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CASE NO.:

Appeal (civil) 5657 of 2007

PETITIONER:

Anuj Garg & Ors

RESPONDENT:

Hotel Association of India & Ors

DATE OF JUDGMENT: 06/12/2007

BENCH:

S.B. Sinha & Harjit Singh Bedi

JUDGMENT:

J U D G M E N T

CIVIL 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 :

1. Leave granted.

Introduction

2. 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.

Background Facts

3. 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.

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 '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.

6. Mr. Arun Jaitley, learned senior counsel appearing on behalf of the

respondents, on the other hand, supported the impugned judgment.

Constitutional Backdrop

7. The 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

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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.

In 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 :

"The 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 time."

Referring 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 :

"33. 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."

8. 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:

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) 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

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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.

11. In 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.

12. In 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 Municipal Corporation.

13. In 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.

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 recommendations of CEDAW for construing the nature and

ambit of constitutional guarantee of gender equality in our Constitution.

15. In 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.

16. In 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 :

"It 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

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in consonance with the scheme of Indian law

keeping in view the changing global scenario.

Global 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."

Setting of the Debate

17. In 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 \026 of enforcement and security.

18. 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.

19. At 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

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

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.

21. In Bhe & Ors. v. The Magistrate, Khayelisha & ors. [(2004) 18 BHRC

52], the South African Constitutional Court 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.

It was 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

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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.

Further, 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.

Remark on changing realities

22. We 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.

23. 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.

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 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.

In the 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.

Res Extra Commercium Issue

25. 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.

26. In Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and

Others [(2006) 4 SCc 327], this Court held:

"When 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

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opposed to public policy, cannot be restricted.

Such a 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."

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 underpinning from being merely moralist to a

more objective grounding i.e. utility.

29. The subject matter of the Parens Patriae power can be adjudged on

two counts:

(i). in terms of its necessity and

(ii). assessment of any tradeoff or adverse impact, if any

30. 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 \026 a citizen of India should be allowed to live her life on

her own terms.

31. Let us understand various standards which objectify Parens Patriae.

Best interests 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.

Right to employment vis-a-viz Security: Competing Values

32. The instant matter involves a fundamental tension between right to

employment and security.

33. 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.

34. 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

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of autonomy should not be so strong that the essence of the guarantee is lost.

State protection must not translate into censorship.

35. At 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.

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 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 Convention."

Following Abdulaziz (supra) the European Court of Human Rights

once again observed in Van Raalte v. The Netherlands, [1997] ECHR 6:

"In 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.

Moreover, 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)."

(emphasis supplied)

(See also Schuler-Zgraggen v. Swizerland, [1993] ECHR 29; and

Petrovic v. Austria, [1998] ECHR 21)

Stereotype Roles and Right to Options

39. Professor Williams in "The Equality Crisis: Some Reflections on

Culture, Courts, and Feminism" published in 7 WOMEN'S RTS. L. REP.

175 (1982) notes issues arising where biological distinction between sexes is

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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 world over.

40. 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.

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:

"There can be no doubt that our Nation has had a

long and unfortunate history of sex discrimination.

Traditionally, such discrimination was rationalized

by an attitude of 'romantic paternalism' which, in

practical effect, put women, not on a pedestal, but

in a cage\005

As a result of notions such as these, our statute

books gradually became laden with gross,

stereotyped distinctions between the sexes\005"

The court also maintained the strict scrutiny standard for review and

repelled the administrative convenience argument in the following terms:

"In 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

dictates constitutionality.

On the 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 the (Constitution).

We 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

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challenged statutes violate the Due Process Clause

of the Fifth Amendment."

43. In 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:

"It 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.

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 "romantic paternalism"

and 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.

The 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

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acceptable manner. To deprive women of job

opportunities because of the threatened behavior of

convicted criminals is to turn our social priorities

upside down."

The Standard of Judicial Scrutiny

44. It 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.

The 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.

45. No 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.

46. Professor Christine A. Littleton in her widely quoted article

RECONSTRUCTING SEXUAL EQUALITY, 75 CALR 1279, July 1987

makes a useful observation in this regard:

"The 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."

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 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.

50. In 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 :

"The heightened review standard our precedent

establishes does not make sex a proscribed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

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

51. 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.

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 order as

to costs.