In the Supreme Court of India (2008) 3 SCC 1 Petitioner Anuj Garg and Ors Respondent Hotel Association of India and Ors. Date of Judgement 06/12/2007 Bench Justice S.B. Sinha; Justice Harjit Singh Bedi
The case was first filed by the first Respondent, the Hotel Association of India, with four others before the Delhi High Court[i] to check the Constitutional validity of Section 30 of the Punjab Excise Act, 1914 that prohibits 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. The High court declared the law in question ultra vires of the Articles 14, 15 and 19(1)(g) of the Constitution of India to the extent that it prohibits employment of any woman in any part of such premises, in which liquor or intoxicating drugs are consumed by the public.
The NCT of Delhi seems to support the Judgment but seeks to support the impugned provision as a respondent in the case. The appellants are a few citizens of Delhi, questioning the validity of the impugned judgment. This is also a Special Leave Petition by the respondent, Hotel Association of India whose members have a business in Hotels, and Liquor is served not only in bars but also in restaurants and rooms as room service. This is to question the law in concern as far as the employment of men below 25 years in the public places serving liquor or intoxicating drugs is concerned.
Laws and statutory Provisions Concerned
- Section 30 of the Punjab Excise Act, 1914.
- Articles 14, 15, 16, 19, 21, and 372 of the Constitution, 1950.
Issues Concerned :
- Whether the restrictions based on sex and age under Section 30 of the Punjab excise Act,1914, permissible as per Articles 14 and 15 of the Constitution of India?
- Whether a restriction on employment of a particular group of people, not a hindrance to their fundamental right to equality in matters of public employment under Article 16?
- Does balancing safety concerns of women not conflict with the individual rights of the women if the primary aim is to protect women in employment venues is concerned under Articles 15 and 16 of the constitution?
- What standard of judicial scrutiny should the legislations like such, that ‘aim of protective discrimination’, go through?
- Whether the state can interfere with someone’s right to the profession based on ‘parens patriae’[ii] power?
Contentions put forward:
- The counsel on behalf of the appellants, Mr. Rajiv Dutta submitted that since liquor is not something protected under the Constitution and cannot be said to be anyone’s fundamental right. Being Res extra Commercium,[iii] the state has the right to make a law and/or continue the old law imposing reasonable restrictions on the nature of employment therein.
- On the other hand, the advocate from the respondent’s side, Mr. Arun Jaitley submitted the arguments in favor of the judgment of the High court of Delhi and sought the remaining prohibition on the 25 years age limit to be removed.
The judgment of Delhi High court was upheld and the court said that legislation, in the present case, results in invidious discrimination perpetrating sexual differences. The restriction that was left untouched by High Court was removed and this court allowed for the employment of men under the age of 25 years in the concerned industry. The reasons behind coming to the conclusion are mentioned henceforth.
- It was noted that though the Act is pre-constitutional legislation and is protected by Article 372 of the Constitution; the law permits questioning its validity in the backdrop of articles 14,15 and 19 of the Constitution. Keeping in mind the societal condition, the law must be valid in the time it was passed but since the scenario has completely changed in the both domestic and international arena, the law can be declared invalid. Mentioning the John Vallamattom judgment,[iv] it was stated that “The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by the passage of time.”
- The Court stated that the fundamental conflict between Right to employment and security remains a difficult and tricky jurisprudential matter. Where the right to self-determination is of utmost importance in gender justice discourse, security, and protection to carry out such choice in a state of violence-free being has to be kept in consideration. Nonetheless. the present law ends up victimizing the subject in the name of protection, making women vulnerable to state protection in the same manner the act questioned takes away their freedom. In that regard, the interference prescribed by the state for pursuing the ends of protection should be proportionate to the legitimate aims. Instead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wise approach and should reflect in the law enforcement strategies of the state as well. It should be the state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance with the requirements of the profession they choose to follow.
- With respect to the ‘res extra commercium’ issue; it was said that hotel management is a specialized job and it would be unjust to deny jobs to young, talented, and qualified people. The doctrine, therefore, doesn’t apply in this case and could only be invoked if the State adopted a policy of outright prohibition. Referring to the case of Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others,[v] , it was stated ‘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.’
- Through this judgment, it was established that both direct and indirect discrimination forms a part of Article 15 and the State should not rely on stereotypes to justify legislation which is prima facie discriminatory. Also, the Right to employment is not a Fundamental Right in Part III of the Constitution but Article 16 guarantees right to to be considered employment, subject to reasonable restrictions, making it a fundamental right thereof.
- The justification of Section 30 under the ‘parens patriae’ power of the state was outrightly rejected by the court stating that subject matter of doctrine can only be adjudged on two counts: in terms of its necessity and assessment of any tradeoff or adverse impact if any. Also, the power is subject to constitutional challenge on the ground of the Right to Privacy and young people of India should be allowed to make their own choices and in this age of the internet, they are well aware of what is best for them.
- The judgment sets an authority to deal with legislation that seeks ‘protective discrimination’ stating that such legislation should go through ‘strict judicial scrutiny’, where it should not be only assessed on its proposed aims but rather on the implications and the effects. The law in question was said to suffer from incurable fixations of stereotype morality and conception of sexual role. The test to review the protective discrimination statute was laid down as a two-step process including the legislative interference should be justified by principle and should be proportionate in measure.
- Leading the Court to review the doctrine of Proportionality which states that there should be a reasonable relationship of proportionality between the means used and the aim pursued i.e the Court should determine whether the legislation brought by the state furthers the aim of protecting women’s interests in proportion to the already well-settled norms of gender such as autonomy, equality of opportunity, right to privacy, etc.
The case is an excellent example of how the essence of the Constitution lies in the dynamic and purposive interpretation of its text and the constitutional Courts breathe life into the constitution by doing so. Dynamic Interpretation ensures the Constitution’s endurance across generations. The purpose of Constitutionalism is in the transformation of society and dynamic interpretation allows progressive changes and realization of rights as the societies evolve[vi] The rights of the women as rightly mentioned in the Judgement were not realized when the legislation was formed and at the time of formation of Constitution, the aim of Constitution makers to incorporate Articles 14,15 and 16 was to ensure equality of rights between men and women and the duty, therefore, fell on the state to ensure the same. When the classification is sought to be done on a gender basis, it should be a rational one. The legislation was discriminatory in the 20th century when the hospitality sector was not open to women but in the 21st century, it gets invalidated on the same grounds. It is rightly observed by the court that the rights of the women undoubtedly rest in the present age and this case paves a great path in building feminist jurisprudence by busting the sex stereotypes that have been followed since time immemorial.
“The views of the authors are personal“
[i] Civil Writ Petition no. 4692 of 1999 before the High court of Delhi.
[ii] The doctrine of Parens Patriae is a Latin phrase that has its roots in English Common Law. It grants the State with the power to act as a guardian for those who are unable to care for themselves.
[iii] Res Extra Commercium is a Latin phrase that literally means “a thing outside commerce”. It is a doctrine that originated from Roman Law that certain things are insusceptible to being traded as they may not be the object of private rights.
[iv]John Vallamattom case (2003) 6 SCC 611.
[v] Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others, (2006) 4 SCC 327.
[vi] Rights over wrong, The Indian Express, Written by Arundhati Katju September 8, 2018