – Violation thereof viz. Articles 14, 19(1)(g) and 21 attract the remedy under Article 32 – By the offending clause petitioners’ Fundamental Rights of gender equality “Right to Life and Liberty” and “right to practise profession” are frustrated – Present petition under Article 32 held maintainable. (Para 38)
(d) Constitution of India – Article 14 and 16 – Gender justice – There cannot be any discrimination solely on the ground of gender. (Para 41)
(1992) 1 SCC 286; (1986) 1 SCR 743; (1987) 2 SCC 469 – Relied upon
(e) Trade Unions Act – Section 21 r/w clause 4, Bye laws – Admission of members – Membership to comprise only of male persons viz. Make-up men, Costume men, and Hair Dressers – Denying entry to women – Violative of section 21 of the Act – Such denial affecting livelihood of aspirant – Violative of Article 21 of the Constitution – A clause in the bye-laws of a trade union, accepted by the statutory authority, cannot play foul of Article 21. (Para 45, 48)
(1981) 1 SCC 608; (1985) 3 SCC 545; (2011) 5 SCC 676 – Relied upon
(f) Constitution of India – Article 21 – Gender equality – Recognised as fundamental right in Vishaka case – Therefore respondent no. 5 Association which is a trade union registered under the Trade Union Act cannot discriminate people on the basis of sex. (Para 50)
(1997) 6 SCC 241; (1996) 3 SCC 545; (1996) 5 SCC 125; (2013) 4 SCC 1 – Relied upon
(g) Constitution of India – Articles 14, 15 and 21 – Requirement of domicile for membership – Respondent no. 5 introducing domicile clause requiring 5 years stay in Maharashtra – No special law like Article 371D for Andhra Pradesh made in that regard made either by State of Centre – The respondent no. 5 Trade union making this rule and the Registrar Trade Unions also accepting it – Violative of Articles 14, 15 and 21 – Respondent no. 5 trade union cannot make a rule/regulation/bye-law contrary to the constitutional mandate and the statutory authority cannot accept the same – Registrar directing respondent no. 5 to delete the rule – Respondent no. 5 not complying – Offending clauses 4 and 6 quashed – Directions given to Registrar and Police (Para 53, 54)
(1984) 3 SCC 654; (2013) 10 SCC 237; (2003) 11 SCC 146 – Relied upon
Facts of the case:
The petitioner no.1 is a Hollywood trained Make-up Artist and Hair Stylist and on 10.01.2009, she submitted an application to the respondent no.5-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 on 09.07.2009 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/-. Being aggrieved by the action, the petitioner no.1 filed a complaint with the 6th respondent, Federation of Western India Cine Employees. The respondent no.6, in its turn, sent a communication on 10.07.2009 requiring the 5th respondent to explain the reasons for refusal of membership of the petitioner no.1 as a make-up artist. The other female artists also sent similar complaints to the 6th respondent.
The respondent no.6 vide letter dated 4.9.2009 granted permission to petitioner no.1 to work as Make-up artist in Cine Films/ TV serials etc. till she gets regular membership and this permission was valid for all the regions affiliated to the All India Film Employees Confederation.
Respondent no. 5 did not agree to the same and threatened to take stern action against the petitioner.
Finding of the Court:
It will be the obligation of the Registrar of Trade Unions to see that they are registered as make-up artists. If the Association would create any hurdle, it will be obligatory on the part of the police administration to see that the female make-up artists are not harassed in any manner whatsoever.
Result:
Case closed.
JUDGMENT
Dipak Misra, J.
The present writ petition preferred under Article 32 of the Constitution of India, exposes with luminosity the prevalence of gender inequality in the film industry, which compels one to contemplate whether the fundamental conception of gender empowerment and gender justice have been actualised despite number of legislations and progressive outlook in society or behind the liberal exterior, there is a façade which gets uncurtained on apposite discernment. The stubbornness of the 5th respondent, Cine Costume Make-up Artists and Hair Dressers Association (for short, “Association”) of Mumbai, as is manifest, thought it appropriate to maintain its pertinacity, possibly being determined not to give an inch to the petitioners who are qualified make-up artists by allowing them to become make-up artists as members of the Association on two grounds, namely, they are women and have not remained in the State of Maharashtra for a span of five years. The first ground indubitably offends the concept of gender justice. As it appears though there has been formal removal of institutionalized discrimination, yet the mindset and the attitude ingrained in the subconscious have not been erased. Women still face all kinds of discrimination and prejudice. The days of yore when women were treated as fragile, feeble, dependent and subordinate to men, should have been a matter of history, but it has not been so, as it seems.
2. Fight for the rights of women may be difficult to trace in history but it can be stated with certitude that there were lone and vocal voices at many a time raising battles for the rights of women and claiming equal treatment. Initially, in the West, it was a fight to get the right to vote and the debate was absolutely ineffective and, in a way, sterile. In 1792, in England, Mary Wollstonecraft in “A Vindication of the Rights of Women” advanced a spirited plea for claiming equality for, “the Oppressed half of the Species”. In 1869, “In Subjection of Women” John Stuart Mill stated, “the subordination of one sex to the other ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other”. On March 18, 1869 Susan B. Anthony proclaimed “Join the union girls, and together say, “Equal pay, for Equal work”. The same personality again spoke in July 1871: “Women must not depend upon the protection of man but must be taught to protect themselves”.
3. Giving emphasis on the role of women, Ralf Waldo Emerson, the famous American Man of Letters, stated “A sufficient measure of civilization is the influence of the good women”. Speaking about the democracy in America, Alexa De Tocqueville wrote thus: “If I were asked .... to what singular prosperity and growing strength of that people (Americans) ought mainly to be attributed. I should reply; to the superiority of their women”. One of the greatest Germans has said: “The Eternal Feminine draws us upwards”.
4. Lord Denning in his book Due Process of Law has observed that a woman feels as keenly thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom - develop her personality to the full – as a man. When she marries, she does not become the husband’s servant but his equal partner. If his work is more important in life of the community, her’s is more important in the life of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.
5. At one point, the U.N. Secretary General, Kofi Annan, had stated "Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance."
6. Long back Charles Fourier had stated "The extension of women's rights is the basic principle of all social progress."
7. At this juncture, we may refer to some international conventions and treaties on gender equ
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