# CHARU KHURANA & OTHERS v. UNION OF INDIA & OTHERS

- **Citation:** [2014] 12 S.C.R. 259
- **Court:** Supreme Court of India
- **Decided:** 2014
- **Bench:** Dipak Misra, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/charu-khurana-others-v-union-of-india-others-29540
- **Pages:** 38

## Headnote

CONSTITUTION OF IND/A, 1950: Articles 14, 21, 39A,
A
B
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,
8 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
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; Raml

## Text

_Characters 0–39,935 of 71,562. This is a partial read: ask again with offset=39935 for what follows._

[2014] 12 S.C.R. 259
CHARU KHURANA & OTHERS
v.
UNION OF INDIA & OTHERS
{Writ Petition {Civil) No. 78 of 2013)
NOVEMBER. 10, 2014
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
CONSTITUTION OF IND/A, 1950: Articles 14, 21, 39A,
A
B
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,
8 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
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
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
F
a man and woman, and rightly so. The respondent no.5Association 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; 286B 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/byelaw 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]
G
H
Pradeep Jain v. Union of India 1984 (3) SCR 942 :
(1984) 3 sec 654 - relied on.
Case Law Reference:
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
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
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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
precondition for meeting the challenge of reducing poverty,
promoting sustainable development and building good
governance."
6. Long back Charles Fourier had stated "The extension
F
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
c
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
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:
B
"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 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
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,
1.
(1996) 3 sec 545.
F
G
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."
c
D
E
F
G
H
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;
(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 v;:ilue, 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
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:
"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)
D
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:
"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
F
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 Make2.
(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
E
F
G
H
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,
Federation of Western India
Cine Employees,
Andheri (West),
Mumbai.
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
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. Makeup artist Card and Hair-dresser's card. She was duly
informed that there was no system of issuing two cards
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 makeup 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 makeup 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 nonpolitical organisation which does not allow any
discrimination on the basis of religion, caste, community,
H
A
B
c
D
272
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[2014] 1-2 S.C.R.
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
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
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
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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
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
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 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
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[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 makeup 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
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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.
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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.
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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
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
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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.
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
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 lndia5, 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.
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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.
F
G
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.
6.
(2012)6SCC1.
1.
c2014) s sec 1.
H s.
c2012) 5 sec 1.
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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 51A. Clauses (e) and G) and provide as follows:
F
"(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.
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[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.