Anuj Garg And Others v. Hotel Association Of India And Others

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. The court's task is to determine whether the measures furthered by the State in the 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 be 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.

(Paras 50 and 51)

Having regard to the scope of Section 30 of the Punjab Excise Act, 1914 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 the instant case the end result is an invidious discrimination perpetrating sexual differences.

(Paras 49 and 55)

The instant case concerns the 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 prioritisation of rights inter se but practical implementation issues competing with a right. The instant matter involves a fundamental tension between right to employment and security. 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.

(Paras 18, 19, 33 and 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 the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship.

(Para 35)

At the same time there is no intention to further the rhetoric of empty rights. Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard the interference prescribed by the 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.

(Para 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 modelling done in this behalf. 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.

(Paras 37 and 38)

John Vallamattom v. Union of India, (2003) 6 SCC 611; Githa Hariharan v. RBI, (1999) 2 SCC 228; Air India v. Nergesh Meerza, (1981) 4 SCC 335 : 1981 SCC (L&S) 599; MCD v. Female Workers (Muster Roll), (2000) 3 SCC 224 : 2000 SCC (L&S) 331; Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125; Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : 1997 SCC (Cri) 932; Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119; Liverpool & London S.P & I. Assn. Ltd. v. M.V Sea Success I, (2004) 9 SCC 512; Bhe v. Magistrate, Khayelitsha, (2004) 18 BHRC 52 : (2005) 1 BCLR 1 (CC); Abdulaziz, Cabales and Balkandali v. United Kingdom, 1985 ECHR 7 : 7 EHRR 471; Van Raalte v. Netherlands, (1997) ECHR 6 : 24 EHRR 503; Schuler-Zgraggen v. Switzerland, (1993) ECHR 29 : 16 EHRR 405; Petrovic v. Austria, (1998) ECHR 21 : (2001) 33 EHRR 14 : (2001) 33 EHRR 307 : (1998) 33 EHHR 307; Sharron A. Frontiero v. Elliot L. Richardson, 411 US 677 : 36 L Ed 2d 583 : 93 S Ct 1764 (1973); Dothard v. Rawlinson, 433 US 321 : 53 L Ed 2d 786 : 97 S Ct 2720 (1977); United States v. Virginia, 518 US 515, 532-33 (1996), relied on

R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton: Habits of the Heart: Individualism and Commitment in American Life, 1985, p. 286; Professor Williams: The Equality Crisis: Some Reflections on Culture, Courts and Feminism published in 7 Women's Rights L. Rep., 175 (1982); C.A Littleton: Reconstructing Sexual Equality, 75 CALR 1279, July 1987, relied on

G. Constitution of India — Arts. 19(1)(g) & (6) — Freedom to choose one's profession or occupation — Scope of — Interference by State on grounds of parens patriae power — Permissibility and scope — Bar on employment of persons below 25 yrs in premises in which liquor or intoxicating drugs are consumed by the public — Invalidity of — Reasons for, explained — Inapplicability of doctrine of res extra commercium — Held, said doctrine could have been invoked if State intended to adopt a policy of prohibition — Intoxicants — Punjab Excise Act, 1914 (1 of 1914) — S. 30 — Invalidity of

H. Constitution of India — Pts. III and IV — Parens patriae power of State — Nature, scope and underlying basis for — Permissibility and scope of judicial review — Standard to be applied in adjudging validity of application of parens patriae power — Held, the parens patriae power of State is subject to constitutional challenge on the ground of infringement of right to privacy as well — Jurisprudence — Conceptual Jurisprudence — State — Parens patriae power of

I. Constitution of India — Arts. 14 and 16 — Fundamental right to employment — Existence, if any — Held, right to employment itself is not a fundamental right but in terms of Arts. 14 and 16 each person similarly situated has a fundamental right to be considered for employment

One important justification to Section 30 of the Act is the parens patriae power of the State. It is a considered fact that use of parens patriae power is not entirely beyond the pale of judicial scrutiny. 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. 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 trade-off or adverse impact, if any.

This inquiry gives the doctrine an objective orientation and therefore prevents it from falling foul of due process challenge. Best interests standard is one test in US jurisdiction in child custody matters. Similarly other standards which objectify parens patriae have evolved amongst which right to self-determination holds an important place.

(Paras 29, 30 and 32)

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.

(Paras 31 and 20)

City of Cleburne v. Cleburne Living Center, 473 US 432, 439-41 : 105 S Ct 3249 : 87 L Ed 2d 313 (1985), relied on

Right to be considered for employment subject to just exceptions is recognised 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.

(Para 25)

Occupation/service in the management of hotel industry is a specialised job. It requires specialised skill. To deprive a large section of successful young men and women from obtaining any job for which they have duly been trained 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.

(Paras 23 to 26 and 56)

Kerala Samsthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327 : 2006 SCC (L&S) 796, relied on

J. Constitution of India — Arts. 13, 32, 226 & 136 and 14, 15 & 19 and 372 — Pre-constitutional legislation — Challenge to under Arts. 14, 15 & 19, reiterated, is maintainable

(Paras 7 and 9)

K. Constitution of India — Arts. 13, 32, 226 & 136 and 245 & 372 — Validity of statute — Temporal changeability of — Held, validity of statute can change with time — Statute Law

(Paras 7 and 9)

L. Practice and Procedure — Res judicata — Finality — Applicability to cross-appeals, cross-objections or issues that respondent may raise — Reiterated, judgment of High Court having attained finality not having been challenged, cannot later be challenged by respondents in an appeal filed by the other side — Constitution of India — Art. 136 — Procedure re — Civil Procedure Code, 1908 — S. 11, Or. 41 R. 22 and Or. 8 R. 6-A

(Paras 53 and 54)

M. Interpretation of Statutes — External aids — International treaties — Relevance

(Para 10)

D-M/A/37053.C