Citation: (2008) 3 SCC 1, ILDC 2897 (IN 2008)
Theme: Right to Equality
Subject: Constitutional law
· Section 30 of the Punjab excise act, 1914(Indian)(act) had banned the employment of ‘any man under the age of 25 years’ or ‘any woman’ in any part of such premises in which liquor or intoxicating drugs were consumed by the public.
· The hotel association of India (association) challenged the constitutional validity of section 30 of the act. The members of the association. Who operated hotels, served liquor not only in bars but also in restaurants and rooms as part of room service.
· The Delhi high court, on a writ petition by the association, declared section 30 of the act ultra vires and articles 19(1)(g) (to practise any profession or to carry on any occupation, trade or business), 14(equality before law), and 15 of the constitution of the republic of India, 1949(India) (constitution) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), to the extent that it applied to the employment of women.
· A number of citizens of Delhi challenged the section of the order of the Delhi high court that prohibited the employment of any man below the age of 25.
· The act was colonial, pre-constitutional legislation, promulgated by the British for colonial India. It had been retained by virtue of article 372 of the constitution. Its validity, nevertheless, could be challenged on the basis of articles 14,15 and 19 of the constitution. What could have been a valid piece of legislation due to prevailing societal standards at the time of enactment could be declared invalid due to changes nationally and internationally. The interpretative changes of the act affected by the passage of time had to be considered.
· The declaration on the right to development,(10 march 1994) UN Doc E/CN.4/RES/1994/95 and article 18 of the international Covenant on civil and political rights (16 December 1966) 999 UNTS 171, entered into force 23 march 1976 emphasized that while there was a presumption that colonial laws were constitutionally valid, changed circumstances were to be factored in when assessing their constitutionality.’ changed social psyche and expectations’ were important factors to be considered in the preservation of law. A decision on its relevance would more often be a function of the relevant time.
· International treaties had been relied upon in past judgements in the domain of gender equality and the rights of women. In Hariharan v reserve bank of India, supreme court decision (1999) 2 SCC 228, 17 February 1999 the supreme court relied upon the resolution 50/203 on the follow up to the 4th world conference on women and full implementation of the Beijing Declaration and the platform for action UN/Doc A/RES/50/203, 22 December 1995 and the convention on the eliminations of all forms of discrimination against women (18 December 1979) 1249 UNTS 13, entered into force 3 September 1981 (CEDAW), which obliged state parties to address all forms of discrimination against women through appropriate measures. Domestic courts had to enforce obligations arising from international conventions as long as they were not inconsistent with domestic laws. In municipal corporation of Delhi v female workers (muster roll), supreme court decision (2000) 3SCC 224; ILDC 2969(IN 2000), 8 March 2000, maternity leave under the maternity benefit act, 1961 (India) had to be extended to casual workers or those who worked on a muster roll basis on daily wages. Article 11 of the CEDAW and the universal declaration of human rights (10 December 1948) resolution 217 (III); UN Doc A/810 91 were to be read into service contracts as they prohibited discrimination in any form against women. The cases of Kishwar v State of Bihar and ors, supreme court decision (1997) 6SCC 241; ILDC 2107 (IN 1997), 13 august 1997 had used these instruments to interpret the constitution, prohibiting discrimination against women in any form.
· The preamble to the constitution of the international labour organization (as amended) (1 April 1919), 15 UNTS 40, International labour organization, entered into force 28 June 1919 recognized the principle of equal renumeration for work of equal value. This principle was in conformity with provisions of the constitution’s ideals and its achievement was expressly sought under article 39(d) of the constitution. Non- conformity with equal pay for equal work would violate equality before the law (article 140 as well as equality in employment opportunity (article 16 of the constitution).
· The hospitality sector had grown immensely. If the ban on the employment of persons below the age of 25 was upheld, it would render many unemployed. The right to employment, with exceptions, was a fundamental right under article 16 of the constitution. When discrimination was sought to be made on the purported ground of classification, such classification had to be based on rational criteria. What might have been rational criteria according to twentieth century societal conditions might not be so in the 21st century. There had been unprecedented progress in the professional advancement of women in India in the last 60 years.
· Gender equality had been recognized as a goal of the parties to the convention for the protection of human rights and fundamental freedoms (4 November 1950) 213 UNTS 222; 312 ETS 5, entered into force 3 September 1953(ECHR). The European court of human rights (ECtHR) in Abdulaziz and ors v United kingdom, admissibility, merits, just satisfaction, app no 9214/80, app no 9473/81, app no 9474/81, a/94; IHRL 52 (ECHR 1985);  ECHR 7,28 had stressed that a very strong reason must be given for allowing discrimination based on sex.
· Instead of seeking the total prohibition of women in vars where liquor was served, the state should focus upon the removal of difficulties arising out of sex differences. They should be allowed to pursue their desired profession, free from any policy rooted in societal conditions which were oppressive against women and their rights to privacy.
· Privacy rights embodied the autonomy of choosing a profession, and security concerns should be aimed towards securing this autonomy. Safeguarding this autonomy should not mean that the right was extinguished. The state’s protection should not translate to censorship because of the act. Women were vulnerable, but in reaching its purported goal, the act had ended up victimizing rather than protecting them. Legislative interference had to be proportional and with a legitimate aim.
· The protection discrimination statute had to fulfil two conditions: legislative interference should be principally justifiable and it had to be proportionate. The legitimate aim of protection of women should be balanced against the other constitutional and internationally recognized rights of equality of opportunity, autonomy, and the right to privacy. Freedom of opportunities entailed pursuing one’s professional goals without discrimination on any ground, which included inter alia on the basis of caste, sex, race or gender. There had to be a reasonable relationship between the means and the aim purported to be achieved.
· The Delhi High Court’s decision was affirmed.
· The supreme court made it very clear that there could not be any ground for discrimination in employment among males or females. This decision was one of the very rare cases which was not only grounded in the diversity of the ECtHR but it also gave contextual analysis and considered the on-ground effect of the legislation
· The court relying upon its law jurisprudence on gender equality and sex based discrimination, dealt with international law indirectly as international law was interpreted and invoked in those cases to address gender inequality and sex discrimination. It referred to jurisprudence from the United States, the United kingdom, and the ECtHR to highlight direct and indirect discrimination couched in protective terms; protecting women by prohibiting them from work.
Justification of discrimination based on culture and tradition, which had historically perpetuated and validated the suppression of women, axiomatically for their own ‘security’, ‘well-being’, or a combination thereof, had to be questioned constitutionally. The act had to be seen from the perspective of time and its utility in the present, and whether it was still fulfilling its purpose. The principle of classification which involved distinguishing and separating one particular class from another in pursuit of an aim, which may have been valid during the era act was promulgated could be rendered invalid due to a change of circumstances.
Contributed by: Kanishka Bhati (OP Jindal Global University)
The views of the author are personal only. (if any)