Supreme Court of India
CHARU KHURANA & OTHERSversusUNION OF INDIA & OTHERS
- Citation
- 2014 INSC 1024
- Decided
- 10 November 2014
- Disposal
- Hearing Adjourned
- Bench
- DIPAK MISRA
Holding
A trade union cannot impose gender‑based or domicile‑based restrictions that contravene Articles 14, 15, 21 and the Trade Unions Act, 1926; such clauses are void and the petitioners must be admitted as make‑up artists.
Summary
The petitioners, female make‑up artists, challenged the Cine Costume Make‑up Artists and Hair Dressers Association's bye‑laws that barred women from obtaining make‑up artist cards and required a five‑year Maharashtra residence. The Court examined the constitutional guarantees of equality (Arts. 14, 15, 21), the right to livelihood (Art. 21), and the directive principle of equal opportunity (Art. 39A), and held that the Trade Unions Act, 1926 does not permit gender or domicile discrimination. It found the Association's clauses violative of both statutory provisions (Secs. 5, 6, 21, 21A) and constitutional norms, and therefore void. The Registrar’s direction to delete the clauses was affirmed, and the Court ordered that the petitioners be registered as make‑up artists within four weeks, with enforcement mechanisms for Maharashtra. The judgment reinforces gender‑neutral access to employment and the prohibition of arbitrary residence requirements in trade union membership.
Issues considered
- The validity of gender‑based restrictions in the Association’s membership rules under Articles 14, 15 and 21 of the Constitution.
- Whether a five‑year domicile requirement for trade‑union membership is constitutionally permissible.
- Whether the Trade Unions Act, 1926 permits such discriminatory provisions.
- Whether the Registrar of Trade Unions has the power to direct deletion of the offending clauses.
Legislation cited
- Trade Unions Act, 1926s. 10, s. 21, s. 21A, s. 5, s. 6
Subjects
gender discriminationtrade union lawright to livelihoodequality before lawArticle 14Article 21film industrymake‑up artistdomicile requirementconstitutional law
Judgment
[2014] 12 S.C.R. 259
CHARU KHURANA & OTHERS A
v.
UNION OF INDIA & OTHERS
{Writ Petition {Civil) No. 78 of 2013)
NOVEMBER. 10, 2014
B
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
CONSTITUTION OF IND/A, 1950: Articles 14, 21, 39A,
51A - Whether the female artists, who are eligible, can be
deprived to work in the film industry as make-up man and only c
be permitted to work as hair dressers, solely because the fifth ·
respondent-Association which is controlled by the Trade
Unions Act, 1926, has incorporated a clause relating to this
kind of classification and further stipulated that a person to
work must be a resident of Maharashtra for a period of 5 years 0
- Held: It is the duty of the State to frame policies so that men
and women have the right to adequate means of livelihood -
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 E
and qualified, it is well nigh impossible to conceive of equality
- The statutory provisions of the Trade Union Act do not make
a distinction between man and woman - The Association has
been registered under thf! Trade Unions Act - The
Association whose rules have been accepted, cannot take the
route of the discrimination solely on the basis of sex - It really F
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 gender bias writ large and totally impermissible and G
wholly unacceptable - The concept of domicile also has no
rationale and invites frown of Articles 14, 15 and 21 - Registrar
of Trade Unions had rightly directed Association to delete the
said rules - Trade Union Act, 1986 - Bias - Gender bias.
259 H
260 SUPREME COURT REPORTS (2014] 12 S.C.R.
A Disposing of the matter so far as the State of
Maharashtra is concerned, the Court
HELD: 1.1 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
8
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
C tender age of children are riot abused and that citizens
are not forced by economic necessity to enter into
avocations unsuited to their age or strength. Article 51-A
clause (e) pr~scribes that all practices derogatory to the
dignity of women are to be renounced. Dignity is the
D quintessential quality of a personality and a human frame
always desires to live in the mansion of dignity, for it is a
highly cherished value. Clause 0) 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
E 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
F towards excellence in all spheres of individual and
collective activity so that the nation constantly rises to
higher levels of endeavour and achievement. [Paras 30,
34] [277-E-G; 280-8-D]
Valsamma Paul (Mrs) v. Cochin University 1996 (1)
G SCR 128: (1996) 3 SCC 545; Madhu Kishwar v. State of
Bihar 1996 (1) Suppl. SCR 442: (1996) 5 sec 125;
Voluntary Health Assn. of Punjab v. Union of India (2013) 4
SCC 1; Vishaka and Others vs. State of Rajasthan and
Others 1997 (3) Suppl. SCR 404: (1997) 6 SCC 241;
H
CHARU KHURANA v. UNION OF INDIA 261
Minerva Mills Ltd. v. Union of India 1981 (1) SCR 206 : A
(1980) 3 SCC 625; Society for Unaided Private Schools of '
Rajasthan v. Union of India and Another 2012 (2 ) SCR 715
: (2012) 6 SCC 1; Paramati Educational and Cultural Trust
(Registered) and Others v. Union of India and others (2014)
8 SCC 1; Ramli/a Maidan Incident, In Re 2012 (4) SCR 971: B
(2012) 5 SCC 1; Ashoka Smokeless Coal India (P) Ltd. v.
Union of India 2006 (9) Suppl. SCR 954 : (2007) 2 SCC
640; AllMS Students' Union v. A/IMS and others 2001 (2)
Suppl. SCR 79 : (2002) 1 SCC 428 - relied on.
1.2. Equality cannot be achieved unless there are C
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. Section 5 D
of the Trade Union Act, 1926 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 E
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 F
Act and the rules thereof. Section 21A of the Act only
prescribes the age and certain other qualifications. These
statutory provisions do not make a distinction between
a man and woman, and rightly so. The respondent no.5-
Association has been registered under the Trade Unions G
Act. 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. It is absolutely violative of
H
•
262 SUPREME COURT REPORTS (2014] 12 S.C.R ..·
A 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 gender bias writ large and is totally
impermissible. [Paras 41 to 43, 50] [284-F-H; 285-A-B; 286-
B D-E; 291-C-E] ·
Mrs. Neera Mathur v. Life Insurance Corporation of India
and Anr. 1991 (2) Suppl. SCR 146: (1992) 1 SCC 286; Maya
Devi (1986) 1 SCR 743; Mackinnon Mackenzie and Co. Ltd.
v. Audrey D'Costa 1987 (2) SCR 659: (1987) 2 SCC 469;
C .Francis Coralie Mullin v. Administrator, Union Territory of
Delhi 1981(2) SCR 516 : (1981) 1 SCC 608; Olga Tellis v.
Bombay Municipal Corpn. 1985(2) Suppl. SCR 51: (1985)
3 SCC 545; Centre for Environment & Food Security v. Union
of India (2011) 5 SCC 676 - relied on.
D 2. In the case at hand, it does not relate to reservation
but relates to having access to employment. Here, the
concept of domicile, as stipulated, has no rationale. It
invites the frown of Articles 14, 15 and 21 of the
Constitution of India. Unless the special provision is
E made, 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: The Registrar
of Trade Unions had rightly directed the 5th respondent
F to delete the said rules. [Para 53] [295-C, G-H; 296-A]
Pradeep Jain v. Union of India 1984 (3) SCR 942 :
(1984) 3 sec 654 - relied on.
Case Law Reference:
G 1996 (1) SCR 128 relied on Para 10
1996 (1) Suppl. SCR 442 relied on Para 14
,;,
(2013) 4 sec 1 relied on Para 15
H 1997 (3) Suppl. SCR404 relied on Para 25
CHARU KHURANA v. UNION OF INDIA 263
1981 (1) SCR 206 relied on Para 30 A
2012 (2) SCR 715 relied on Para 30
· (2014) s sec 1 relied on Para 30
2012 (4) SCR 971 relied on Para 31
B
2006 (9) Suppl. SCR954 relied on Para 32
2001 (2) Suppl. SCR79 relied on Para 34
1991 (2) Suppl. SCR 146 relied on Para 39
(1986) 1 SCR 743 relied on Para 39
c
1987 (2) SCR 659 relied on Para 40
1981 (2) SCR 516 relied on Para 45
1985 (2) Suppl. SCR 51 relied on Para 46 D
..
(2011 > 5 sec 676 relied on Para 47
1984 (3) SCR 942 relied on Para 51
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. E
78 of 2013.
Under Article 32 of the Constitution of India.
Jyotika Kalra for the Petitioners.
F
L. Nageswara Rao, Maninder Singh, ASG, Sridhar
Potaraju, S.A. H;:iseeb, Anil Katiyar, Binu Tamta, B.V. Bairam
Das, Sushma Suri, Asha G. Nair, Arvind S. Avhad, K.H.
Holambe Patil, T.S. Shanthi, Pravesh Thakur, Narendra Kumar,
Sajith P., Dr. Pooja Jha, Vishwa Pal Singh, Mridula Ray G
Bharadwaj, Poli Kataki for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The present writ petition preferred
under Article 32 of the Constitution of India, exposes with H
264 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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 fa9ade
8 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
C 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
D 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,
E 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
F 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"
ar.vanced a spirited plea for claiming equality for, "the
G 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
H proclaimed "Join the union girls, and together say, "Equal pay,
CHARU KHURANA v. UNION OF INDIA 265
[DIPAK MISRA, J.]
for Equal work". The same personality again spoke in July A
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 8
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 C
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 D
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 E
other. Neither is above the other or under the other. They are
equals.
5. At orie point, the U.N. Secretary General, Kofi Annan,
had stated "Gender equality is more than a goal in itself. It is a
F
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." G
7. At this juncture, we may refer to some international
conventions and treaties on gender eqL1ality. The Covenant on
the Elimination of All Forms of Discrimi, ,ation Against Women
(CEDAW), 1979, is the United Nations' landmark treaty H
266 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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.
B
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
c 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
D 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."
E (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)
F International Covenant on Civil and Political 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
G 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). .
H.
CHARU KHURANA v. UNION OF INDIA 267
[DIPAK MISRA, J.]
10. In Valsamma Paul (Mrs) v. Cochin University,' a A
two-Juqge 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,
B
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 C
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 of D
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 E
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 F
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: G
"For the purposes of the present Convention, the term
"discrimination against women" shall mean any distinction,
1. (1996) 3 sec 545. H
268 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
8 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
c 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;
D
(b) The right to the same employment opportunities,
including the application of the same criteria for selection
in matters of employment;
E (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;
F (d) The right to equal remuneration, including benefits, and
to equal treatment in respect of work of equal v;:ilue, as well
as equality of treatment in the evaluation of the quality of
work;
G (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
H
CHARU KHURANA v. UNION OF INDIA 269
[DIPAK MISRA, J.]
conditions, including the safeguarding of the function of A
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
8
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. It is founded C
on social security and many other facets.
14. In Madhu Kishwarv .. State of Bihar, this Court had
stated that Indian women have suffered and are suffering
discrimination in silence. A poignant line reads thus:
D
"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 E
lndia 3 , 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:
F
"Just as a bird could not fly with one wing only, a nation
would not march forward if the women are left behind."
-I 16. In the aforesaid backdrop, we are required to scrutinise
the factual exposition and the relief sought. The petitioner no.1 G
is a Hollywood trained Make-up Artist and Hair Stylist and on
10.01.2009, she submitted an application to the respondent
no.ScAssociation to issue her a membership card as a Make-
2. (1996) s sec 12s.
3 c2013) 4 sec 1. H
270 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
B artist and in her complairit 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
lio.1 filed a complaint with the 6th respondent, Federation of
Western India Cine Employees (for short, "the Federation"). The
c 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.
D 17. As the facts would unfurl, on receipt of the letter dated
10. 7.2009 from the respondent no.6, the 5th respondent sent
a reply on 01.08.2009. It reads as follows:
"To
Hon'ble General Secretary,
E
Federation of Western India
Cine Employees,
Andheri (West),
Mumbai.
F Sir,
Ref:- Your letter bearing Ref. No.FW!CE/CCMA/
670/2009 Date 10/7/2009.
We are in receipt of your aforesaid letter and in response
G 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
H
CHARU KHURANA v. UNION OF INDIA 271
[DIPAK MISRA, J.]
simultaneously. On being appraised of the said position, A
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 B
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 C
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 D
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 E
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. There is absolutely no question of
discrimination practiced by us and everybody is given F
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 G
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,
H
272 SUPREME COURT REPORTS [2014] 1-2 S.C.R.
A gender etc. As such, the Gender Discriminatlon 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
B
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
c 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
D 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
E 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. 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:
F
"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
G 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
H
..
CHARU KHURANA v. UNION OF INDIA 273
[DIPAK MISRA, J.]
association is still pending with the association. However A
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 B
Make-up Artist in FilmfTV 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 c
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 D
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 has been asseverated,
is registered under the Trade Unions Act, 1926 (for brevity, 'the
Act'). '
E
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.
F
-;' 22. When the matter was taken up on 4th July, 2014,
certain aspects were noted, which are as follows: G
~
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
H
274 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
B 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 industry
C 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
D 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
E 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
F 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
G respectively, as a result of which, the women, who are eligible
and qualified to 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
H
CHARU KHURANA v. UNION OF INDIA 275
[DIPAK MISRA, J.]
that he/she must be a resident of Maharashtra for five year's is A
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 8
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 Others", ha.s referred to the 1993
Convention and framed certain guidelines regard being had to C
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 discrimination which is founded on D
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 E
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 constitution of trade union are constitutionally
unacceptable, they are under legal obligation to be deleted and
it is an unfortunate case that where the Association, the F
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. G
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
4. (1997)6SCC241. H
276 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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 solely
because of some kind of obsessive gender bias.
27. Learned counsel appearing for the respondent No.5
8 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.
C 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
D 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.
E 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 for the
F 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.
G 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
H
CHARU KHURANA v. UNION OF INDIA 277
[DIPAK MISRA, J.]
any part of India. And Bank itself had specifically said that A
"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 B
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 C
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 D
is banned. The barriers, as is perceivable, are two-fold, first,
the petitioners are women, and second, they have not produced
the domicile certificates to the effect that they have resided in
the State of Maharashtra for five years.
E
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
F
(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 M.ills G
Ltd. V. Union of lndia 5, 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.
5. (1980) 3 sec 625. H
278 SUPREME COURT REPORTS (2014) 12 S.C.R.
A In Society for Unaided Private Schools of Rajasthan V.
Union of India and Anothe~. it has been held that the Court
is required to interpret the Fundamental Rights in the light of
the Directive Principles. The said principle was reiterated by
the Constitution Bench in Paramati Educational and Cultural
B Trust (Registered) and Others V. Union of India and
others'.
31. In this regard, it is apposite to refer to two passages
from Ramlila Maidan Incident, In Re6 , wherein it has been
C 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
D 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
E 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
F
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 I-
G Compulsory Education Act, 2009.
6. (2012)6SCC1.
1. c2014) s sec 1.
H s. c2012) 5 sec 1.
CHARU KHURANA v. UNION OF INDIA 279
[DIPAK MISRA, J.)
Article 51-A deals with the fundamental duties of the A
citizens. It, inter alia, postulates that it shall be the duty of
every citizen of India to abide by the Constitution, to
promote harmony and the spirit of common brotherhood,
to safeguard public property and to abjure violence.
B
Thus, a common thread runs through Parts Ill, IV and IV-A
of the Constitution of India. One Part enumerates the
fundamental rights, the second dec!ares the fundamental
principles of governance and the third lays down the
fundamental duties of the citizens. While interpreting any C
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 D
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 E
in Ashoka Smokeless Coal India (P) Ltd. V. Union of India"
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. In this context, a reference may be made to Article 51- F
A. Clauses (e) and G) 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 G
renounce practices derogatory to the dignity of women;
(j) to strive towards excellence in all spheres of individual
9. (2007) 2 sec 640. H
280 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
B 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
C 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 e·xcellence in all spheres of individual and collective
D activity so that the nation constantly rises to higher levels of
endeavour and achievement. In A/IMS Students' Union V.
A/IMS and others10 , a three-Judge Bench, while dealing with
the reservation in All India Institute of Medical Sciences,
observed:
E
"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".
F
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
G 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 Ill. Every citizen
H 10. (2002) 1 sec 428.
CHARU KHURANA v. UNION OF INDIA 281
[DIPAK MISRA, J.]
of India is fundamentally obligated to develop a scientific A
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- B
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,
c
"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 manifested through
Article 51-A, can serve as a guide not only for resolving D
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." E
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.
F
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 G
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
H
282 SUPREME COURT REPORTS [2014] 12 S.C.R.
A Constitution, and taking note of the submissions, we may
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
B 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
c 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
D 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
E the Act or any of the constitutional commands. In essence, the
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
F 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. I-
Rao, learned Additional Solicitor General, supporting the said
G 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.
H
CHARU KHURANA v. UNION OF INDIA 283
[DIPAK MISRA, J.)
39. Before we dwell upon the relevant provisions of the Act, A
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 B
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 Devi1 2 , the
requirement that a married woman should obtain her husband's c
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'Costa 13 , the Court was deliberating the issue of equal pay D
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 E
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 F
of the application of the Act when once it is established
that the lady Stenographers were doing practically the
same kind 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 G
where they were working unless it is shown that the women
11. (1992) 1 sec 286.
12. (1986) 1 SCR 743.
13. (1987) 2 sec 469. H
284 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
B 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
C 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
D 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
E accentuated upon and the secondary rule which was historically
given to women has been sought to be metamorphosed to the
primary one. The sustenance of gender justice is the cultivated
achievement of intrinsic human rights. Equality cannot be
achieved unless there are equal opportunities and if a woman
F 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
G factually expose, 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 c.hall be
accompanied by a copy of the Rules of the trade unions. It is
H
CHARU KHURANA v. UNION OF INDIA 285
[DIPAK MISRA, J.]
the duty of the Registrar of the Trade Unions to see that no rule A
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 cifwhich B
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 c
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
D
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, E
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
F
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; G
(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 elapsed
since his release.
H
286 SUPREME COURT REPORTS [2014] 12 S.C.R.
A (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
B commencement cease to be such member or officec
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
c 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
D 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.
E 43. As is evincible, the respondent no.5-Association has
been registered under the Trade Unions Act having registration
No.187.1. 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
F Assistants with a view to protect their interests.
(b) To secure to the members fair conditions of life and
seNices and to protect them from unfair labour practice
in the Trade, keeping the relations with other Trade Unions
in the Film Industry.
G
(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.
H
CHARU KHURANA v. UNION OF INDIA 287
[DIPAK MISRA, J.]
(e) To endeavour to regulate the relations of the members A
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 B
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 c
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 D
Association.
G) To co-operate and federate with other Organisations in
India and abroad having similar object.
E
(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 the
bye-laws reads as follows: F
"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 G
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."
H
288 SUPREME COURT REPORTS [2014] 12 S.C.R.
A 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
B 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.
c 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
D 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
of Trade Unions in exercise of the statutory power. Clause 4,
E 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
F 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,
G 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
H
CHARU KHURANA v. UNION OF INDIA 289
[DIPAK MISRA, J.]
Mullin v. Administrator, Union Territory of Delhi' 4 , it has A
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 8
so as to invest it with 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., C
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 o
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 E
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
F
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 lndia 16 , a three-Judge Bench had opined G
as follows:
14. (1981) 1 sec 608.
15. (1985) 3 sec 545.
16. (2011) 5 sec 676. H
290 SUPREME COURT REPORTS [2014] 12 S.C.R.
A "The Framers of the Constitution, in the Preamble to the
Constitution, guaranteed to secure to its citizens justice
social, economic and political as well as equality of status
and opportunity but the "right to employment" was not
incorporated in Part Ill of the Constitution as a fundamental
B 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 Ill by the Framers of the
c 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, the signification
D of right to livelihood gets clearly spelt out. 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.
E 49. Presently, we shall advert to the law laid down in
Vishaka case. The Court referred to the 1993 Treaty and
I
'· 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
F harassment or abuse. In that context, the Court observed thus:
"The international conventions and norms are to be 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
G 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,
H has recognised the concept of legitimate expectation of
CHARU KHURANA v. UNION OF INDIA 291
[DIPAK MISRA, J.]
its observance in the absence of contrary legislative A
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
B
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.
c
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 D
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 E
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 F
of card to work as make-up artists on the ground that one is
not a resident in the State of Mahrashtra. In Pradeep Jain v.
Union of lndia 17, it has been held thus:
"What is fundamental, as an enduring value of our polity, G
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
11. (1984) 3 sec 654 . H
292 SUPREME COURT REPORTS (2014] 12 S.C.R. ,
A 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
B 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 have opportunity for education or advancement
which is denied to another citizen because he happens to
c 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.
D
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
E 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
Uttarakhand' 8, the Court, while dealing with eligibility criteria
F 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
G lndia' 9 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 selected through NEET-PG 2013/NEET
1s. (2013) 10 sec 237.
H 19. (2003) 11 sec 146.
CHARU KHURANA v. UNION OF INDIA 293
[DIPAK MISRA, J.]
(MDS)-2013 will be given admission on available seats in A
postgraduate courses according to their rank in State merit list,
made available by NBE/MCl/DCl/AllMS and the seats available
at that time. Clause 6 stipulated that having name in the State
merit list o eligible candidates provided by MCl/DCl/NBE/AllMS
will not confer the right on the candidate for getting PG seats B
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 c
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
0
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 colleges from
other States and were admitted through 15% All India quota,
were also eligible for admission to the post graduate medical E
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 F
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 ~ench decision in G
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 Uttrakhancfwas entitled to make its own Policy with
regard to institutional preference. the clauses could not be H
1
294 SUPREME COURT REPORTS (2014] 12 S.C.R.
A 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:
B "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
c 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
D 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-
medica I test conducted by the State Government
concerned has been made eligible for admission to a
E 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
F 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
G Mehrotra v. Union of lndia 20 •
xxx xxx xxx xxx
Thus, it will be clear from what has been held by the three-
H 20. (2003) 11 sec 1ss.
CHARU KHURANA v. UNION OF INDIA 295
[DIPAK MISRA, J.]
Judge Bench of this Court in Magan Mehrotra v. Utiion A
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. B
Hence, Clauses 2 and 3 of the eligibility criteria in the
Information Bulletin are also 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 C
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 Generarthat in the matter of
public employment there has to be special provision. He has D
drawn our attention to Article 3710(1) of the Constitution. It
reads as follows:
"371 D. Special provisions with respect to the State of
Andhra Pradesh E
(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 F
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 G
all the citizens of the country. Unless the special provision is
made, 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 H
296 SUPREME COURT REPORTS [2014) 12 S.C.R.
A 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
B 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
C 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
D 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. Our directions close the matter
E 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.
Devika Gujral Matter adjourned.
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