Charu Khurana v. Union of India (2015) 1 SCC 192
JUDGES: Dipak Misra and Uday Umesh Lalit, JJ.
Date of Decision: 10-11-2014
The petitioners, who are qualified make-up artists willing to work as make-up artist in the film industry in the State of Maharashtra, filed a Writ Petition under Article 32 of the Constitution of India before the Supreme Court questioning the constitutionality of the decision of Cine Costume Make-up Artists and Hair Dressers Association of Mumbai not allowing them to be registered as members of the Association on two grounds, namely, i. they are women and ii. have not remained in the State of Maharashtra for a span of five years.
Gender discrimination in giving access to employment.
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. In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 the Constitution Bench has found that the Fundamental Rights and the Directive Principles are the two quilts of the chariot in establishing the egalitarian social order. In Vishaka v. State of Rajasthan, (1997) 6 SCC 241 the Supreme Court opined that the meaning and content of Fundamental Rights in the Constitution are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Court observed that when there is violation of gender justice and working woman is sexually harassed, there is violation of the fundamental rights of gender justice and it is clear violation of the rights under Articles 14, 15 and 21 of the Constitution. Thus, the aforesaid decision unequivocally recognises gender equality as a fundamental right.
In the instant case the discrimination done by the Association, a registered trade union, 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.
Regarding the issue of residence, in the case at hand, it does not relate to reservation but relates to having access to employment. The concept of domicile, as stipulated, has no rationale. It invites the frown of Articles 14, 15 and 21 of the Constitution of India. In the matter of public employment there has to be special provision. A trade union, which is registered under the statutory provision, cannot make a rule/regulation/bye-law contrary to the constitutional mandate and the statutory authority cannot accept the same. Be it stated, realising this, the Registrar of Trade Unions had directed the Association to delete the said rules. Despite the said direction, the Association has not done so.
It is really shocking that the Association has maintained such an adamantine attitude. In ordinary circumstances, the Registrar would have been directed to cancel the registration but we do not intend to do so. As the clauses relating to the membership and the domicile, namely, clause 4 and 6, are violative of the statutory provisions and the constitutional mandate and taking further note of the fact that the Registrar would have been, in normal circumstances, directed by us requiring the trade union to delete the clauses, we quash the said clauses and further direct that the petitioners shall be registered as members of the 5th respondent within four weeks. 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, for harassment of a woman is absolutely unconscionable, unacceptable and intolerable.