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Ends without Means or Reasons: Charu Khurana v/s Union of India

The greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of judges to do justice in each individual case.

The judgement discussed herein is a living testament to Seervai's quote. Then Chief Justice Dipak Misra, writing on behalf of the bench, did great justice to the women make up artists. It stole massive headlines from all the leading newspapers. It also garnered numerous tweets from famous personalities, extolling the wonderful judgement of the court. However for all the justice it did to the women make up artists, and rightly so, it didn't do enough justice to the administration of justice and constitutional interpretation. It is a case in point example of ends not justifying the means. The ends of the judgement, does not justify the legal reasoning adopted.

On a lighter note, it is surprising to see the Supreme Court taking the case in its own hands when it could have gone by the precedents and taken recourse in the doctrine of alternate remedies. The court could have deferred the matter to be taken up by the Registrar of Trade Unions or to the High court. However, seeing the court rush to the justice to the women make up artists is reassuring.

The court invalidated the clause 4 of the bye laws of the Cine Costume Make-Up Artists and Hair Dressers Association which prohibited women to become a member of this association. Clause 4, of the bye laws state that:
Membership of the Association shall comprise of Make-up men, Costume men, and Hair Dressers who were admitted as members by the Association�

The petitioners assailed the validity of these bye-laws as being violative of Article 14, 19(1)(g) and 21 of the Indian Constitution and no doubt they were incredibly discriminatory. Frankly, it is shocking to know that such a bye law existed for nearly six decades.

The scrutiny does not arise for the reason of it not being discriminatory, but for its reasoning. The legal reasoning that it endorses is, on the very best, a good-hearted action. The court notes that the association is not a state under Article 12, but a private entity. And since the constitution hasn't yet allowed a complete horizontal conception of Fundamental rights, private entities are generally under no legal duty to guarantee Fundamental Rights to individuals. To counter this juxtaposition of the concept of fundamental rights, the petitioners argued for a horizontal conception of Fundamental rights. However, the court, explored two, extremely faulty points of reasoning to invalidate the aforementioned clause.

The Inconsistency which isn't

Clause 4 of the bye law in question states a specific criteria for membership limiting it only for the men, effectively prohibiting all women to become a member of this association. The court remarked that since Section 21 of the Trade Union Act allowed only age to be a qualifying factor for membership, the discriminatory clause of membership stands inconsistent with the parent Act. It also added that since the bye laws does not carry does not carry forward any distinction between male or female, it indubitably violates Section 21 of the Act.

However, the reasoning of the court suffers great semantic barriers as well. It conveniently forgets to read the entire provision of the section. Section 21 of the Act states that: �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�'.

The court says that the rules of the association cannot go against the provisions of the Trade Union Act. Whereas the said section ,itself, employs the use of the phrase �subject to any rules of the trade union to the contrary'. This phrase of the section provides leeway for the trade union to draft any set of rules over and beyond the provisions of the Act regarding its membership.

In delivering such a reasoning, it classifies the criteria of membership to be exhaustive, age to be precise, which is obviously not the case here. It puts forward a very dangerous precedent where the only criteria for membership to an association can be age. So, in effect, even a CEO of a company can also be a member of the Trade Union. The position of the court is prima facie illogical.

Struck between vertical and horizontal enforcement of Fundamental Rights

The Constitution, as a construct of classical jurisprudence, stipulated a vertical relationship between the state and the individual, wherein the former would be the guarantor of the fundamental rights. It acts as a check upon State power. Barring a few fundamental rights such as Article 15, 17 and 23, the fundamental rights are guaranteed by State or state instrumentality, as under the definition of Article 12. It has since been explored and widened with myriad tests to classify what is a state.

The most common and popular of these is the Pradeep Kumar Biswas test. Under this test, for any entity to be a state under Article 12, there must be a functional, financial and administrative control of the State over it.

In relation to the present case, the association did not satisfy the conditions of the Pradeep Kumar Biswas test. Hence, it was not a state and neither amenable to a writ petition unless the violation of Article 15, 17 and 23 is presumed.

This case granted the court the opportunity to explore the facet of introducing any horizontal enforcement of fundamental rights. However, the court brought forward a reasoning on its non-existent limbs. It stated 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.

Essentially, the court means to say that since the association is registered under the Trade Union Act, which derives its authority from the Constitution, the association is also bound to follow the constitutional mandate. The thought process it follows is that it construes registration under the statutory regulations to mean an endorsement of state sanction. And applying that logic, the state sanction cannot be against the constitution. This is in stark contrast to the US Supreme Court case Shelly v Kramer, wherein the court refused to enforce the constitutionality of a racially segregated covenant, but falls shy of striking down such covenant for the reason of it being private.

At best, this reasoning of the court could be argued to be a form of indirect horizontality but the court fails to spell that out too. Assuming this line of interpretation is adopted, this interpretation could be applied to all the registrations done under any statutory act. In effect, any company, association, etc will have to fall in line with all of the constitutional mandate. This line of interpretation, as good as it may sound, does fall on few hurdles.

Firstly, allowing this reasoning, it asks to transform the private sector into a welfare sector. Going hand in hand with the state in fulfilling the social responsibilities. And as a result, blurring the boundaries between either. For example, if the parliament passes a bill for reservation in the private sector, every company will have to leave out seats as well as promotions on the basis of reservations. This would severely impede the efficient nature of private sector, and would be synonymous to nationalising these structures. Thereby, making the epitome of capitalism, act like a socialist.

Secondly, this judgement, breaks away from the Zoroastrian Co-operative Housing Society Ltd case and opens a pandora box leading to strange conclusions. The precedent of Zoroastrian Co-operative case allowed a housing society to discriminate on the basis of religion. It was done so under the protection of freedom to form association. But here, as Gautam Bhatia explains, the Court makes no effort to distinguish what appears to be directly contrary precedent, and does not even acknowledge the tensions between Article 19(1)(c)'s guarantee of the freedom of association, and enforcing membership requirements on private associations.

He further exposes the �strange conclusions' of the judgement by giving a few examples. He says that suppose someone wants to start a society for the Protection of the Rights of Besieged Men, and registers it under the Societies Registration Act (or analogous legislation). Membership is limited to men. Is that a violation of the sex-discrimination clause of the Constitution? Or supposedly someone wants to start a society for the Protection and Promotion of the Jedi Faith, under the by-laws of which, members must forswear prior allegiance to all organised religions, and embrace the Jedi faith. Will that also be a violation of the Constitution's religious non-discrimination clause?

This distinction is one which, again, requires hefty legal consideration. Drawing such lines of difference between Freedom of association and non discriminatory clauses would need a magnifying glass. Non discriminatory clauses limited to the workplace could prove to be viable settlement.

Moving forward to the last doubts that remain, the attraction of Article 15 to the table by the court. The court invalidates the clause 4 of the judgment on the basis of it being violative of Article 15, 19(1)(g) and 21. We can understand the employment of Article 19(1)(g) and Article 21 as the clause violates a woman's right to conduct business and thus affects her livelihood.

But the introduction of Article 15 is questionable. Article 15(2) states that:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
  1. access to shops, public restaurants, hotels and palaces of public entertainment; or
  2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

In relation to the present case, the discriminatory membership to an association would have faced the wrath of Article 15(2) but since association does not fall under any of the given options in Article 15(2), Article 15 is not attracted.

The author of the judgement, I think, knew the fallacy of his reasoning, and tries to justify his stance by providing heaps of gender justice cases such as Vishaka, AIIMS Student Union case, etc where Article 15 was attracted.

The court goes beyond its powers, and beyond the scope of the constitution to bring up this judgement. Admittedly, the bye laws were an incredibly discriminating provision. It being alive for almost six decades sends waves of disappointment as to how did it survive for this long. To see such provision existence, leaves open the possibility that more such clauses might exist elsewhere as well. The unwritten voices of the judgement subtly shows the dilemma of Justice Misra in the absence of an apt Civil Rights law (similar to the US's Civil Rights Act of 1964). And in the absence of such,, this egregious burden to do justice shall always fall on the court.

The court was, on a previous occasion, faced with a similar dilemma. On that occasion, Justice Mohan endorsed to expand the scope of enforcement of Part III of the constitution by holding private bodies performing public functions subject to public law obligations. Unfortunately, this approach has never been explored by the court in detail again and Justice Misra, too, has followed this very tradition of the court. Thus, this approach has since, remained nascent in the Indian Constitutional framework.

Sensing the association's position in the make-up industry, the court could have questioned the nature of such a trade union � as to how can a monopoly be allowed to function as a suzerain body that can grant license regarding who can work in the industry of not. as to the whether a trade union could work as a paramount licensing body An alternate approach, as suggested by Prahant Narang, could have been to defer the question to the Competition Commission of India since the rules of the association were clearly anti-competitive under Section 3 / 4 of the Competition Act, 2002 towards new entrants.

At the end of this dark cave of legal entanglements, we see �justice' being delivered, at least for the women make-up artists and hair dressers.

  1. Charu Khurana v Union of India, 2014 SCC ONLINE SC 900

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