TMI Blog2007 (12) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... the bar but also in the restaurant. Liquor is also served in rooms as part of room service. First 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. Appellants herein, who are a few citizens of Delhi, are before us. A 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. Submissions 5. Mr. 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following text from Habits of the Heart: Individualism 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 changes. The 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. Personal 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. These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation. International Treaties 9. 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. 10. In Githa Hariharan v. Reserve Bank of India [(1999) 2 SCC 228], this Court was faced with construing Section 6(a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, ultra vires the equality clause in the Constitution. The 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 dignity. 14. In 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 interests. Equality 20. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hops 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. It was further observed: Furthermore, 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 regulated. Parens Patriae Power of State 27. 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. 28. Parens Patriae power has only been able to gain definitive legalist orientation as it shifted its un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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. 36. 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 behalf. 37. 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. 38. 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. In the case of Abdulaziz, Cabales And Balkandali v. United Kingdom, [1985] ECHR 7 the court held: As 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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. 41. 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. 42. 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. The court noted in this case of military service: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental justification for the decision is that women as guards will generate sexual assaults. With 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. He also notes the nature of protective discrimination (as garb) in the following terms: The 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 roma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, male and female 'differences' must be costless relative to each other. 47. 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. In 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. Doctrine of Proportionality and Incompatibility would definitely find mention in such a discussion. 48. The test to review such a Protective Discrimination statute would entail a two pronged scrutiny: (a) the legislative interference (induced by sex discriminatory legalisation in the instant case) should be justified in principle, (b) the same should be proportionate in measure. 49. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibility of some incident happening, we cannot declare a law intra vires which is ex facie ultra vires. 52. 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. It, having allowed the judgment of High Court to attain finality, is estopped by records to question the correctness of the impugned judgment. Conclusion 53. In the instant case the end result is an invidious discrimination perpetrating sexual differences. 54. 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. 55. For the reasons aforementioned, we do not find any infirmity in the impugned decision of the High Court. The appeal is accordingly dismissed. Cross-appeal filed by the respondents is allowed. There shall be no or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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