Citation: AIR 2015 SC 839
Case Type: Writ Petition(Civil)
Case No: 78 of 2013
Petitioner: Charu Khurana
Respondents: Union of India
Decided On: 10-11-2014
Statues Referred: Constitution of India
- Vishaka V. State of Rajasthan.
- Olga tellis V. Bombay Municipal Corp.
- Pradeep Jain V. Union of India.
Bench: Dipak Mishra J, Uday U. Lalit J.
The petitioner is a Hollywood trained make-up artist and hair dresser, who applied for a membership card to Cine Costume Make-up Artists and Hair Dresser Association, as a make-up artist and hair dresser.
But the Association refused her the card and compelled to delete the words “make-up artists” from the application.
But when she was found working as a make-up artists, she was slapped with a fine of 26,500. Afterwhich the Petitioner filed a complaint to the Federation of Western Cine Employees.
The Federation sent a communication to the Association to explain reason for refusal of membership of the Petitioner as “make-up artist”.
In a reply to the Federation, the Association rejected the contention of the Petitioner as totally incorrect. That it was the rule of the Association to disallow women as make-up artist and there is no question of discrimination as men were allowed only a make-up artist and not as hair dresser.
The Trade Union had directed the Association to delete such clause as it was illegal and unconstitutional. But the Association maintained adamant approach by not deleting it.
Whether denying the Petitioner the membership as a make-up artist on the ground being a women was valid?
Also whether not being a domicile of Maharashtra could constitute a valid ground for denying membership to the petitioner.
Contentions by Parties:
The discriminatory clause incorporated by the Association has hampered the occupation of the Petitioner as a make-up artist. This has created a hazard on the livelihood.
The Association has stubbornly made a distinction between male and female by classifying them as make-up artist and hair dresser respectively, as a result of which the women are qualified and eligible as make-up artist never became make-up artist.
The requirement for being a domicile of the State of Maharashtra was completely unconstitutional.
Such discriminatory clause is hit by Article 14, 21, and 19(1)(g) of the Constitution of India.
The application was not rejected because of her being a women but on the ground that the bye-laws of the Association stated that the position of hair dresser shall be restricted to women only and that of make-up artist for men only.
The reason being that if make-up artist position is granted to women also then it would be impossible for men to work as a make-up artist because one would not be interested to engage with a male make-up artist. As far as the position of hair dresser is concerned it is exclusively reserved for women. Such policy ensures the equal opportunity for all to earn livelihood.
The Apex Court’s bench comprising of Dipak Mishra J, Uday U. Lalit J, held the following:
The covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 spells out the tools by which women rights are not violated and that they are conferred same rights. India is a party to the convention and is committed to actualise them. The convention held that right to work is an inalienable right of all human being.
Article 39-A (d) provides equal pay for equal work for both men and women. The fundamental rights and Directive principle of state policy are the two wheel of the chariot in establishing an egalitarian social order.
Hon’ble Court held that India is a welfare State and hence it is its duty to promote justice and equal opportunity to all its citizen and to check that one is not deprived by reason of economic disparity. Therefore it is the duty of the State to ensure that men and women have the right to adequate livelihood.
Hon’ble court held that the Association is not the state within the meaning of the Article 12 of the Constitution of India.
The right to livelihood is an integral part of the right to life. If a person is deprived of his right to livelihood he would be directly deprived of his right to life which is guaranteed by the Constitution of India under Article 21. And therefore the Association by its bye-laws cannot foul play the rights Under Article 21.
The Vishaka Case enumerates gender equality as a fundamental right. The discrimination done by the Association is wholly inconceivable.
The Court strictly took note of the adamant attitude of the Association for not deleting the violative Clauses from its bye-laws after being ordered to do so by the Registrar of Trade Union. Such act would have in ordinary circumstances lead to cancellation of registration but the court does not intent to do so.
The Court quashed the violative clauses and directed that the Petitioner shall be registered as the member of the Association within four weeks. And that the Trade Union shall take care of it. The Police Authority was made responsible to look whether the Petitioner was not harassed due to hurdle created by the Association.
Rule of Law:
Article 39-A of the Constitution provides that the State shall formulate its policies in such a way that all the citizen equally have adequate means of livelihood. Clause (d) provides for equal pay for equal work for both men and women. Clause (e) provides that he health and strength of the men and women and workers shall not be abused.
Article 14 provides that the State shall not deny anybody “equality before law and equal protection of law” within the territory of India. Equality before law implies a negative concept as to the fact that everybody shall be treated equal in front of law without any privilege in favour of any individual.
While equal protection of law imply a positive concept that equal must be treated similarly and un-equals differently.
Article 19(1)(g) provides for freedom of profession or to carry out any occupation or trade or business. However it is not a absolute right and can be restricted by Article19(6).
Article 21 provides that no person shall be deprived of his life and personal liberty except according to the procedure established by law. It is available to both citizen as well as non-citizen.
It is relaxing to note that the Supreme Court always and everytime stands firm with the Constitution of India, ensuring that it is not infringed at any point of time. Giving the Articles of the Constitution its true and wide interpretation is a paramount duty which the Court never fails to perform so as to ensure that the Justice, Social, Economic and Equality of status as assured by the Preamble of the Constitution of India to its beloved citizen, is always upheld.