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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.78 OF 2013
Charu Khurana & Others
Versus
Union of India & Others
Citation;(2015)1 SCC192
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
2
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.
appears
though
there
has
been
formal
As it
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
3
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
4
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 equality.
The
Covenant
on
the
Elimination
of
All
Forms
of
Discrimination Against Women (CEDAW), 1979, is the
5
United Nations’ landmark treaty marking the struggle for
women’s right.
It is regarded as the Bill of Rights for
women. It graphically puts what constitutes discrimination
against women and spells out tools so that women’s rights
are not violated and they are conferred the same rights.
8.
The equality principles were reaffirmed in the
Second World Conference on Human Rights at Vienna in
June 1993 and in the Fourth World Conference on Women
held in Beijing in 1995.
India was a party to this
Convention and other Declarations and is committed to
actualize them. In 1993 Conference, gender-based violence
and all categories of sexual harassment and exploitation
were condemned. A part of the Resolution reads thus: -
“The human rights of women and of the girl
child are an inalienable, integral and indivisible part
of universal human rights. The World Conference
on Human Rights urges governments, institutions,
intergovernmental
and
non-governmental
organizations to intensify their efforts for the
protection of human rights of women and the girl
child.” (Emphasis supplied)
9.
The other relevant International Instruments on
Women are : (i) Universal Declaration of Human Rights
(1948), (ii) Convention on the Political Rights of Women
(1952), (iii) International Covenant on Civil and Political
6
Rights (1966), (iv) International Covenant on Economic,
Social and Cultural Rights (1966), (v) Declaration on the
Elimination of All Forms of Discrimination against Women
(1967), (vi) Declaration on the Protection of Women and
Children in Emergency and Armed Conflict (1974), (vii)
Inter-American Convention for the Prevention, Punishment
and Elimination of Violence against Women (1995), (viii)
Universal
Declaration
on
Democracy
(1997),
and
(ix)
Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women (1999).
10.
In Valsamma Paul (Mrs) v. Cochin University1, a
two-Judge Bench observed thus:
“Human rights are derived from the dignity and
worth inherent in the human person. Human rights
and fundamental freedoms have been reiterated in
the Universal Declaration of Human Rights.
Democracy, development and respect for human
rights
and
fundamental
freedoms
are
interdependent and have mutual reinforcement. The
human rights for women, including girl child are,
therefore, inalienable, integral and an indivisible
part of universal human rights. The full
development of personality and fundamental
freedoms and equal participation by women in
political, social, economic and cultural life are
concomitants for national development, social and
family stability and growth — cultural, social and
economical. All forms of discrimination on grounds
1
(1996) 3 SCC 545
7
of gender is violative of fundamental freedoms and
human rights. Convention for Elimination of all
forms of Discrimination Against Women (for short,
“CEDAW”) was ratified by the UNO on 18-12-1979
and the Government of India had ratified as an
active participant on 19-6-1993 acceded to CEDAW
and reiterated that discrimination against women
violates the principles of equality of rights and
respect for human dignity and it is an obstacle to
the participation on equal terms with men in the
political, social, economic and cultural life of their
country; it hampers the growth of the personality
from society and family, making more difficult for
the full development of potentialities of women in
the service of the respective countries and of
humanity.”
11.
Article 1 of the said Convention reads as follows:
“For the purposes of the present Convention, the
term “discrimination against women” shall mean
any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any
other field.”
12.
Sub Article (1) of Article 11 of the Convention,
which has its own signification, is as follows:
“1. States Parties shall take all appropriate
measures to eliminate discrimination against
women in the field of employment in order to
ensure, on a basis of equality of men and women,
the same rights, in particular:
(a) The right to work as an inalienable right of all
human beings;
8
(b) The
right
to
the
same
employment
opportunities, including the application of the same
criteria for selection in matters of employment;
(c) The right to free choice of profession and
employment, the right to promotion, job security
and all benefits and conditions of service and the
right to receive vocational training and retraining,
including apprenticeships, advanced vocational
training and recurrent training;
(d) The right to equal remuneration, including
benefits, and to equal treatment in respect of work
of equal value, as well as equality of treatment in
the evaluation of the quality of work;
(e) The right to social security, particularly in
cases of retirement, unemployment, sickness,
invalidity and old age and other incapacity to work,
as well as the right to paid leave;
(f)
The right to protection of health and to safety
in working conditions, including the safeguarding of
the function of reproduction.”
13.
On a perusal of the Articles of the aforesaid
Convention, it is clear as crystal that apart from right to
work being an inalienable right of all human beings, it has
commended the right to same employment opportunity,
including the application of same criteria for selection in
matters of employment and all steps to be taken to eliminate
discrimination against women in the field of employment in
order to ensure equality among man and woman.
founded on social security and many other facets.
It is
9
14.
In Madhu Kishwar v. State of Bihar,2
this
Court had stated that Indian women have suffered and are
suffering discrimination in silence.
A poignant line reads
thus:
“28. ... Self-sacrifice and self-denial are their
nobility and fortitude and yet they have been
subjected to all inequities, indignities, inequality
and discrimination.” (SCC p. 148, para 28)
15.
In Voluntary Health Assn. of Punjab v. Union of
India3, it has been observed that it would not be an
exaggeration to say that a society that does not respect its
women cannot be treated to be civilised. In the first part of
the last century Swami Vivekanand had said:
“Just as a bird could not fly with one wing only, a
nation would not march forward if the women are
left behind.”
16.
In the aforesaid backdrop, we are required to
scrutinise the factual exposition and the relief sought. 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
2
3
(1996) 5 SCC 125
(2013) 4 SCC 1
10
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 (for short, “the Federation”).
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.
17.
As the facts would unfurl, on receipt of the letter
dated
10.7.2009
from
the
respondent
no.6,
the
5 th
respondent sent a reply on 01.08.2009. It reads as follows:
“To
Hon'ble General Secretary,
Federation of Western India
Cine Employees,
Andheri (West),
11
Mumbai.
Sir,
Ref:- Your letter bearing Ref. No.FWICE/CCMA/
670/2009 Date 10/7/2009.
We are in receipt of your aforesaid letter and in
response hereto, we would like to write to you as
under:-
1.
The complaint made by Charu Khurana is
totally incorrect. She had desired to have two cards,
viz. Make-up artist Card and Hair-dresser's card.
She was duly informed that there was no system of
issuing two cards simultaneously.
On being
appraised of the said position, she of her own deleted
the words “Make-up artist” in her application and
counter-signed the same and had agreed to apply
and take only hair Dresser's card. This is evident
from the copy of the application made by Charu
Khurana. A copy of the said application is enclosed
herewith for your immediate reference.
2.
Insofar
as
the
allegations
of
alleged
discrimination and not issuing of cards to female
members as make-up artist, are concerned, it is
stated that make-up artist cards are issued only to
male members from the date of formation of the
Association, no make-up artist card has been issued
to female members till date. This is done to ensure
that male members are not deprived of working as
make-up artists. If the female members are given
make-up artist card then it will become impossible
for the male members to get work as in make-up
artists and they will lose their sources of livelihood
and will be deprived of their earnings to support
themselves and their families because no one would
be interest to engage the services of a male make-up
artist if the female make-up artists are available,
looking to the human tendency.
It would be
appropriate to writ to you that so far as hair dressers
cards are concerned, that is exclusively given to
females and never not issued to male members at all.
12
There is absolutely no question of discrimination
practiced by us and everybody is given equal
opportunity to earn their livelihood by exploiting
their best talents.”
18.
After the receipt of the said letter, the 6th
respondent sent a communication dated 12.08.2009 to
respondent no.5 stating, inter alia, as follows:
“Here we would like to remind you that the FWICE
is non-political organisation which does not allow
any discrimination on the basis of religion, caste,
community, gender etc.
As such, the Gender
Discrimination Policy followed by your association
against Female Make-up Artistes as mentioned
above, is in direct conflict with the basis Aims and
Objects of the FWICE, and is a clear act of violation
of the Constitution of India and several other laws
in force, and also of the FWICE Constitution, and is
against the interests of FWICE.
Consequently,
please be informed that in view of innumerable
earlier directives and resolutions from FWICE and
AIFCE in the said matter of membership to female
make-up artist, we have no other option but to give
our permission to Ms. Charu Khurana to work as a
make-up
artist
in
Films/TV
Serials/Music
Albums/ad films till she gets regular membership of
your Association.
Please note that our said permission shall be valid
for all regions affiliated to the All India Film
Employees Confederation (AIFEC)”
19.
In view of the aforesaid communication, 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
13
and this permission was valid for all the regions affiliated to
the All India Film Employees Confederation. Thereafter, the
5th respondent intimated the Federation that the decision
taken by it was not binding on the Association.
In that
context, it is stated thus:
“Ms. Charu Khurana had specifically made an
application for Hair Dressers Category. It is the rule
of association to disallow the female members to
work as Make-up Artists. It is further to note here
that Ms. Charu Khurana is also not exception to
that the said rule was introduced for the betterment
of the association and not to discriminate on the
basis of gender. Ms. Charu Khurana has been
called for the interview on 11/09/2009. She did not
made herself available for the interview.
Her
application to the association is still pending with
the association. However it's clarifies here that she
is not a member of association and hence not
allowed to work as a Make-up Artist in any field.
Hence your permission to Ms. Charu Khurana to
work as Make-up Artist in Film/TV serials/Music
Album/Ad films is illegal and I do hereby request
you to kindly withdraw the said letter at your
earliest and intimate the same to Ms. Charu
Khurana immediately.
Needless to state here that even if you have chosen
to allow her to continue with the work, than the
appropriate and strict action will be initiated
against her of which please take note of.”
20.
The petitioners in the petition have referred to
certain conferences held and how the petitioner no. 1 has
been treated at other places, but to deal with the lis, it is
not necessary to advert to the same. The Association, as
14
has been asseverated, is registered under the Trade Unions
Act, 1926 (for brevity, ‘the Act’).
21.
After notices were issued to the parties, the
Registrar of Trade Unions, Maharashtra, respondent no.4
herein, through its counsel submitted that after receiving
the complaint from the petitioners, it had taken up the issue
with the respondent No.5 and issued directions to delete the
clause that has given rise to discrimination, which is not
constitutionally permissible, but the Association has not
taken any steps.
22.
When the matter was taken up on 4th July, 2014,
certain aspects were noted, which are as follows:
It is submitted by Ms. Kalra that the two grounds
which are being taken up by this kind of trade
unions are that women cannot get the status of
make-up persons and they can only practice as hair
dressers. It is very fairly put forth by her that the
petitioners have no objection if the male artists are
called hair dressers as well as make-up men. In
essence, the submission of learned counsel is that
this differentiation which has been made by the
association despite the directions made by the
Registrar of Trade Unions have not only let them
feel humiliated but also affected their constitutional
rights to be treated with equality, apart from the
various affirmative provisions contained in the
Constitution of India.”
23.
To put the controversy to rest, as far as the film
15
industry in Mumbai in the State of Maharashtra is
concerned, we have heard Ms. Jyotika Kalra, learned
counsel for the petitioners, Mr. L.N. Rao, learned Additional
Solicitor
General,
and
Mr.
Maninder
Singh,
learned
Additional Solicitor General for Union of India, Mrs.
Meenakshi Arora, learned senior counsel for National
Commission for Women, Mrs. Asha G. Nair, learned counsel
for the State of Maharashtra and Mr. K.H. Holambe Patil,
learned counsel for the respondent No.5, the Association.
24.
It
is
submitted
by
learned
counsel
for
the
petitioners that the 5th respondent has incorporated the
discriminatory clause as a consequence of which their rights
to carry on their avocation is absolutely hampered and there
is no such justification for the classification, for the
petitioners are qualified to work as make-up artist.
It is
urged by her unless they have the membership card, they
would not be engaged as make-up artist and this has
created a hazard in earning their livelihood. It is urged by
her that the Association has obstinately been making a
distinction between the male and female by categorising
them as make-up artists and hair dressers respectively, as a
result of which, the women, who are eligible and qualified to
16
become make-up artist, never become make-up artist and
only function as hair dressers. The learned counsel would
also contend that the women have been harassed at the
workplace whenever they get an engagement as a make-up
artist. It is also canvassed by Ms. Kalra that the eligibility
criteria that he/she must be a resident of Maharashtra for
five years is absolutely unconstitutional and despite the
direction of the Registrar of Trade Unions, the said clauses
are not deleted and hence interference of this Court is called
for. It is further put forth by her that similar situation has
been prevalent in Tamil Nadu, Andhra Pradesh, Karnataka,
Kerala and many other parts of the country.
25.
Mr. L.N. Rao, learned Additional Solicitor General
submitted that this Court in the case of Vishaka and
Others vs. State of Rajasthan and Others4, has referred
to the 1993 Convention and framed certain guidelines
regard being had to the sexual harassment at work places.
It is contended by him that in Vishaka case, a three-Judge
Bench has observed that with the increasing awareness and
emphasis on gender justice, there is increase in the effort to
guard against such violations and in the present case the
4
(1997) 6 SCC 241
17
discrimination which is founded on the basis of gender
deserves to be lancinated. It is canvassed by him that the
clauses relating to discrimination and the action taken by
the Association are squarely hit by Articles 14, 19(1)(g) and
21 of the Constitution of India.
It is submitted by the
learned Additional Solicitor General that when a trade union
is brought into existence, it has to function only after they
get a licence from the Registrar of trade union and when the
clauses
in
the
constitutionally
constitution
unacceptable,
of trade
they are
union
under
are
legal
obligation to be deleted and it is an unfortunate case that
where the Association, the respondent No.5 herein has
expressed its adamantine propensity not to delete the same.
Mr. Rao has also contended that the spirit of Article 39A of
the Constitution of India should also be taken into
consideration while dealing with the controversy.
26.
Ms. Meenakshi Arora, learned senior counsel
appearing for the Commission has submitted that this Court
while acting as a protector of the rights, should never permit
such an Association to perpetuate such kind of illegality, by
which the women artists are deprived of employment and
that too not for any acceptable or normative reasons, but
18
solely because of some kind of obsessive gender bias.
27.
Learned counsel appearing for the respondent
No.5 has submitted that the application was not rejected
because she was a woman, but on the other grounds. He
has drawn our attention to the communication dated 14th
December, 2009, to which we shall advert to at a later stage.
28.
The sixty-four thousand dollar question that
emanates for consideration in this writ petition whether the
female artists, who are eligible, can be deprived to work in
the film industry as make-up man and only be permitted to
work as hair dressers, solely because the Association, the
respondent No.5 herein, 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 and nonchalantly stood embedded on its
stand.
29.
The unconcerned and insouciant stand is depicted
from the communication dated 14.12.2009.
The relevant
part is as follows:
“We are pleased to inform you that you had applied
19
for the membership as a Hair Dresser on 10
January, 2009. All the Certificates are from Delhi
and courses certificates are from Mumbai & Delhi.
You had not provided any original documents of
Ration card, Telephone Bills or any other proof of
been in Maharashtra for 5 years or more than that.
You had provided the Xerox Copy of HP Gas Bill,
but it is issued on yours mother named, as Mrs.
Neelam Khurana. You have Election Card, Passport
from Delhi itself.
You have provided the bank certificate as a proof of
been in Maharashtra for 9 years but Bank can be
operated from any part of India. And Bank itself
had specifically said that “This certificate is issued
at the party's own request without any risk &
responsibility on the part of the bank or any of its
signing officials.”
We are sorry to inform you, as per our Constitution
Rules you don't have any residential proof for being
in Maharashtra for 5 years.
Therefore, your
application for membership has been rejected.”
The aforesaid letter read in conjunction with the
communication
made
on
01.10.2009
which
we
have
reproduced hereinbefore, have created an impediment on
the part of the petitioners to become members of the
Association as make-up artists, which has deprived them
the access to have employment, despite being qualified, in
the films industry/TV serials/music albums/ad films. Their
entry at the threshold is banned.
The barriers, as is
perceivable, are two-fold, first, the petitioners are women,
and second, they have not produced the domicile certificates
20
to the effect that they have resided in the State of
Maharashtra for five years.
30.
First, we shall take up the issue of discrimination
on the ground of gender.
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.
In Minerva Mills Ltd. V.
Union of India5, 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 Society for Unaided Private Schools of
Rajasthan V. Union of India and Another6, it has been
held that the Court is required to interpret the Fundamental
Rights in the light of the Directive Principles.
5
6
(1980) 3 SCC 625
(2012) 6 SCC 1
The said
21
principle was reiterated by the Constitution Bench in
Paramati Educational and Cultural Trust (Registered)
and Others V. Union of India and others7.
31.
In this regard, it is apposite to refer to two
passages from Ramlila Maidan Incident, In Re8, wherein
it has been observed thus:
“While these are the guaranteed fundamental rights,
Article 38, under the directive principles of State
policy contained in Part IV of the Constitution,
places a constitutional obligation upon the State to
strive to promote the welfare of the people by
securing and protecting, as effectively as it may, a
social order in which justice—social, economic and
political—shall inform all the institutions of the
national life. Article 37 makes the directive
principles of State policy fundamental in the
governance of the country and provides that it shall
be the duty of the State to apply these principles in
making laws.
With the development of law, even certain matters
covered under this Part relating to directive
principles have been uplifted to the status of
fundamental rights, for instance, the right to
education. Though this right forms part of the
directive principles of State policy, compulsory and
primary education has been treated as a part of
Article 21 of the Constitution of India by the courts,
which consequently led to the enactment of the
Right of Children to Free and Compulsory
Education Act, 2009.
Article 51-A deals with the fundamental duties of
the citizens. It, inter alia, postulates that it shall be
the duty of every citizen of India to abide by the
7
8
(2014) 8 SCC 1
(2012) 5 SCC 1
22
Constitution, to promote harmony and the spirit of
common brotherhood, to safeguard public property
and to abjure violence.
Thus, a common thread runs through Parts III, IV
and IV-A of the Constitution of India. One Part
enumerates the fundamental rights, the second
declares the fundamental principles of governance
and the third lays down the fundamental duties of
the citizens. While interpreting any of these
provisions, it shall always be advisable to examine
the scope and impact of such interpretation on all
the three constitutional aspects emerging from
these Parts.”
32.
The purpose of referring to the same is to
understand and appreciate how the Directive Principles of
State Policy and the Fundamental Duties enshrined under
Article 51A have been elevated by the interpretative process
of this Court.
The Directive Principles have been regarded
as soul of the Constitution as India is a welfare State. At
this juncture, it is apt to notice the view expressed by a two-
Judge Bench of this Court in Ashoka Smokeless Coal
India (P) Ltd. V. Union of India9 wherein it has been laid
down that the Directive Principles of State Policy provide for
a guidance to interpretation of fundamental rights of a
citizen as also the statutory rights.
33.
9
In this context, a reference may be made to Article
(2007) 2 SCC 640
23
51-A. Clauses (e) and (j) and provide as follows:
“(e) 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;
(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;”
34.
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
24
achievement.
In AIIMS Students’ Union V. AIIMS and
others10, a three-Judge Bench, while dealing with the
reservation in All India Institute of Medical Sciences,
observed:
“Pushing the protection of reservation beyond the
primary level betrays the bigwigs’ desire to keep the
crippled crippled for ever. Rabindra Nath Tagore’s
vision of a free India cannot be complete unless
“knowledge is free” and “tireless striving stretches
its arms towards perfection”. Almost a quarter
century after the people of India have given the
Constitution unto themselves, a chapter on
fundamental duties came to be incorporated in the
Constitution. Fundamental duties, as defined in
Article 51-A, are not made enforceable by a writ of
court just as the fundamental rights are, but it
cannot be lost sight of that “duties” in Part IV-A
Article 51-A are prefixed by the same word
“fundamental” which was prefixed by the founding
fathers of the Constitution to “rights” in Part III.
Every citizen of India is fundamentally obligated to
develop a scientific temper and humanism. He is
fundamentally duty-bound to strive towards
excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher
levels of endeavour and achievements. State is, all
the citizens placed together and hence though
Article 51-A does not expressly cast any
fundamental duty on the State, the fact remains
that the duty of every citizen of India is the
collective duty of the State.”
And, thereafter opined,
“Fundamental duties, though not enforceable by a
writ of the court, yet provide a valuable guide and
aid to interpretation of constitutional and legal
issues. In case of doubt or choice, people’s wish as
10
(2002) 1 SCC 428
25
manifested through Article 51-A, can serve as a
guide not only for resolving the issue but also for
constructing or moulding the relief to be given by
the
courts.
Constitutional
enactment
of
fundamental duties, if it has to have any meaning,
must be used by courts as a tool to tab, even a
taboo, on State action drifting away from
constitutional values.”
35.
From the aforesaid enunciation of law, it is clear
as day that the duty of a citizen has been extended to the
collective duty of the State.
To elaborate, it becomes the
duty of the State to provide for opportunities and not to
curtail the opportunities.
36.
At this juncture, we must appreciably note that
Mr. Rao, learned Additional Solicitor General has submitted
with all fairness at his command that State is making all
efforts to frame such policies so that men and women are
treated equally and they can have the rights and means of
livelihood and no room is allowed to conceive any gender
bias.
Learned Additional Solicitor General would submit
that the policies are framed by the State to fulfil the goals of
the Constitution.
37.
Having referred to the aforesaid provisions of the
Constitution, and taking note of the submissions, we may
26
presently refer to Articles 14, 19(1)(g) and 21 of the
Constitution of India.
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 by
this Court.
38.
At this stage, it is seemly to note that the
Association is not a State under Article 12 of the
Constitution of India.
It is submitted by Ms. Meenakshi
Arora, learned senior counsel appearing for National
Commission for Women, that the Association is not a State
or may not be amenable to writ jurisdiction under Article
226 of the Constitution of India, but its constitution and the
bye-laws which have been accepted/ratified by the Registrar
of Trade Unions, who have been authorised by the
competent Government cannot violate the mandate of the
Act or any of the constitutional commands. In essence, the
27
submission of the learned senior counsel is, it has to be in
consonance
with
the
statutory
framework
and
the
Association, by incorporating certain stipulations, cannot
create a discrimination for women which is contrary to the
international treaty, that has been ratified by India and
further debar all qualified and eligible women to enter into
the film industry to carry their profession as make-up
artists, which in the ultimate eventuate, stifle and smother
their sources of livelihood.
Mr. Rao, learned Additional
Solicitor General, supporting the said submission, would
further contend that this Court in Vishaka (supra) has
clearly observed that violation of Fundamental Rights of
gender equality “Right to Life and Liberty” and “right to
practise profession”, attract the remedy under Article 32 for
enforcement of these fundamental rights of women.
39.
Before we dwell upon the relevant provisions of the
Act, we may profitably delve into the concept of equality in
the backdrop of gender justice. In Mrs. Neera Mathur V.
Life Insurance Corporation of India and Anr.11, a female
candidate was required to furnish information about her
menstrual period, last date of menstruation, pregnancy and
11
(1992) 1 SCC 286
28
miscarriage.
The Court declared that calling of such
information are indeed embarrassing if not humiliating. The
Court directed that the employer i.e. Life Insurance
Corporation would do well to delete such columns in the
declaration.
In Maya Devi12, the requirement that a
married woman should obtain her husband’s consent before
applying for public employment was held invalid and
unconstitutional.
The
Court
observed
that
such
a
requirement is an anachronistic obstacle to women’s
equality.
40.
In Mackinnon Mackenzie and Co. Ltd. V.
Audrey D’Costa13, the Court was deliberating the issue of
equal pay for equal work in the context of female
stenographers and male stenographers.
Dealing with the
aspect of discrimination, the Court opined:
“It may be that the management was not employing
any male as a Confidential Stenographer attached
to the senior executives in its establishment and
that there was no transfer of Confidential Lady
Stenographers to the general pool of Stenographers
where males were working. It, however, ought not to
make any difference for purposes of the application
of the Act when once it is established that the lady
Stenographers were doing practically the same kind
12
13
(1986) 1 SCR 743
(1987) 2 SCC 469
29
of work which the male Stenographers were
discharging. The employer is bound to pay the same
remuneration to both of them irrespective of the
place where they were working unless it is shown
that the women are not fit to do the work of the
male Stenographers. Nor can the management
deliberately create such conditions of work only
with the object of driving away women from a
particular type of work which they can otherwise
perform with the object of paying them less
remuneration elsewhere in its establishment”.
41.
The aforesaid pronouncement clearly spells out
that there cannot be any discrimination solely on the
ground of gender. It is apt to note here that 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. Their active participation in the
decision making process has been accentuated upon and
the secondary rule which was historically given to women
30
has been sought to be metamorphosed to the primary one.
The
sustenance
of
gender
justice
is
achievement of intrinsic human rights.
the
cultivated
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.
42.
Having regard to the aforesaid legal exposition and
factually exposé, the legal provisions of the Act are to be
scanned. Section 5 of the 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. It also provides for certain aspects some of which
31
are, the whole of the objects for which the trade union has
been established and the whole of the purposes for which
the general funds of the Trade Union shall be applicable.
Section 10 deals with the cancellation of registration.
It
provides that the certificate of registration of a Trade Union
can be withdrawn or cancelled by the Registrar if the
certificate has been obtained by fraud or mistake or Trade
Union has ceased to exist or wilfully and after notice from
the Registrar contravened any provision of the Act or
allowed any rule to continue in force inconsistent with the
provision or rescinded any rule providing for any manner as
required by Section 6. At this juncture, it is apt to refer to
Sections 21 and 21A, which read as under:-
21. Any person who has attained the age of fifteen
years may be a member of a registered Trade Union
subject to any rules of the Trade Union to the
contrary, and may, subject as aforesaid, enjoy all
the rights of a member and execute all instruments
and give all acquittances necessary to be executed
or given under the rules:
21A - Disqualifications of office-bearers of Trade
Unions
(1) A person shall be disqualified for being chosen
as, and for being member of the executive or any
other office-bearer of a registered Trade Union if-
(i) he has not attained the age of eighteen years;
(ii) he has been convicted by a Court in India of any
offence involving moral turpitude and sentenced to
imprisonment, unless a period of five years has
32
elapsed since his release.
(2) Any member of the executive or other office-
bearer of a registered Trade Union who, before the
commencement of the Indian Trade Unions
(Amendment) Act, 1964, has been convicted of any
offence involving moral turpitude and sentenced to
imprisonment, shall on the date of such
commencement cease to be such member or office-
bearer unless a period of five years has elapsed
since his release before that date.]
[(3) In its application to the State of Jammu and
Kashmir, reference in subsection (2) to the
commencement of the Indian Trade Unions
(Amendment) Act, 1964, shall be construed as
reference to the commencement of this Act in the
said State.]
The aforesaid provisions make it graphically clear
that 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.
43.
As is evincible, the respondent no.5-Association
has been registered under the Trade Unions Act having
registration No.1871. Its aims and objects are as follows:
a)
To organize and unite the Motion Picture
Costume Artist’s Make-Up Artist’s and Hair
Dressers and their Assistants with a view to protect
their interests.
b)
To secure to the members fair conditions of life
and services and to protect them from unfair labour
33
practice in the Trade, keeping the relations with
other Trade Unions in the Film Industry.
c)
To try to standardize minimum wages and
contractual remuneration, as devised from time to
time.
d)
To try by all legal means to redress their
grievances.
e)
To endeavour to regulate the relations of the
members among themselves as and for their
employers, and to secure them fair conditions of life
service and career.
f)
To endeavour to secure compensation for
members in case of accidents under the Workmen’s
Compensation Act.
g)
To
provide
the
members
against
unemployment, sickness, infantry, old age if funds
permit.
h)
To provide legal assistants to members in
respect of matters arising out of or incidental to
their employment if in the opinion of the Executive
Committee it is found necessary and expedient.
i)
To endeavour to render aid to the members
during any strike or lockout brought accident with
the sanction of the Association.
j)
To co-operate and federate with other
Organisations in India and abroad having similar
object.
k)
To help in accordance with Indian Trade
Unions Act, working classes in India and outside in
the promotion of the objects mentioned in this
clause.
44.
The Association has its own bye-laws. Clause 4 of
34
the bye-laws reads as follows:
“Membership: Membership of the Association shall
comprise of Make-up men, Costume men, and Hair
Dressers who were admitted as members by the
Association & who continue to be members 14.4.85
and all those who shall be admitted hereafter under
clauses 6 & 7 of the constitution of the Association
including the membership in Family Relief fund,
provided he/she agrees & abide by the rules & sub-
rules that may form by the Association from time to
time.”
Clause 6 deals with admission of new members.
It
reads as follows:
ADMISSION OF NEW MEMBERS:-
Any person desiring to become the member of the
Association who has attained the age of majority of
18 and who possess a good moral character shall
send an application in prescribed form and duly
recommended by two members with its prescribed
fees.
A.
Applicant should have been a resident of
Maharashtra at least for 5 years.
B.
Son or Daughter of members who have
completed 15 years of membership shall be eligible
to be enrolled as members of the Association,
provided they fulfil other conditions relating to age
and domicile status of 5 years in the State of
Maharashtra.
45.
These bye-laws have been certified by the Registrar
35
of Trade Unions in exercise of the statutory power. Clause
4, as is demonstrable, 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 to us 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.
In this regard, we may refer to certain
authorities. In Francis Coralie Mullin v. Administrator,
Union Territory of Delhi14, it has been held thus:
“The fundamental right to life which is the most
precious human right and which forms the ark of all
other rights must therefore be interpreted in a
broad and expansive spirit so as to invest it with
14
(1981) 1 SCC 608
36
significance and vitality which may endure for years
to come and enhance the dignity of the individual
and the worth of the human person”.
46.
In Olga Tellis v. Bombay Municipal Corpn.15,
the Constitution Bench speaking through Chandrachud,
C.J., observed thus:
“An equally important facet of that right is the right
to livelihood because, no person can live without the
means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of
depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of
abrogation. Such deprivation would not only denude
the life of its effective content and meaningfulness
but it would make life impossible to live. And yet,
such deprivation would not have to be in
accordance with the procedure established by law, if
the right to livelihood is not regarded as a part of
the right to life. That, which alone makes it possible
to live, leave aside what makes life livable, must be
deemed to be an integral component of the right to
life. Deprive a person of his right to livelihood and
you shall have deprived him of his life”.
47.
Recently, in Centre for Environment & Food
Security v. Union of India16, a three-Judge Bench had
opined as follows:
“The Framers of the Constitution, in the Preamble
to the Constitution, guaranteed to secure to its
15
16
(1985) 3 SCC 545
(2011) 5 SCC 676
37
citizens justice social, economic and political as well
as equality of status and opportunity but the “right
to employment” was not incorporated in Part III of
the Constitution as a fundamental right. By judicial
pronouncements, the Courts expanded the scope of
Article 21 of the Constitution of India and included
various facets of life as rights protected under the
said article despite the fact that they had not been
incorporated by specific language in Part III by the
Framers of the Constitution”.
The said views were expressed in the context of the
scheme of National Rural Employment Guarantee Act, 2005.
48.
From
the
aforesaid
enunciation
of
law,
signification of right to livelihood gets clearly spelt out.
the
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.
49.
Presently, we shall advert to the law laid down in
Vishaka case. The Court referred to the 1993 Treaty and
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.
In that context, the Court
observed thus:
“The international conventions and norms are to be
38
read into them in the absence of enacted domestic
law occupying the fields when there is no
inconsistency between them. It is now an accepted
rule of judicial construction that regard must be
had to international conventions and norms fro
construing domestic law when there is no
inconsistency between them and there is a void in
the domestic law. The High Court of Australia in
Minister for Immigration and Ethnic Affairs vs. Teoh.
128 ALR 535, has recognised the concept of
legitimate expectation of its observance in the
absence of contrary legislative provision, even in the
absence of a Bill of Rights in the Constitution of
Australia”.
The
three-Judge
Bench,
while
noting
the
increasing awareness on gender justice, took note of the
increase in the effort to guard against such violations. 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.
50.
Thus,
the
aforesaid
decision
unequivocally
recognises gender equality as a fundamental right.
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.
39
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.
51.
Having dealt with the concept of discrimination,
now we shall dwell upon the second facet, that is, denial of
the issue of card to work as make-up artists on the ground
that one is not a resident in the State of Mahrashtra.
Pradeep Jain v. Union of India17, it has been held thus:
“What is fundamental, as an enduring value of our
polity, is guarantee to each of equal opportunity to
unfold the full potential of his personality. Anyone
anywhere, humble or high, agrestic or urban, man
or woman, whatever be his language or religion,
place of birth or residence, is entitled to be afforded
equal chance for admission to any secular
educational course for cultural growth, training
facility, speciality or employment. It would run
counter to the basic principle of equality before the
law and equal protection of the law if a citizen by
reason of his residence in State A, which ordinarily
in the commonality of cases, would be the result of
his birth in a place situate within that State, should
17
(1984) 3 SCC 654
In
40
have opportunity for education or advancement
which is denied to another citizen because he
happens to be resident in State B. It is axiomatic
that talent is not the monopoly of the residents of
any particular State; it is more or less evenly
distributed and given proper opportunity and
environment, everyone has a prospect of rising to
the peak. What is necessary is equality of
opportunity and that cannot be made dependent
upon where a citizen resides. If every citizen is
afforded
equal opportunity, genetically and
environmentally, to develop his potential, he will be
able in his own way to manifest his faculties fully
leading to all round improvement in excellence. The
philosophy and pragmatism of universal excellence
through equality of opportunity for education and
advancement across the nation is part of our
founding faith and constitutional creed”.
52.
Recently,
in
Nikhil
Himthani
v.
State
of
Uttarakhand18, the Court, while dealing with eligibility
criteria for appointment to the post-graduate medical/dental
course, fixed by the Department of Medical Education,
Government of Uttrakhand, Dehradun, adverted to clause 2
and 3 which basically related to domicile of Uttrakhand. In
the said context, the Court, placing reliance on Saurabh
Chaudri
V.
Union of India19 and in that backdrop,
decided the constitutional validity of clauses 1, 2 and 3 of
the eligibility criteria in the information bulletin. Clause 5
of the bulletin prescribed that eligible candidates who get
18
19
(2013) 10 SCC 237
(2003) 11 SCC 146
41
selected through NEET-PG 2013/NEET (MDS)-2013 will be
given admission on available seats in postgraduate courses
according to their rank in State merit list, made available by
NBE/MCI/DCI/AIIMS and the seats available at that time.
Clause 6 stipulated that having name in the State merit list
o eligible candidates provided by MCI/DCI/NBE/AIIMS will
not confer the right on the candidate for getting PG seats
unless he/she fulfils all the eligibility criteria regarding
domicile,
reservation
policy,
provisions
of
bond,
etc
mentioned in the information bulletin and/or amendments
made thereafter till the time of counselling. Clause 1 of the
eligibility criteria stipulated that a candidate must have
passed an MBBS examination from Uttrakhand in any of the
colleges named therein and must have been admitted
through the competitive examination, namely, Uttrakhand
State PMT. The petitioner in the said case was not admitted
through the Uttrakhand State PMT to the medical college
and, therefore, did not fulfil the eligibility criteria for
admission to the medical post graduate course under clause
1 of the eligibility criteria. Clause 2 of the eligibility criteria
stipulated that the candidates who were domicile of
Uttrakhand and passed MBBS examination from medical
42
colleges from other States and were admitted through 15%
All India quota, were also eligible for admission to the post
graduate medical courses. But as the petitioner was not a
domicile of Uttrakhand and passed MBBS examination from
a medical college of other States, was not eligible for
admission to the post-graduate course. Under Clause 3 of
the eligibility criteria, who were domicile of Uttrakhand and
had passed MBBS from medical colleges of other States in
India, were admitted through pre-medical test conducted by
the State Government as they were eligible for admission.
While dealing with these clauses, the Court noted the
submission of learned counsel for the State of Uttrakhand
that as per the Constitution Bench decision in Saurabh
Chaudri
(supra) institutional preference is a matter of
State Policy which alone can be invalidated in the event of
being violative of Article 14 of the Constitution of India and
as the State of Uttrakhand was entitled to make its own
Policy with regard to institutional preference, the clauses
could not be invalidated.
The Court posed the question
whether the clauses 1, 2 and 3 of the eligibility criteria in
the information bulletin are ultra vires of Article 14 of the
Constitution of India. In that context, the Court held:
43
“We are thus of the considered opinion that to exclude
the petitioner from consideration on the basis of his
merit only on the ground that he was not admitted to
the MBBS course through the Uttarakhand PMT
would be to deny him equality of opportunity in
matter of admission to the postgraduate medical
course and to violate his right to equality under
Article 14 of the Constitution as explained by this
Court in Pradeep Jain v. Union of India.
We now come to Clauses 2 and 3 of the eligibility
criteria in the Information Bulletin. Under Clauses 2
and 3, a domicile of Uttarakhand who has passed
MBBS from a medical college of some other State
having been admitted either through the 15% all-India
quota or through the pre-medical test conducted by
the State Government concerned has been made
eligible for admission to a postgraduate medical
course in the State quota. Obviously, a candidate who
is not a domicile of Uttarakhand State is not eligible
for admission to the postgraduate course under
Clauses 2 and 3 of the eligibility criteria. Preference,
therefore is given only on the basis of residence or
domicile in the State of Uttarakhand under Clauses 2
and 3 of the eligibility criteria and such preference on
the basis of residence or domicile within a State has
been held to be violative of Article 14 of the
Constitution in Pradeep Jain v. Union of India and
Magan Mehrotra v. Union of India20.
xxx
xxx
xxx
xxx
Thus, it will be clear from what has been held by the
three-Judge Bench of this Court in Magan Mehrotra v.
Union of India that no preference can be given to the
candidates on the basis of domicile to compete for the
institutional quota of the State if such candidates
have done their MBBS course in colleges outside the
State in view of the decisions of this Court in Pradeep
Jain v. Union of India. Hence, Clauses 2 and 3 of the
eligibility criteria in the Information Bulletin are also
20
(2003) 11 SCC 186
44
violative of Article 14 of the Constitution”.
53.
In the case at hand, it does not relate to
reservation but relates to having access to employment.
Here, as we find the concept of domicile, as stipulated, has
no rationale. It invites the frown of Articles 14, 15 and 21 of
the Constitution of India. At this juncture, we must note
with profit, as submitted by Mr. Rao, learned Additional
Solicitor General that in the matter of public employment
there has to be special provision.
He has drawn our
attention to Article 371D(1) of the Constitution. It reads as
follows:
“371D. Special provisions with respect to the
State of Andhra Pradesh
(1) The President may, by order made with respect to
the State of Andhra Pradesh, provide, having regard to
the requirements of the State as a whole, for equitable
opportunities and facilities for the people belonging to
different parts of the State, in the matter of public
employment and in the matter of education, and
different provisions may be made for various parts of
the State”.
It is submitted by him that the State is extremely
careful to see that equitable opportunities and facilities are
provided to all the citizens of the country.
Unless the
45
special provision is made, a trade union, which is registered
under
the
statutory
rule/regulation/bye-law
provision,
contrary
to
cannot
the
make
a
constitutional
mandate and the statutory authority cannot accept the
same.
Be it stated, realising this, the Registrar of Trade
Unions had directed the 5th respondent to delete the said
rules. Despite the said direction, the 5th respondent has not
done so.
54.
It is really shocking that the respondent no.5 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
46
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.
Our directions close the
matter as far as the State of Maharashtra is concerned.
55.
Let the matter be listed in the first week of
January, 2015, in respect of other States.
.........................J.
(Dipak Misra)
..........................J.
(Uday Umesh Lalit)
New Delhi;
November 10, 2014.
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