& Ors Vs. Hotel Association of India & Ors  Insc 1226 (6 December 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 5657 OF 2007 [Arising out of SLP (Civil) No. 12781 of 2006] WITH
CIVIL APPEAL NOs. 5658 OF 2007 [Arising out of SLP (Civil) No. 16127 of 2006]
S.B. SINHA, J :
Constitutional validity of Section 30 of the Punjab Excise Act, 1914 (for short
"the Act") prohibiting employment of "any man under the age of
25 years" or "any woman" in any part of such premises in which
liquor or intoxicating drug is consumed by the public is the question involved
in this appeal which arises out of a judgment and order dated 12.01.2006 passed
by the High Court of Delhi in CWP No. 4692 of 1999.
First Respondent is the Hotel Association of India. Its members carry on business in hotels. Liquor is served
in the hotels not only in the bar but also in the restaurant. Liquor is also
served in rooms as part of room service.
Respondent with four others filed a writ petition before the Delhi High Court
questioning the validity of the said provision. By reason of the impugned
judgment, Section 30 of the Act has been declared to be ultra vires Articles
19(1)(g), 14 and 15 of the Constitution of India to the extent it prohibits
employment of any woman in any part of such premises, in which liquor or
intoxicating drugs are consumed by the public.
4. National Capital Territory of Delhi appears to have accepted the said judgment. But as a
respondent, it seeks to support the impugned statutory provision, although no
Special Leave Petition has been filed by it.
herein, who are a few citizens of Delhi, are before us.
special leave petition has been filed by the First Respondent questioning that
part of the order whereby restrictions had been put on employment of any man
below the age of 25 years.
Rajiv Dutta, learned senior counsel appearing on behalf of the appellants, in
support of this appeal, submitted that as nobody has any fundamental right to
deal in liquor, being 'res extra commercium', the State had the right to make a
law and/or continue the old law imposing reasonable restrictions on the nature
of employment therein.
Arun Jaitley, learned senior counsel appearing on behalf of the respondents, on
the other hand, supported the impugned judgment.
Act is a pre-constitutional legislation. Although it is saved in terms of
Article 372 of the Constitution, challenge to its validity on the touchstone of
Articles 14, 15 and 19 of the Constitution of India, is permissible in law.
While embarking on the questions raised, it may be pertinent to know that a
statute although could have been held to be a valid piece of legislation keeping
in view the societal condition of those times, but with the changes occurring
therein both in the domestic as also international arena, such a law can also
be declared invalid.
John Vallamattom & Anr. v. Union of India (2003) 6 SCC 611], this Court, while
referring to an amendment made in UK in relation to a provision which was in pari
materia with Section 118 of Indian Succession Act, observed :
constitutionality of a provision, it is trite, will have to be judged keeping
in view the interpretative changes of the statute affected by passage of
to the changing legal scenario and having regard to the Declaration on the
Right to Development adopted by the World Conference on Human Rights as also
Article 18 of the United Nations Covenant on Civil and Political Rights, 1966,
it was held :
It is trite that having regard to Article 13(1) of the Constitution, the
constitutionality of the impugned legislation is required to be considered on
the basis of laws existing on 26-1-1950, but while doing so the court is not
precluded from taking into consideration the subsequent events which have taken
place thereafter. It is further trite that the law although may be
constitutional when enacted but with passage of time the same may be held to be
unconstitutional in view of the changed situation."
Changed social psyche and expectations are important factors to be considered
in the upkeep of law. Decision on relevance will be more often a function of
time we are operating in. Primacy to such transformation in constitutional
rights analysis would not be out of place. It will be in fitness of the
discussion to refer to the following text from "Habits of the Heart:
and Commitment in American Life" by R. Bellah, R. Madsen, W. Sullivan, A. Swidler
and S. Tipton, 1985, page 286 which suggests factoring in of such social
transformation of our culture and our society would have to happen at a number
of levels. If it occurred only in the minds of individuals (as to some degree
it already has) it would be powerless. If it came only from the initiative of
the state, it would be tyrannical.
transformation among large numbers is essential, and it must not only be a
transformation of consciousness but must also involve individual action. But
individuals need the nurture of crops that carry a moral tradition reinforcing
their own aspirations.
are commitments that require a new social ecology and a social movement
dedicated to the idea of such a transformation."
International treaties vis-`-vis the rights of women was noticed by this Court
in a large number of judgments, some of which we may notice at this stage.
Githa Hariharan v. Reserve Bank of India [(1999) 2 SCC 228], this Court was
faced with construing Section 6(a) of Hindu Minority and Guardianship Act, 1956
and Section 19(b) of Guardian and Wards Act, 1890. The sections were challenged
as violative of the equality clause of the Constitution, inasmuch as the mother
of the minor is relegated to an inferior position on ground of sex alone since
her right, as a natural guardian of the minor, is made cognizable only 'after'
the father. The court relied upon the Convention on the Elimination of All
Forms of Discrimination against Women, 1979 ("CEDAW") and the Beijing
Declaration, which directs all State parties to take appropriate measures to
prevent discrimination of ail forms against women is quite clear. It was held
by the court that the domestic courts are under an obligation to give due
regard to International Conventions and Norms for construing domestic laws when
there is no inconsistency between them.
Air India v. Nergesh Meerza [(1981) 4 SCC 335], this Court was faced with the
constitutional validity of Regulation 46(i)(c) of Air India Employees' Service
Regulations, it was provided that the services of the Air Hostesses would stand
terminated on first pregnancy. The Court after considering various US Supreme
Court judgments regarding pregnant women held that the observations made
therein would apply to the domestic cases.
Municipal Corporation of Delhi v. Female Workers (Muster Roll)
& Anr. [(2000) 3 SCC 224], the short question which was to be decided by
this Court was whether having regard to the provisions contained in Maternity
Benefit Act, 1961, women engaged on casual basis or on muster roll basis on
daily wages and not only those in regular employment were eligible for
maternity leave. The Court while upholding the right of the female workers to get
maternity leave relied upon the doctrine of social justice as embodied in
Universal Declaration of Human Rights Act, 1948 and Article 11 of the
Convention on the elimination of all forms of discrimination against women held
that the provisions of the same must be read into the service contracts of
Madhu Kishwar & Ors. v. State of Bihar & Ors. [(1996) 5 SCC 125], challenge was made to certain provisions
of Chotanagpur Tenancy Act, 1908 providing succession to property in the male
line in favour of the male on the premise that the provisions are
discriminatory and unfair against women and, therefore, ultra vires the
equality clause in the Constitution.
Court while upholding the fundamental right of the Tribal women to the right to
livelihood held that the State was under an obligation to enforce the
provisions of the Vienna Convention on the elimination of all forms of
discrimination against women (CEDAW) which provided that discrimination against
women violated the principles of equality of rights and respects for human
Vishaka & Ors. v. State of Rajasthan
& Ors. [(1997) 6 SCC 241], the writ petition was filed for the enforcement
of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution
of India with the aim of finding suitable methods for realization of the true
concept of "gender equality"; and preventing sexual harassment of
working women in all work places through judicial process to fill the vacuum in
existing legislation. This Court while framing the guidelines and norms to be
observed by the employers in work places to ensure the prevention of sexual
harassment of women, inter alia, relied on the provisions in the Convention on
the Elimination of All Forms of Discrimination against Women as also the
general recommendations of CEDAW for construing the nature and ambit of
constitutional guarantee of gender equality in our Constitution.
Randhir Singh v. Union of India & Ors. [(1982) 1 SCC
618], this Court while holding that non-observance of the principle of 'equal
pay for equal work' for both men and women under Article 39(d) of the
Constitution amounted to violation of Article 14 and 16, recognized that the
principle was expressly recognized by all socialist systems of law including
the Preamble to the Constitution of the International Labour Organization.
Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success I
& Anr. [(2004) 9 SCC 512], this Court had to interpret the meaning and
import of the word 'necessaries' used in Section 5 of the Admiralty Court Act,
1861. The Court whiled importing the meaning of the same through Foreign
(American) Court decisions, opined :
is true that this Court is not bound by the American decisions. The American decisions
have merely a persuasive value but this Court would not hesitate in borrowing
the principles if the same is in consonance with the scheme of Indian law
keeping in view the changing global scenario.
changes and outlook in trade and commerce could be a relevant factor. With the
change of time, from narrow and pedantic approach, the court may resort to
broad and liberal interpretation. What was not considered to be a necessity a
century back, may be held to be so now."
of the Debate
the instant matter, we are in the thick of debate relating to Individual Rights
of women. The classical counter to individual rights is the community
orientation of rights. There is no such shade to the current matter. Here the
individual rights are challenged by a problem of practical import of
enforcement and security.
Therefore, the important jurisprudential tenet involved in the matter is not
the prioritization of rights inter se but practical implementation issues
competing with a right. It is one thing when two norms falling in the same
category (for instance Individual Rights versus Community Orientation of
Rights) compete and quite another when two norms with unequal hierarchical
status come in conflict with each other.
the very outset we want to define the contours of the discussion which is going
to ensue. Firstly, the issue floated by the state is very significant,
nonetheless does not fall in the same class as that of rights which it comes in
conflict with, ontologically. Secondly, the issue at hand has no social
spillovers. The rights of women as individuals rest beyond doubts in this age.
If we consider (various strands of) feminist jurisprudence as also identity
politics it is clear that time has come that we take leave of the theme
encapsulated under Section 30. And thirdly we will also focus our attention on
the interplay of doctrines of self-determination and an individual's best
When the original Act was enacted, the concept of equality between two sexes
was unknown. The makers of the Constitution intended to apply equality amongst
men and women in all spheres of life. In framing Articles 14 and 15 of the
Constitution, the constitutional goal in that behalf was sought to be achieved.
Although the same would not mean that under no circumstance, classification,
inter alia, on the ground of sex would be wholly impermissible but it is trite
that when the validity of a legislation is tested on the anvil of equality
clauses contained in Articles 14 and 15, the burden therefor would be on the
State. While considering validity of a legislation of this nature, the court
was to take notice of the other provisions of the Constitution including those
contained in Part IV A of the Constitution.
Bhe & Ors. v. The Magistrate, Khayelisha & ors. [(2004) 18 BHRC 52],
the South African
was required to consider the constitutionality of the Black Administration Act,
1927 (South Africa) and the Regulations of the
Administration and Distribution of the Estates of Deceased Blacks (South Africa). This scheme was purporting to
give effect to the customary law of succession where principle of male
primogeniture is central to customary law of succession.
held by the majority that the rule of male primogeniture as it applied in
customary law to the inheritance of property was inconsistent with the
constitution and invalid to the extent that it excluded or hindered women and
extra-marital children from inheriting property. The rules of succession in
customary law had not been given the space to adapt and to keep pace with
changing social conditions and values. Instead, they had overtime become
increasingly out of step with the real values and circumstances of the society
they were meant to serve. The application of the customary law rules of
succession in circumstances vastly different from their traditional setting
caused much hardship. Thus the official rules of customary law of succession
were no longer universally observed. The exclusion of women from inheritance on
the grounds of gender was a clear violation of the constitutional prohibition
against unfair discrimination.
the principle of primogeniture also violated the right of women to human
dignity as it implied that women were not fit or competent to own and
administer property. Its effect was to subject those women to a status of
perpetual minority, placing them automatically under the control of male heirs,
simply by virtue of gender differentiation.
on changing realities
may now look into the ground reality. In India, hospitality industry has grown by leaps and bounds. As noticed
hereinbefore, liquor, in the hospitality industry, is being served not only in
the bar but also in the restaurant. Service of liquor is permissible also in
the rooms of a hotel.
The impugned provision provides for wide restrictions. It prohibits employment
of any woman in any part of the premises where liquor is being served. It would
prohibit employment of women and men below 25 years in any of the restaurants.
As liquor is permitted to be served even in rooms, the restriction would also
operate in any of the services including housekeeping where a woman has to
enter into a room; the logical corollary of such a wide restriction would be
that even if service of liquor is made permissible in the flight, the
employment of women as air-hostesses may be held to be prohibited.
Hotel Management has opened up a viesta of young men and women for employment.
A large number of them are taking hotel management graduation courses. They
pass their examinations at a very young age. If prohibition in employment of
women and men below 25 years is to be implemented in its letter and spirit, a
large section of young graduates who have spent a lot of time, money and energy
in obtaining the degree or diploma in hotel management would be deprived of
their right of employment. Right to be considered for employment subject to
just exceptions is recognized by Article 16 of the Constitution. Right of employment
itself may not be a fundamental right but in terms of both Articles 14 and 16
of the Constitution of India, each person similarly situated has a fundamental
right to be considered therefor. When a discrimination is sought to be made on
the purported ground of classification, such classification must be founded on
a rational criteria. The criteria which in absence of any constitutional
provision and, it will bear repetition to state, having regard to the societal
conditions as they prevailed in early 20th century, may not be a rational
criteria in the 21st century. In the early 20th century, the hospitality sector
was not open to women in general.
last 60 years, women in India have gained entry in all spheres of
public life. They have also been representing people at grass root democracy.
They are now employed as drivers of heavy transport vehicles, conductors of
service carriage, pilots et. al. Women can be seen to be occupying Class IV
posts to the post of a Chief Executive Officer of a Multinational Company. They
are now widely accepted both in police as also army services.
Extra Commercium Issue
Occupation/service in the management of hotel industry is a specialized job. It
requires specialized skill. To deprive a large section of successful young men
and women from obtaining any job for which they have duly been trained, in our
opinion, would be wholly unjust. The State cannot invoke the doctrine of 'res
extra commercium' in the matter of appointment of eligible persons. The said principle
could have been invoked if the State intended to adopt a policy of prohibition.
It is one thing to say that the trade in liquor is regulated but it is another
thing to say that such regulations which are principally in the area of
manufacture, sale, export and import of intoxicants should be allowed to
operate in other fields also.
Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others [(2006) 4 SCc 327], this
an employer gives employment to a person, a contract of employment is entered
into. The right of the citizens to enter into any contract, unless it is
expressly prohibited by law or is opposed to public policy, cannot be
power to enter into a contract is within the realm of the Indian Contract Act.
It has not been and could not be contended that a contract of employment in the
toddy shops would be hit by Section 23 of the Indian Contract Act. So long as
the contract of employment in a particular trade is not prohibited either in terms
of the statutory or constitutional scheme, the State's intervention would be
unwarranted unless there exists a statutory interdict. Even to what extent such
a legislative power can be exercised would be the subject matter of debate but
in a case of this nature there cannot be any doubt that the impugned rules are
also contrary to the provisions of the Indian Contract Act as also the Specific
Relief Act, 1963."
was further observed:
a person may not have any fundamental right to trade or do business in liquor,
but the person's right to grant employment or seek employment, when a business
is carried on in terms of the provisions of the licence, is not
Patriae Power of State
One important justification to Section 30 of the Act is parens patriae power of
state. It is a considered fact that use of parens patriae power is not entirely
beyond the pale of judicial scrutiny.
Patriae power has only been able to gain definitive legalist orientation as it
shifted its underpinning from being merely moralist to a more objective
grounding i.e. utility.
The subject matter of the Parens Patriae power can be adjudged on two counts:
in terms of its necessity and
assessment of any tradeoff or adverse impact, if any
This inquiry gives the doctrine an objective orientation and therefore prevents
it from falling foul of due process challenge. (See City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439-41 (1985)) Parens Patriae power is
subject to constitutional challenge on the ground of Right to Privacy also.
Young men and women know what would be the best offer for them in the service
sector. In the age of internet, they would know all pros and cons of a
profession. It is their life; subject to constitutional, statutory and social
interdicts a citizen of India should be allowed to live her life
on her own terms.
Let us understand various standards which objectify Parens Patriae.
standard is one test in US jurisdiction in Child Custody
matters. Similarly other standards have evolved amongst which right to self-
determination holds an important place.
to employment vis-a-viz Security: Competing Values
The instant matter involves a fundamental tension between right to employment
The fundamental tension between autonomy and security is difficult to resolve.
It is also a tricky jurisprudential issue. Right to Self Determination is an
important offshoot of Gender Justice discourse. At the same time, security and
protection to carry out such choice or option specifically, and state of
violence-free being generally is another tenet of the same movement. In fact,
the latter is apparently a more basic value in comparison to right to options
in the feminist matrix.
Privacy rights prescribe autonomy to choose profession whereas security
concerns texture methodology of delivery of this assurance. But it is a
reasonable proposition that that the measures to safeguard such a guarantee of
autonomy should not be so strong that the essence of the guarantee is lost.
protection must not translate into censorship.
the same time we do not intend to further the rhetoric of empty rights. Women
would be as vulnerable without state protection as by the loss of freedom
because of impugned Act. The present law ends up victimizing its subject in the
name of protection. In that regard the interference prescribed by state for
pursuing the ends of protection should be proportionate to the legitimate aims.
The standard for judging the proportionality should be a standard capable of
being called reasonable in a modern democratic society.
Instead of putting curbs on women's freedom, empowerment would be a more
tenable and socially wise approach. This empowerment should reflect in the law
enforcement strategies of the state as well as law modeling done in this
Also with the advent of modern state, new models of security must be developed.
There can be a setting where the cost of security in the establishment can be
distributed between the state and the employer.
Gender equality today is recognized by the European Court as one of the key principles underlying the Convention and
a goal to be achieved by member States of the Council of Europe.
case of Abdulaziz, Cabales And Balkandali v. United Kingdom,  ECHR 7 the court held:
to the present matter, it can be said that the advancement of the equality of
the sexes is today a major goal in the member States of the Council of Europe. This
means that very weighty reasons would have to be advanced before a difference
of treatment on the ground of sex could be regarded as compatible with the
Abdulaziz (supra) the European Court of Human Rights once again observed in Van
Raalte v. The Netherlands,  ECHR 6:
the applicant's submission, differences in treatment based on sex were already
unacceptable when section 25 of the General Child Care Benefits Act was enacted
in 1962. The wording of Article 14 of the Convention (art. 14) showed that such
had been the prevailing view as early as 1950.
legal and social developments showed a clear trend towards equality between men
and women. The applicant drew attention to, inter alia, the Court's Abdulaziz, Cabales
and Balkandali v. the United Kingdom judgment of 28 May 1985 (Series A no. 94),
which stated explicitly that "the advancement of the equality of the sexes
is today a major goal in the member States of the Council of Europe" and
that "very weighty reasons would have to be advanced before a difference
of treatment on the ground of sex could be regarded as compatible with the
Convention" (loc. cit., p. 38, para. 78)."
supplied) (See also Schuler-Zgraggen v. Swizerland,  ECHR 29; and Petrovic
v. Austria,  ECHR 21) Stereotype Roles and Right to Options
Professor Williams in "The Equality Crisis: Some Reflections on Culture,
Courts, and Feminism" published in 7 WOMEN'S RTS. L. REP.
(1982) notes issues arising where biological distinction between sexes is
assessed in the backdrop of cultural norms and stereotypes. She characterizes
them as "hard cases". In hard cases, the issue of biological
difference between sexes gathers an overtone of societal conditions so much so
that the real differences are pronounced by the oppressive cultural norms of
the time. This combination of biological and social determinants may find
expression in popular legislative mandate. Such legislations definitely deserve
deeper judicial scrutiny. It is for the court to review that the majoritarian
impulses rooted in moralistic tradition do not impinge upon individual
autonomy. This is the backdrop of deeper judicial scrutiny of such legislations
Therefore, one issue of immediate relevance in such cases is the effect of the
traditional cultural norms as also the state of general ambience in the society
which women have to face while opting for an employment which is otherwise
completely innocuous for the male counterpart. In such circumstances the
question revolves around the approach of state.
Instead of prohibiting women employment in the bars altogether the state should
focus on factoring in ways through which unequal consequences of sex
differences can be eliminated. It is state's duty to ensure circumstances of
safety which inspire confidence in women to discharge the duty freely in
accordance to the requirements of the profession they choose to follow. Any
other policy inference (such as the one embodied under section 30) from societal
conditions would be oppressive on the women and against the privacy rights.
The description of the notion of "romantic paternalism" by the US
Supreme Court in Frontiero v. Richardson
(411 U.S. 677, 93 S.Ct. 1764) makes for an interesting reading. It is not to
say that Indian society is similarly situated and suffers from the same degree
of troublesome legislative past but nevertheless the tenor and context are not
to be missed.
court noted in this case of military service:
can be no doubt that our Nation has had a long and unfortunate history of sex
such discrimination was rationalized by an attitude of 'romantic paternalism'
which, in practical effect, put women, not on a pedestal, but in a cage As a result
of notions such as these, our statute books gradually became laden with gross,
stereotyped distinctions between the sexes"
court also maintained the strict scrutiny standard for review and repelled the
administrative convenience argument in the following terms:
any case, our prior decisions make clear that, although efficacious
administration of governmental programs is not without some importance, 'the
Constitution recognizes higher values than speed and efficiency.' And when we
enter the realm of 'strict judicial scrutiny,' there can be no doubt that
'administrative convenience' is not a shibboleth, the mere recitation of which
contrary, any statutory scheme which draws a sharp line between the sexes, solely
for the purpose of achieving administrative convenience, necessarily commands
'dissimilar treatment for men and women who are similarly situated,' and
therefore involves the 'very kind of arbitrary legislative choice forbidden by
therefore conclude that, by according differential treatment to male and female
members of the uniformed services for the sole purpose of achieving
administrative convenience, the challenged statutes violate the Due Process
Clause of the Fifth Amendment."
another similar case wherein there was an effective bar on females for the
position of guards or correctional counsellors in the Alabama state penitentiary system. The
prison facility housed sexual offenders and the majority opinion on this basis
inter alia upheld the bar. Justice Marshall's dissent captures the ranges of
issues within a progressive paradigm. Dissent in Dothard v. Rawlinson (433 U.S.
321, 97 S.Ct. 2720) serves as useful advice in the following terms:
appears that the real disqualifying factor in the Court's view is 'the
employee's very womanhood.' The Court refers to the large number of sex
offenders in Alabama prisons, and to 'the likelihood
that inmates would assault a woman because she was a woman.' In short, the
fundamental justification for the decision is that women as guards will
generate sexual assaults.
all respect, this rationale regrettably perpetuates one of the most insidious
of the old myths about women that women, wittingly or not, are seductive sexual
objects. The effect of the decision, made I am sure with the best of
intentions, is to punish women because their very presence might provoke sexual
assaults. It is women who are made to pay the price in lost job opportunities
for the threat of depraved conduct by prison inmates. Once again, 'the pedestal
upon which women have been placed has upon closer inspection, been revealed as
a cage.' It is particularly ironic that the cage is erected here in response to
feared misbehavior by imprisoned criminals."
notes the nature of protective discrimination (as garb) in the following terms:
Court points to no evidence in the record to support the asserted 'likelihood
that inmates would assault a woman because she was a woman.' Perhaps the Court
relies upon common sense, or 'innate recognition'. But the danger in this
emotionally laden context is that common sense will be used to mask the
persisting discriminatory attitudes that the Court properly eschews. To me, the
only matter of innate recognition is that the incidence of sexually motivated
attacks on guards will be minute compared to the 'likelihood that inmates will
assault' a guard because he or she is a guard.
proper response to inevitable attacks on both female and male guards is not to
limit the employment opportunities of lawabiding women who wish to contribute
to their community, but to take swift and sure punitive action against the
inmate offenders. Presumably, one of the goals of the Alabama prison system is the eradication of
inmates' antisocial behavior patterns so that prisoners will be able to live
one day in free society. Sex offenders can begin this process by learning to
relate to women guards in a socially acceptable manner. To deprive women of job
opportunities because of the threatened behavior of convicted criminals is to
turn our social priorities upside down."
Standard of Judicial Scrutiny
is to be borne in mind that legislations with pronounced "protective
discrimination" aims, such as this one, potentially serve as double edged
swords. Strict scrutiny test should be employed while assessing the
implications of this variety of legislations. Legislation should not be only
assessed on its proposed aims but rather on the implications and the effects.
impugned legislation suffers from incurable fixations of stereotype morality
and conception of sexual role. The perspective thus arrived at is outmoded in
content and stifling in means.
law in its ultimate effect should end up perpetuating the oppression of women.
Personal freedom is a fundamental tenet which can not be compromised in the
name of expediency until unless there is a compelling state purpose. Heightened
level of scrutiny is the normative threshold for judicial review in such cases.
Professor Christine A. Littleton in her widely quoted article RECONSTRUCTING
SEXUAL EQUALITY, 75 CALR 1279, July 1987 makes a useful observation in this
difference between human beings, whether perceived or real, and whether biologically
or socially based, should not be permitted to make a difference in the
lived-out equality of those persons. I call this the model of 'equality as
acceptance.' To achieve this form of sexual equality, male and female
'differences' must be costless relative to each other."
Having regard to the scope of Section 30 of the Act and the impugned
legislation generally the Court has to reach to a finding as to whether the
legislative interference to the autonomy in employment opportunities for women
is justified as a legitimate aim and proportionate to the aim pursued.
this behalf it would be relevant to understand the approach of European Court
of Human Rights which has very often dealt with matters of competing public
interests and tuned new legal devices for the same.
of Proportionality and Incompatibility would definitely find mention in such a
The test to review such a Protective Discrimination statute would entail a two
legislative interference (induced by sex discriminatory legalisation in the
instant case) should be justified in principle,
same should be proportionate in measure.
The Court's task is to determine whether the measures furthered by the State in
form of legislative mandate, to augment the legitimate aim of protecting the
interests of women are proportionate to the other bulk of well-settled gender
norms such as autonomy, equality of opportunity, right to privacy et al. The
bottom-line in this behalf would a functioning modern democratic society which
ensures freedom to pursue varied opportunities and options without
discriminating on the basis of sex, race, caste or any other like basis. In
fine, there should be a reasonable relationship of proportionality between the
means used and the aim pursued.
United States v. Virginia (518 U.S. 515, 532-33 (1996)) Justice
Ginsburg notes with particular emphasis the need for an intrusive multi- stage
review in sex discrimination statutes. The court observed :
heightened review standard our precedent establishes does not make sex a
proscribed classification. Supposed "inherent differences" are no
longer accepted as a ground for race or national origin classifications.
Physical differences between men and women, however, are enduring.
"Inherent differences" between men and women, we have come to
appreciate, remain cause for celebration, but not for denigration of the
members of either sex or for artificial constraints on an individual's
opportunity. Sex classifications may be used to compensate women "for
particular economic disabilities [they have] suffered," to "promote
equal employment opportunity," to advance full development of the talent
and capacities of our Nation's people. But such classifications may not be
used, as they once were, to create or perpetuate the legal, social, and
economic inferiority of women." (internal citations omitted) Changing
Stand of the Government of NCT Delhi
The Government of NCT Delhi, although did not challenge the impugned judgment
of the Delhi High Court, seeks to enter into the fray through a side door. It,
on the one hand, challenges the locus of the appellant which objection, if
upheld, would make the appeal liable to be dismissed at the threshold, on the
other, seeks to justify the validity of Section 30 of the Act. It cites
examples of Jessica Lal and BMW to highlight dangerous consequences of allowing
sale and consumption of liquor by young men below the age of 25 years and
vulnerability of women while working in bars. When the restrictions were in
force, they could not prevent such occurrences. If the restriction goes, some
such incidents may again happen. But only on a pre-supposition that there is a
possibility of some incident happening, we cannot declare a law intra vires
which is ex facie ultra vires.
We, furthermore, deprecate this practice of the Government of NCT to raise a
contention of the aforementioned nature which not only had not been raised
before the High Court but in an appeal filed by a few citizens maintainability
whereof is in question.
having allowed the judgment of High Court to attain finality, is estopped by
records to question the correctness of the impugned judgment.
the instant case the end result is an invidious discrimination perpetrating
Young men who take a degree or diploma in Hotel Management enter into service
at the age of 22 years or 23 yerars. It, thus, cannot prohibit employment of
men below 25 years. Such a restriction keeping in view a citizen's right to be
considered for employment, which is a facet of the right to livelihood do not
stand judicial scrutiny.
For the reasons aforementioned, we do not find any infirmity in the impugned
decision of the High Court. The appeal is accordingly dismissed.
filed by the respondents is allowed. There shall be no order as to costs.