ANALYSING THE LEGAL VIABILITY OF ‘NO PREGNANCY CLAUSES’ IN FILM CONTRACTS

A no-pregnancy clause (‘NPC’), i.e. a clause forbidding pregnancy, is generally found in employment contracts, and provides that a breach of the clause would lead to termination of employment. While facially gender neutral, these clauses obviously kick-in only for females. This article aims to identify whether such clauses in film contracts will withstand legal scrutiny in India writes Ayushi Singhal.

[O]ne thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, … you would be denying her equal treatment under the law.¹

INTRODUCTION

An NPC in film contracts prohibits an actress from getting pregnant until completion of principal photography for the film, a breach of which leads to the dismissal of the actress and/or a claim for damages.² The inclusion of such a clause is attributed to the difficulty associated with shooting complicated scenes with the pregnant actress due to health concerns, the expansion of mid-riff of the actress upon pregnancy, which is seldom in accordance with the script, and the disturbance in the shooting schedule because of unavailability of the actress on the agreed dates, leading to financial losses for the producer.

These clauses have been used for a while in many other countries³ and have recently crept in the Indian film industry as well, with increased number of foreign studios making films here.⁴ Until

now, an NPC has reportedly been used only once in the Indian film industry, when producer Subhash Ghai contracted with actress Madhuri Dixit, for the film ‘Khalnayak’, during the time she was in a serious relationship with actor Sanjay Dutt.⁵ Recently, actress Kareena Kapoor did not sign for the film ‘Ram Leela’ (which was ultimately signed by Deepika Padukone) because of her refusal to sign an NPC clause, while producer Sanjay Leela Bhansali was insistent on such a clause post her relationship with actor Saif Ali Khan.⁶

In this background, it is speculated that where producers are eager to hedge themselves against risks arising out of an actress’ pregnancy, soon such clauses will become the norm in Indian film industry as well,⁷ to the extent of even existing contracts being reworked.⁸ On the other hand, many stakeholders believe that the relationship between actors and producers in the industry in India is built on trust. Hence, it is likely that negotiations and mutual trust will not be replaced by such contracts.⁹

However it needs to be remembered that compromises by way of negotiations cannot happen when the parties have unequal bargaining powers. For instance, in the case of backstage artists vis-à-vis the producer, etc. This emphasizes the importance of preventing reliance on contract law in this regard.

It is also important to note that even if an NPC is declared invalid so far as films are concerned, the concerns of an actress might not get addressed. This is because there is no corresponding duty on the producer to discontinue the film/serial by the time the actress is fit to shoot again. Therefore, when the shooting for the film hasn’t yet started, or when it is possible to recast the particular role despite the shooting of the film having started, while the actress cannot be

dismissed, the directors can definitely recast her role. Similarly, when there is a fixed term contract, there is a possibility that the term of the contract will expire by the time the actress is back to work. However, the paper will not delve into the tangible benefits or dis-benefits of an affirmative answer to the question posed in this paper.

In the absence of specific anti-discrimination laws with respect to sex in India,¹⁰ the paper will analyse the validity of these clauses on the contours of Labour Law [Part II], Contract Law [Part III], Fundamental Rights [Part IV] and International Law [Part VI]. An effort will also be made to understand if the peculiarities of the film industry, in the absence of a judicial precedent, steers the answer to the question posed in the paper, towards uncertainty [Part V]. Lastly, a brief overview of the law in this regard in the United States and the European Union will be presented [Part VI].

NPC vis-à-vis Labour Law

The major labour legislation governing maternity benefits in India is the Maternity Benefits Act, 1961.¹¹ It applies “to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances” and to “every shop or establishment”¹² as per state laws, in which 10 or more persons are employed on any day of the preceding twelve months (§2(1)). The Act provides for a paid leave to an employee who has worked in an establishment of an employer from whom she demands maternity leave, for not less than 80 days in the 12 months immediately preceding the date of her expected delivery, for a maximum period of 12 weeks. If 80 days of service are not yet complete, it is suggested that the scheme of the Act provides for leave without pay, with a right to return to employment post-

delivery. It also provides for other benefits like nursing breaks etc. The woman is not required to inform of her pregnancy upon her joining the employment.¹³ In addition, dismissal of a woman when she is on leave is illegal (§12). The Act further provides that any agreement of service inconsistent with the Act (thereby including an agreement which provides for the termination of woman on her becoming pregnant, which a typical NPC would entail), would be overridden by the Act (§27).

An argument can be made that actresses are “employed for the exhibition of […] other performances”, where ‘for’ is to be read to mean having a nexus with the exhibition, and not in specific for the exhibition of performances. This is indeed a very expansive reading, and there is no judicial guidance on whether this route will be taken by the courts.

Additionally, while the production houses are not covered within the meaning of ‘establishment being a factory, mine or plantation’, so far as ‘shop or establishment’ as per state laws is concerned, all states in the country, barring Arunachal Pradesh, have a Shops and Establishments Act. The definition of shops in these Acts is almost identical. Judicial precedents have defined shops as a place where systematic economic or commercial activity is carried on,¹⁴ with regard to sale or purchase of goods or services, and includes establishments which facilitate sale or purchase of goods or services as well.¹⁵ It is arguable if a production house facilitates the sale or purchase of goods or services, in as much as it creates the film which is used in the sale of tickets at the movie theatre. There is however, no judicial precedent in this regard.

Additionally, the Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016¹⁶ is presently pending in the Parliament. While a production house might not be covered within the definition of shops under this Model Law,¹⁷ a plain reading of the definition of establishment under the Bill indicates a likelihood of production house being covered by the Act.

Therefore, while there is no guidance available from judicial precedents, there is a likelihood that the production houses will fall within the ambit of businesses covered by the 1961 Act, specifically when states adopt the Model Shops and Establishments (Regulation of Employment and Conditions of Service) Bill, 2016.

Equal Remuneration Act, 1976 is another legislation which might be relevant in this regard. Section 5 of the Equal Remuneration Act provides that there should be no discrimination between men and women at the time of recruitment and thereafter in any terms and conditions pertaining to the employment. Whether or not an NPC is discriminatory is discussed in the section below discussing the validity of an NPC when tested in the background of fundamental rights.

NPC vis-à-vis Contract Law

§23 of the Indian Contract Act, 1872 stipulates that ‘an agreement of which the object or consideration is unlawful is void’. The object or consideration is unlawful as per the Section inter alia if it is ‘forbidden by law’, or the Court regards it as ‘opposed to public policy’. As per the discussion concerning Labour Law previously, it can be argued that the institution of an NPC clause is forbidden by law. The discussion concerning Fundamental Rights below would also indicate that restraining a woman from getting pregnant can be regarded as against public policy since it amounts to a waiver of fundamental rights, which is impermissible.¹⁹

On the other hand, it can be argued that the actress makes a representation of being available for the film throughout the duration of the contract and assuming that in most cases, pregnancy is a planned activity,²⁰ her planning pregnancy during this period is a misrepresentation and a breach of trust. The doctrine of substantial non-performance, which allows for employers to terminate the employee without notice²¹ can also be used, in cases where the pregnancy leads to her inability to perform a substantial portion of the contract.

NPC vis-à-vis Fundamental Rights

The right to equality block (Articles 14 and 15²²) and the right to life (Article 21) come into play while identifying the constitutionality of NPCs.²³ Before we begin the analysis, it needs to be reminded that while Articles 14 and 15 are available only against the state as defined under Article 12 of the Constitution, Article 21 is also available against private individuals.²⁴ Even so far as the equality block is concerned the principle of indirect horizontality can be used to enforce the fundamental right to equality against private persons.²⁵

The validity of an NPC vis-à-vis Article 14 can be tested at two levels. At the first level of non-discrimination,²⁶ (requiring the satisfaction of tests of reasonable nexus of the classification with the object and intelligible differentia) Supreme Court’s case in Air India v. Nergesh Meerza²⁷ is still the valid law. The court there, without discussing whether the nature of the work being actually performed by the two posts in the said case was different, held that as long as the differentiation is done between two separate posts, it will not amount to discrimination since the two posts are not equal at the first place.

On the second level, on the test of non-arbitrariness, as developed in EP Royappa v. State of Tamil Nadu,²⁸ the court held that the provision which resulted in termination of air hostesses’ employment on first pregnancy was arbitrary in as much as it compelled the air hostess to not have any children and thus interfered with the ordinary course of nature, pregnancy being an

‘immutable characteristic of married life’. However the court itself made a very arbitrary differentiation between first two pregnancies and a third one, whereby discriminating on the basis of third pregnancy is somehow in accordance with Article 14, without explaining why only a woman and not a man should be terminated upon him being responsible for third pregnancy of a woman, despite the reasoning behind this differentiation according to the court being population explosion and not the incapacity of woman to work during certain months of pregnancy.

Coming now to the position of law concerning Article 15, until Nergesh Meerza, the High Courts in India were divided in their analysis concerning discrimination on the basis of sex. Some courts had held that discrimination on the basis of sex, coupled with other factors like the capacity of a particular sex to manage property, would not amount to discrimination based only on sex.²⁹ These judgments did not analyse whether the additional characteristic (in the instant example, the capacity of woman to maintain property) was also rooted in a differentiation based on sex and stereotypes associated with it. On the other hand, certain High Courts in analogous fact situations had held otherwise.³⁰ There existed a third line of cases, where if actual differences between the two sexes like the amount of physical strength, were made the basis of the classification, it was held to be valid.³¹ The court in Nergesh Meerza however without considering any of these precedents, held that since the state had declared by way of notification under the Equal Remuneration Act, 1976, that the discrimination was based on the different conditions of service and not sex, Article 15 would not be violated. This the court held without conducting a judicial review of the basis of the notification, taking it at face value.

However subsequent cases have made progress in this regard, both on the front of right to equality and in envisaging the right to motherhood within the ambit of Article 21. In Inspector (Mahila) Ravina v. Union of India, CRPF denied promotion to a female inspector because she was unable to attend a pre-promotional course because of her pregnancy. The Delhi High Court held that penalizing a woman for her pregnancy was in violation of Article 21, as interpreted in light of Articles 42³² and 45.³³ As the case concerned public employment, it was also held to be

discriminatory as per Article 16 of the Constitution (this reasoning also becomes applicable to Article 14 and 15).

In this background, it can be argued that an NPC clause will be violative of Articles 14, 15 and 21. However not just yet, the film industry has certain peculiar features indicated in the beginning of this paper and as detailed below, which might assist the courts in classifying an NPC as a mere classification and not discrimination.

Will the peculiar features of the film industry change the verdict?

Film industry is very different from other industries in as much as while other industries can continue their business in the absence of the pregnant employee, the film production is put to a halt if an actress, in specific the lead actress becomes pregnant. The pregnancy of the actress also disturbs the dates of other cast involved, leading to further delays in the production of the film putting the fate of huge amounts of investments – including on workshops leading to the shooting and the looks of the actress, in a limbo. This is underscored by the huge bills which actors and actresses charge for films.³⁴ It is arguable if insurance can cover the losses arising out of a breach of NPC, in addition to the high insurance premium which might have to be paid if insurance is bought for such contingencies. In this background, the legal invalidity of NPCs might result in producers not contracting married women for roles.

However, while the film industry is heavily dependent on the appearance of the cast, there exist mechanisms which can be used to hide the baby bump. These include usage of Computer Generated Imagery, shooting more close shots than wide shots, using more stunt doubles, etc. Filmmakers in Hollywood have made use of these mechanisms, for instance, to hide Scarlett Johansson’s pregnancy during the movie ‘Avengers: Age of Ultron’. Similarly in the American comedy show Seinfeld, Julia Louis-Dreyfus, who was playing Elaine, the show’s female lead was camouflaged with “[s]hop counters, voluminous clothing, handbags and co-stars”. A magazine describes this thus, “elaborate bump-hiding escapades resembled the nude scene in Austin Powers, where Mike Myers and Liz Hurley wander about in the buff, their modesty protected with double-entendre objects such as melons and jugs.”³⁵ However it is doubtful if the employer should be required to bear the burden of accommodating the actress, specifically when this requires additional financial costs.

A distinction can also be made between serials and films. While the scripts of daily soaps are easier to twist, it is not so for the films. The role of an actress is also easier to recast so far as

daily soaps are concerned,³⁶ since in films the script of the film generally forms a representation to other actors and actresses involved as well. In addition, the duration of daily soaps is considerably longer than that of a film. From the perspective of the employer, it might be more reasonable to have such clauses in a film contract than a daily soap contract.

These peculiar features might bring the NPCs in conformity with laws in India, or at least a distinction might be made by the courts between films and daily soaps, as well as between actresses who are essential for the continuation of the film/serial and whose role cannot be recasted, and other actresses/artists.

Testing on the basis of International Law

The Universal Declaration on Human Rights recognizes the special care and assistance required by a pregnant woman.³⁷ Similarly, the International Covenant on Economic, Social and Cultural Rights also requires states to adopt measures to protect motherhood.³⁸ For the purposes of this essay, we will however be discussing the obligations India has under ILO’s Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which it ratified in June 1960.³⁹ The states by way of this Convention inter alia, undertake to eliminate discrimination on the basis of sex in employment.⁴⁰ However “[a]ny distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”⁴¹

In the context of this convention, a case was filed by ITF (International Transport Workers’ Federation) and the ITUC (International Trade Union Confederation) against the Qatar Airlines and the government of Qatar, the Qatar Airlines having NPC clauses in its contracts with Air Hostesses. The Director General of ILO held this to be a violation of the Convention No.111. It

further held “that distinctions in employment and occupation based on pregnancy or maternity are discriminatory, as they can only, by definition, affect women. They constitute therefore direct discrimination on the basis of sex, contrary to the Convention (footnotes omitted).” While Qatar, just like India was not bound by ILO’s Maternity Protection Convention, 2000 (No. 183), it was held that the same “can serve as guidance to improve laws, policies and practices relating to the protection of maternity”. In accordance with Convention No.183, the Director General recommended “adaptation of the conditions of work of the pregnant worker, a transfer to another post – without loss of pay – when such an adaptation is not feasible or paid leave – in accordance with national laws – regulations or practice, when such a transfer is not feasible.” Qatar government was made responsible for ensuring that the changes recommended by the Director General were given effect to.

Similarly the ILO in its 98th session in 2009, urged the government of Nigeria to bring its Police Regulations in conformity with the Convention. Inter alia, the ILO found the section providing for discharge of an unmarried police officer who becomes pregnant, as direct discrimination under the Convention.⁴²

It is likely that if the concern about NPC clauses in film contracts in India is taken to ILO, ILO will find against India. However since India is a dualist country and it hasn’t yet introduced a law implementing the Convention No. 111, there will be no consequences of the jurisprudence under this Convention for national disputes, unless the Indian courts use the obligations of India under this Convention as a tool of interpretation/implementation of fundamental rights.

Labour Law Elsewhere

Since Indian courts have heavily borrowed the anti-discrimination jurisprudence from America, this section will discuss the law in this regard in the United States. In light of the fact that the jurisprudence in European Union is the most advanced in this regard, a brief overview of the position there will also be presented.

In the United States, Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex by the employers. The Pregnancy Discrimination Act of 1978 amended Title VII to explicitly prohibit discrimination in employment based on pregnancy, in order to reverse the effect of cases prior to the introduction of the Act of 1978, which had held that discrimination based on pregnancy is not discrimination based on sex.⁴³ However sex can be a ground of classification when it is a bona fide occupational qualification [‘BFOQ’] that is reasonably necessary to the

normal operation of that particular business. The question whether where sex is a BFOQ, as in the case of a female actress (a male actor cannot perform the job of a female), can non-pregnancy be an additional ground arose in the case of Tylo v. Superior Court (Spelling Entertainment Group, Inc.).⁴⁴ In the said case, there existed a material adverse change in appearance clause, as a consequence of which change in appearance not in accordance with the script could lead to termination of the employment.⁴⁵ Actress Tylo on becoming pregnant was terminated from employment. While the case could have been a landmark one, we don’t see much discussion on the non-discrimination jurisprudence therein because of the line which Tylo’s lawyers took in the court – Tylo’s appearance did not change adversely because of her pregnancy.

However cue can be taken from the case of Wilson v. Southwest Airlines Co.,⁴⁶ where it was held that authenticity is essential to the jobs of actors and actresses, thereby hinting that material adverse change in appearance clauses might be valid as a BFOQ (though it remains to be seen whether the courts construe this as a clause which impacts women more adversely than men, since the changes in appearance of a man can be controlled – for instance the growth of a beard, but the change in appearance due to pregnancy is difficult to control). However the question being asked by the courts is if men were to require a nine-month leave, would they be discriminated against? Answering this question in the affirmative, some courts have held pregnancy based discriminations as valid.⁴⁸ However there do exist cases which, though in minority,⁴⁸ have held using a but-for-pregnancy approach, that when the discrimination would not occur but for the pregnancy, it is discrimination based on sex.⁴⁹

The European Jurisprudence is far clearer in this regard. The employee has no obligation to disclose her pregnancy during recruitment or at any other stage.⁵⁰ The ECJ has held that even economic interest cannot justify discrimination on the basis of pregnancy.⁵¹ This is so even when

the presence of the woman in question is necessary for the proper functioning of the business in which she is employed,⁵² or the contract is for a fixed term and the woman is pregnant for a substantial duration of this fixed term.⁵³

Conclusion

This essay is an effort at analysing the legal validity of an NPC in film contracts. An NPC prohibits an actress from getting pregnant until completion of principal photography for the film. A breach of this clause results in dismissal of the actress. So far as Labour Law is concerned, it is likely that an NPC will be invalidated by the non-derogatory provisions of the Maternity Benefits Act, 1961. Under the Indian Contract Act, 1872, read in the light of the jurisprudence on fundamental rights and the Maternity Benefits Act, 1961, these clauses can also be said to be against the public policy of India, and hence invalid as per §23 of the Act. However it can be argued that pregnancy would result in substantial non-performance of the fixed term film contract, thereby allowing for repudiation of the contract by the counter-party, the producer, in effect leading to termination of the actress’ employment. The clause is arguably in violation of Articles 14, 15, 16 and 21 of the Indian Constitution, unless the peculiar features of the film industry, where the business of the production house is dependent on the continuation of employment of the actress, might persuade the Indian courts in holding an NPC as a valid classification instead of a discrimination only on the basis of sex. ILO’s Discrimination (Employment and Occupation) Convention, 1958 (No. 111), which India ratified in June 1960 would make India liable for non-introduction of laws with respect to non-discrimination on the basis of sex in all forms of employment at the international level. However India hasn’t yet introduced a law implementing this Convention at the national level. It will also be helpful if the Film Guild Association takes lead in formulation of guidelines in this respect. With respect to the position in this regard elsewhere in the world, while the jurisprudence in the United States indicates that an NPC would fall within the BFOQ exception under the Title VII of the Civil Rights Act of 1964, the European Court of Justice is likely to construe this clause as that promoting discrimination on the basis of sex. On the whole, there is no conclusive answer to the legal validity of these clauses.