ACKNOWLEDGMENT

I would like to express my sincere gratitude and appreciation to all those who have contributed to
the successful completion of this project. Their support, guidance, and encouragement were
invaluable throughout this journey. First and foremost, I extend my heartfelt thanks to Mr.
Rituraj Bhowal for their unwavering support and expert guidance. Their mentorship, valuable
insights, and constructive feedback played a pivotal role in shaping this project. I want to
acknowledge the assistance of my peers and colleagues who provided valuable input, feedback,
and assistance at various stages of the project. Your collaboration and discussions greatly
enriched the project. I extend my gratitude to my family and friends for their patience,
encouragement, and understanding during the course of this project. Your unwavering support
was a source of motivation and strength. Lastly, I would like to thank all the participants and
individuals who contributed their time, expertise, or information to this project. Your willingness
to participate and share your insights was crucial to the success of this endeavor. This project
would not have been possible without the collective efforts and support of all these individuals
and entities. Thank you for being a part of this journey.
 LIST OF CASES

 State of Madras v. V.G. Row reported as SCR 597 @ pg. 607

 Air India v. Nargesh Mirza and Ors.
 Randhir Singh v. Union of India and Ors
 D.S. Nakara and Ors. v. Union of India
 Makinnon Machenzie and Co. Ltd. v. Audrey D'Costa
 Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr
 Madhu Kishwar v. State of Bihar
 Suresh v. State of Kerala W.A. No. 1714 of 2003
 Ghulam Qadir v. Special Tribunal
 State of Punjab v. Devan's Modern Breweries
 Sunil Batra v. Delhi Administration
 State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr.
 Sat Pal & Co. v. Lt. Governor and Ors.
 State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr.
 Nashirwar etc. v. State of Madhya Pradesh
 State of Andhra Pradesh v. McDowell and Ors.
 Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success
 Ghulam Qadir v. Special Tribunal
 State of Punjab v. Devan's Modern Breweries
 State of Punjab and Anr. v. Dewan's Modern Breweries (supra)
 Satpal and Co. v. Lt. Governor and Ors
 Saghir Ahmed v. State of U.P. (supra)
 Madhu Kishwar v. State of Bihar (supra)
 INTRODUCTION

This case deals with issues relating to legislative provisions furthering protective discrimination,
and gender equality under Articles 14 and 15 of the Constitution. The appeal under discussion
challenged the constitutional validity of Section 30 of the Punjab Excise Act, 1914 (the Act)
which prohibited the employment of any man under the age of twenty five years or any woman
in any part of an establishment in which liquor or any other intoxicating drugs were consumed by
the public. The Court prima facie observed that the challenged provision was a pre-constitution
law, and had to be reviewed in view of the changed societal conditions and against the
touchstones of Articles 14 and 15 of the Constitution. The Court employed the strict scrutiny
standard, and the doctrine of proportionality and incompatibility to review the Act and struck
down the provision as it perpetrated sexual differences and restricted a citizen’s right to be
considered for employment, which was a facet of the right to livelihood.

In reaching this conclusion, the Court discussed the individual rights of women in international
jurisprudence to analyse and adopt relevant principles. It elaborated on the interplay of the
doctrines of self-determination and an individual interest, as well as the fundamental tension
between autonomy and security. It noted that in feminist thought, security and protection are as
much a part of gender justice discourse as the right to self-determination. However, the State
must not translate protection into censorship, and held that legislations which impinged on
individual autonomy and privacy by giving expression to oppressive cultural norms, must attract
judicial scrutiny.

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. 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 [the] impugned Act. The present law ends up
victimizing 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.
 CASE DETAILS

HOTEL ASSOCIATION OF INDIA (PETITIONER)

VERSES

UNION OF INDIA (UOI) (RESPONDENT)

COURT: HIGH COURT OF DELHI

WRIT PETITION (CIVIL) NO. 4692/1999

12 JANUARY, 2006

Equivalent citations: AIR 2008 SUPREME COURT 663, 2007 AIR SCW 7772, 2007 (13)
SCALE 762, 2008 (3) SCC 1, (2008) 2 ALLMR 59 (SC), (2008) ILR (KANT) 697, 2008 (2)
ALL MR 59 NOC, (2008) 1 SCT 80, (2008) 2 SERVLR 472, (2008) 1 RECCIVR 240, (2007)
13 SCALE 762, (2008) 146 DLT 347
 FACT OF THE CASE

The Petitioner, the Hotel Association of India, along with four others filed a writ petition before
the Delhi High Court questioning the validity of the Section 30 of the Act which prohibited the
employment of ‘any woman’ or ‘any man under the age of twenty five years’ in any part of
premises where liquor or intoxicating drugs were consumed by the public. The members
associated with the Respondent carried on business in hotels, which served liquor not only in the
bar but also in the restaurant and as part of the room service.

The High Court declared Section 30 of the Act to be ultra vires Articles 19(1)(g), 14 and 15 of
the Constitution insofar as it prohibited employment of any woman in any part of such premises,
in which liquor or intoxicating drugs were consumed by the public. The Respondent filed an
appeal to question that part of the order whereby restrictions had been put on employment of any
man below the age of twenty five years.
 PETITIONER'S ARGUMENTS

The petitioners No. 2 to 4 are Graduates of Hotel Management and those who were completing
the course of Hotel Management and looking for a career in the hospitality industry. Respondent
No. 1 is Union of India through the Secretary, Ministry of Finance, Department of Revenue,
Government of India, respondent No. 2 is the Secretary, Ministry of Finance, Department of
Revenue, Govt. of NCT of Delhi, respondent No. 3 is the Commissioner Excise, Govt. of NCT
of Delhi and respondent No. 4 is District Excise Officer (Hotels), Govt. of NCT of Delhi. While
the petitioners had raised other challenges in the writ petition, the petitioners have now confined
the challenge to the constitutional validity of Section 30 on the ground of unconstitutional
restrictions it imposes upon the rights of women to pursue their profession in Hotel Management
and other facets of hospitality industry. The petitioners have high-lighted the plea of their
fundamental rights under Article 19(1)(g) and Articles 14 and 15 of the Constitution of India
being violated and seek to draw a vital distinction between the right to trade in liquor which is
indisputably not guaranteed as a fundamental right, and the right of the petitioners 2 to 4
guaranteed under Article 19(1)(g) to carry on their profession. Since the State has admitted that
these restrictions are not imposed under Article 19(6), Section 30 is liable to be struck down as
unconstitutional. This plea has been highlighted by placing reliance on the judgment of the
Hon'ble Supreme Court in State of Madras v. V.G. Row reported as SCR 597 @ pg. 607 that
considering the reasonableness of laws imposing restrictions on fundamental rights, both the
substantive and procedural aspects of the impugned law should be examined from the point of
view of reasonableness. The nature of the right said to be infringed, the purpose behind the
imposition of restrictions and urgency of the evil sought to be remedied by the said restrictions
and the proportionality of the said restriction and the prevailing conditions are all required to be
adjudicated.

The petitioners have in fact urged that the right to trade in liquor has not been banned. Indeed it
has been encouraged by the present administration of NCT at Delhi as evident from the recent
steps taken by the administration to make liquor available more easily by having longer working
hours for liquor shops and ready availability of beer and wine in various general stores. This
shows that in fact the administration far from discouraging the trade in liquor has in fact
benefited from the liberalized measures including enhanced timings by earning more revenue. It
has been high lighted by Mr. Arun Jaitely, the learned senior counsel appearing for the petitioner
that before a dry day advertisements at public expense indicating the dry day, are inserted in
leading newspapers at considerable cost to the exchequer.

The petitioner has sought to highlight the fact that the past Century has seen several social and
economic reforms relating to emancipation of women. Section 30 is an archaic piece of
legislation reflecting the structural and social norms of the past century. The following
judgments have been relied upon by the learned senior counsel appearing for the petitioner:

(i) Air India v. Nargesh Mirza and Ors. , wherein it was held that fixing of a lower retirement age
for the air hostess, in comparison with their male counterparts is violative of the principle of
equality of employment enshrined in Article 16(1) of the Indian Constitution.

(ii) Randhir Singh v. Union of India and Ors. , wherein it was held that 'Equal Pay for Equal
Work' is not a mere demagogic slogan but a constitutional goal capable of attainment through
constitutional remedies by the enforcement of constitutional rights.

(iii) D.S. Nakara and Ors. v. Union of India , wherein it was held that Article 39(d) enjoins a
duty to see that there is equal pay for equal work for both men and women.

(iv) Makinnon Machenzie and Co. Ltd. v. Audrey D'Costa , wherein the Court adopted the
principles incorporated in the Equal Remuneration Convention, 1951 to which India is a party, to
hold that the act of paying lower emoluments to the lady stenographers than their male
counterparts was violative of the Equal Remuneration Act, 1976.

(v) Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Anr. , wherein the
Hon'ble Supreme Court observed as under:

Not long ago, the place of a woman in rural areas has been traditionally her home, but the poor
illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome
the economic hardship. They also take up jobs which involve hard physical labour.
(vi) Madhu Kishwar v. State of Bihar , wherein the Supreme Court has held that the women have
the right to equality and elimination of discrimination based on gender.

(vii) Suresh v. State of Kerala W.A. No. 1714 of 2003, wherein the Kerala High Court upheld the
provisions of the Kerala Panchayat Raj Act on the ground that the impugned provisions were in
furtherance of the Constitutional objective of ameliorating the plight of women and ensuring
their equal representation in elected bodies.

The counsel for the petitioner has also relied upon the principle of 'desuetude' and submitted that
the impugned legislation has to be viewed as rusted/obsolete legislation and therefore not being
suitable to the present socio-economic context. Such an Act has not been enforced for a long
period of time and there has been contravention of the above said provision on a large scale by
various hotels and restaurants. The learned counsel has submitted that 'desuetude' is a legal
process by which through disobedience and lack of enforcement over a long period of time, a
statute may lose its force without express or implied repeal by the Government.

Reliance has also been placed on Ghulam Qadir v. Special Tribunal and State of Punjab v.
Devan's Modern Breweries, to contend that statutory provisions which were constitutional at one
point of time can with the passage of time become unconstitutional. Finally, it is submitted by
relying upon the judgment of the Constitution Bench in Sunil Batra v. Delhi Administration , that
the courts may read down pre-constitutional laws to make them more suited to the prevailing
socio-economic context to save them from unconstitutionality. Accordingly, it has been
submitted by the learned senior counsel for the petitioner that in any event that even if this Court
upholds the constitutional validity of Section 30, the impugned Section should be read down in
such a manner so as to save it from vice of unconstitutionality.
 RESPONDENT'S ARGUMENTS

The stand of the respondent through its counsel Mrs. Avnish Ahlawat is that :

(a) The trade in liquor is not an ordinary trade and by its very nature has the potential to cause
mischief and even evil, and is a common denominator in various crimes and social problems
such as alcoholism, domestic violence and various sexual offences. This trade has been
considered inherently noxious, pernicious and res extra commercium. The respondents have
highlighted that trade in liquor is not a fundamental right and provisions can be made and
regulations can be imposed in the interest of public health, public order and Page 291 morality.
The State has the right to prohibit every form of activity in relation to intoxicants. Consequently
the prohibition of employing women and males below 25 years is a restriction is imposed by the
State on the trade of liquor which concerns the public order and morality. In State of Punjab and
Anr. v. Devans Modern Breweries Ltd. and Anr., reported as , it has been held by the Hon'ble
Supreme Court that trade in liquor is not a fundamental right and once the trade in liquor is
construed as not being a fundamental right, no further rights relating to gender bias or complete
prohibition in employment can be agitated by the petitioner.

(b) In the above judgment of State of Punjab's case (supra), the Hon'ble Supreme Court held that
restrictions could be imposed and the Court cannot go into reasonableness of such restrictions.
The petitioner being a beneficiary of the excise policy and trade in liquor being not a
fundamental right, it is the privilege of the State to impose restrictions. The State grants the right
to trade in liquor for revenue consideration. It does not lie in the mouth of the petitioner to
approbate or reprobate after having accepted the terms and conditions of the Excise policy
applicable to L-1 license bidders to challenge the constitutional validity of Section 30. The
petitioners are thus estopped from challenging such terms and conditions. Since the Hon'ble
Supreme Court has held that Article 301 to 304 are not applicable to the liquor trade, the same is
the position in respect of Articles 14, 15, 19(1)(g) and 21 of the Constitution of India.

(c) It is settled law as per the decision in Sat Pal & Co. v. Lt. Governor and Ors., reported as that
trade in liquor is not a fundamental right. The Hon'ble Supreme Court has further held that the
State in its regulatory power has a right to control or prohibit every form of activity in relation to
intoxicants apart from anything else.

(d) The restrictions as per Section 30 have been imposed as per the settled law by the Hon'ble
Supreme Court to the effect that the reasonableness has to be construed with reference to the
purpose for which the restriction is imposed with a view to promote public interest and to protect
public health, safety and morals within the territory of Delhi. The restriction is imposed on the
engagement of women in places where liquor is served keeping in mind the morality, protection
of women and as an act to realize the goals fixed in Article 47 of the Constitution of India. It has
also sought to be as a justified measure to safeguard the public health and public morals.

(e) In so far as the bar on employment of women in bars is concerned this has to be put for
safety, self respect and well being of women and the experience has shown that the society needs
to be mature enough to accept the service of liquor by the women in bars. Issues of molestation
and sexual offences occur while under the influence of liquor. The concern about the total
prohibition of the employment of women in bars has been discounted by the respondent as a
perception of few individuals but is not said to reflect the view point of the common man.
Reliance has been placed on the Page 292 decisions in State of Punjab and Anr. v. Devans
Modern Breweries Ltd. and Anr., reported as ; Nashirwar etc. v. State of Madhya Pradesh and
Ors. reported as ; and State of Andhra Pradesh v. McDowell and Ors. reported as which held that
trade in liquor is not a fundamental right.

(f) The embargo imposed by the impugned statute cannot be said to be discriminatory and
without jurisdiction and fulfills the test of reasonableness as per the judgment of the Hon'ble
Supreme Court in Saghir Ahmed's case (supra) in which it was held that while considering the
reasonableness of restrictions imposed by the State, the directive principles of State policy as set
out in Article 47 of the Constitution should be considered. This position was reiterated in Laxmi
Khandsari's case (supra).
 ANALYSIS OF THE LAW

The challenge to the constitutional validity of Section 30 is also based on Article 14 as there is
no reason to differentiate between men and women in so far as the right to carry on the
profession in hospitality industry is Page 289 concerned. The violation of Article 15 of the
Constitution of India has also been averred as the discrimination is on the basis of sex.

A provision such as Section 30, which in the year 1914 was perhaps a measure to protect the
working women from exposure to the travails of alcoholic consumption, in our view is today
outdated and far from serving the cause of protecting women, has in fact the effect of inhibiting
and curbing the employment opportunities of modern Indian women. The Indian women today
are marching step by step with men in all spheres of life. The modern Indian women is
intelligent, informed, educated, confident and fully aware of her rights. The seemingly
protectionist measure which might have had the effect suggested in 1914 can no longer stand the
test of constitutional validity in 2005. It is settled law as per the judgment of Hon'ble Supreme
Court in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I , Ghulam Qadir v.
Special Tribunal and State of Punjab v. Devan's Modern Breweries, that a provision which may
be constitutional at a given place and time may become unconstitutional on account of changed
circumstances and passage of time. While we are not entirely swayed by the fact that the
petitioner No.2 and 4 are women employees of the hospitality industry, because such espousal in
this petition by them could be involuntary and sponsored, yet we must keep in mind the fact that
the issues raised in this petition affect all women working in the hospitality industry. A
protectionist measure which affects severely the career prospects of women in any industry
cannot be held to be valid unless it is constitutionally justified.

The National Policy, at para 5.3 also provides for re-interpretation and redefinition of
conventional concepts of work wherever necessary, eg in the Census records, to reflect women's
contribution as procedures and workers.

Article 11(a) of the Convention on Elimination of Discrimination provides the right to work as
an inalienable right of all human beings. Section 30 prohibits the employment of any women in
any part of such premises in which such liquor or intoxicating drug is being consumed by the
public. The expression 'ANY PART' of such premises is rather vague and puts a blanket ban on
employment of women in most sectors of the hotel industry. If a restaurant offers alcoholic
drinks in a part of the larger premises such as banquets, restaurants and room service where the
culinary delicacies and other beverages are being offered to the customers, then if the Section 30
is given full effect to, in the above manner, the result would be that women will not be eligible
for employment in a large segment of the hotel business so covered by room service, restaurants,
bars and banquets. Such a blanket ban by way of exclusion of employment from a substantial
segment of hospitality industry cannot be termed a reasonable restriction under Article 19.

Article 39(a) of the Constitution reads as under:

Certain principles of policy to be followed by the State.-- The State shall, in particular, direct its
policy towards securing that the citizens, men and women equally, have the right to an adequate
means of livelihood;

The impugned Section 30, far from directing the public policy towards securing equality between
men and women in fact curbs the attainment of such equality.

Para 12 of the 3rd World Conference on Women, 1985 reads as follows:-

The role of women in development is directly relating to the goal of comprehensive social and
economic development and is fundamental to the development of all societies, Development
means total development, including development in political, economic, social cultural and other
dimensions of human life, as well as development of economic and other material resources and
the physical, moral, intellectual and cultural growth of human beings.

Paras 8 and 12 of the Beijing Declaration read as follows:-

The equal rights and inherent human dignity of women and men and other purposes and
principles enshrined in the Charter of the United Nations to the Universal Declaration of Human
Rights and other international human rights instruments, in particular the Convention on the
Elimination of all Forms of Discrimination against Women and the Convention on the Rights of
the child, as well as the Declaration on the Elimination of Violence against Women and the
Declaration on the Right to Development;
The empowerment and advancement of women, including the right to freedom of thought,
conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual
needs of women and men individually or in community with others and thereby guaranteeing
them the possibility of realizing their full potential in society and shaping their lives in
accordance with their own aspirations.

Section 30 is an antithesis to the contemporary era where an increasing number of female

candidates appear and pass in the entrance examinations conducted for admissions to various
hotel management courses. Equal numbers of female and male candidates can be found in
classrooms of a reputed institution offering the course of Hotel management. This shows the
enthusiasm of women to take on any challenge shown up by the hotel industry.

Article 15 of the Constitution of India reads as follows:

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.--(1) The
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them.

Nothing in this article or in clause (2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.

The provisions of Article 15(1) of the Constitution are also violated as discrimination on grounds
of sex is forbidden by Article 15(1). Article 15(3) of the Constitution permits the State to make a
special provision for women and children and the respondents have sought to justify the
impugned Section 30 as a special provision under Article 15(3). However, we are of the view
that any special provision made under Article 15(3) must satisfy the stand of constitutionality.
Article 15(3) is merely a constitutionally enabling provision which permits the State to make
special provisions for women and children which special provision must nevertheless be
constitutionally permissible. In our view, Article 15(3) of the Constitution is an enabling
provision and the mere enactment of a law under Article 15(3) does not render it immune from
the challenge of unconstitutionality. In fact we find that Section 30 purporting to be a special
provision, has today become a hindrance and impediment to women's careers in hospitality
industry. Thus Section 30 violates Article 15(1) also and is not saved by Article 15(3) as we have
found the provision to be violative of Article 19(1)(g) and Article 14, 22. In so far as the
Constitutional validity is concerned, there cannot be any estoppel as contended by the respondent
that having accepted the L-1 license to trade in liquor, the petitioners were estopped from
challenging the conditions imposed for the exercise of such right. Firstly there can be no estoppel
in respect of constitutional rights. Secondly, the petitioners 2 and 4 in any event can not be
parties to such plea of estoppel and they can certainly maintain the challenge to the vires of
Section 30.

We thus declare that Section 30 of the Punjab Excise Act, 1914 is violative of Article 19(1)(g),
Article 14 and Article 15 and unconstitutional and inoperative to the extent that it imposes
restrictions upon the employment of women in any part of the licensed premises in which liquor
or intoxicating drugs are consumed by the public.
 PRECEDENT ANALYSIS

In his 1869 essay, On Liberty, John Stuart Mill states as under:-

Human beings owe to each other help to distinguish the better from worse, and encouragement to
choose the former and avoid the latter.... But neither one person, nor any number of persons, is
warranted in saying to another human creature of ripe years, that he shall not do with his life for
his own benefit what he chooses to do with it. He is the person most interested in his own well-
being: the interest which any other person, except in cases of strong personal attachment, can
have in it, is trifling, compared with that Page 293 which he himself has; the interest which
society has in him individually (except as to his conduct to others) is fractional, and altogether
indirect....

Articles 5(a) and 11 of the Convention on the Elimination of All Forms of Discrimination
Against Women to which India is a party, read as under:

ARTICLE 5

(a) To modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices which are based on
the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men
and women

ARTICLE 11

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same
criteria for selection in matters of employment.

The National Policy for Empowerment of Women, 2001 (hereinafter referred to as the National
Policy) also inter alia lays down the following principles:
i) Create an environment through positive economic and social policies for full development of
women to enable them to realize their full potential.

ii) The de jure and de facto enjoyment of all human rights and fundamental freedoms by women
on equal basis with men in all spheres.

iii) Strengthening of legal systems aimed at elimination of all forms of discrimination against
women.

iv) Changing societal attitudes and community practices by active participation and involvement
of both men and women.

In our view, it is not necessary to consider the principle of desuetude which is sought to be relied
upon by the counsel for the petitioner in view of decision by this Court on other aspects raised in
the writ petition.

Section 30 far from protecting women from the travails of liquor trade has in fact become a
severe impediment in the way of women's careers and advancement thereof in the hospitality
industry. Thus, by its present day impact on career prospects of women in hospitality industry,
Section 30 clearly violates Article 19(1)(g) as it seeks to impose unreasonable restrictions on the
right of women to carry on their profession in the hospitality industry. In State of Madras's case
(supra) it was held that in considering the reasonableness of the law imposing restrictions on
fundamental rights, both the substantive and procedural aspects of law should be examined from
point of view of reasonableness. Section 30 which embodies restrictions on the right of women
cannot be termed as reasonable owing to the total bar imposed on the participation of women in
certain crucial facets of the hotel industry. The counsel for the respondent laid down stress on the
ill effects of liquor on women. However, it is not in dispute that far from banning the liquor trade
as envisaged under Article 47 of the Constitution of India, which Page 294 provision was relied
upon by the respondent, the respondents No. 2 to 4 have taken measures to encourage this trade
such as enhancing the trading hours of liquor shops and advertising at considerable public
expense to indicate a forthcoming dry day to prospective consumers. Certain other measures
have also been taken such as making liquor available more easily in stores. Thus, while the
liquor trade has not been banned by the NCT of Delhi, respondents No. 2 to 4 far from at least
attaining partially the goals set out in Article 47, have indeed taken measures which far from
inhibiting the liquor trade, indeed facilitate it. Since liquor is served not only in the bars but also
in restaurants, banquets and even hotel rooms, a woman's right to advance her career in the
hospitality industry would be severely jeopardized due to the aforesaid restrictions emanating
from the provisions of Section 30. The restriction imposed by Section 30 effectively rules out
women from the essential functioning of the hospitality industry. It is undeniable that women
have excelled in the hospitality industry not only in this country but worldwide, and the feminine
touch indeed lends grace and elegance to the hospitality industry which grace and elegance is not
inherently suited to the male disposition. In Municipal Corporation of Delhi's case (supra), the
Hon'ble Supreme Court had observed that the place of a woman has traditionally been her home
but the women in the present era, come out and seek various jobs which involve hard physical
labour. This vision of working women in various vocations envisaged by the Hon'ble Supreme
Court in the present era in the Municipal Corporation of Delhi's case (supra) clearly hits Section
30.

The respondent has also relied upon the judgments of the Hon'ble Supreme Court in State of
Punjab and Anr. v. Dewan's Modern Breweries (supra) and Satpal and Co. v. Lt. Governor and
Ors. to contend that since trade in liquor is not a fundamental right, the State has the right to
control or prohibit every form of activity in relation to intoxicants. But the law laid down in these
judgments Page 295 is not applicable in the instant case since the present case deals with the
right of female employees to carry on their profession in the hotel industry under Article 19(1)(a)
and not any assertion to the right to trade in liquor.

Similarly, it is clear that there is no rational ground to deny the women, the opportunity to excel
in and seek advancement in the hospitality industry like their male counterparts. This
discrimination against women imposed by Section 30 clearly violates Article 14 also. The
respondent has relied upon the judgment of Hon'ble Supreme Court in Saghir Ahmed v. State of
U.P. (supra) and Lakshmi Khandasari's case (supra) to contend that in judging the reasonableness
of restrictions imposed by the State one has to keep in view the directive principles of the
Constitution set forth in the Constitution.

In Madhu Kishwar v. State of Bihar (supra) the Hon'ble Supreme Court has held that the women
have the right to equality and elimination of discrimination based on gender. Further, the 1st
World Conference on women, held in Mexico, in the year 1975 identified three objectives which
would become the basis for the work of the U.N. On behalf of women. These three objectives
were :

Full gender equality & elimination of gender discrimination;

The integration and full participation of women in development;

An increased contribution by women in the strengthening of the world peace.

Thus, Section 30 causes a clear violation of the principle of non-discrimination against women
and violates Article 14 of the Constitution.

The modern Indian society which proclaims gender equality, greater role of women in economic
development of the country and the freedom of the women to choose their own vocation and
profession can not be allowed to be whittled down by Section 30 which inhibits the aspirations
and career Page 296 prospects of modern Indian women in the hospitality business. This is also
in consonance with para 12 of the 3rd World Conference on Women, held in Nairobi, in the year
1985 and with paras 8 and 12 of the Beijing Declaration, at the 4th World Conference on
Women, held in Beijing, in 1995.
 COURT'S REASONING

This Court however directed the learned counsel for the petitioner to give an undertaking on
behalf of petitioner No. 1 Hotel and Restaurant Association of India, that notwithstanding the
challenge raised in the writ petition, no woman employee would be compelled to serve in a bar in
case she has any objection to doing so. An undertaking on affidavit to that effect has also been
filed in this Court. We hold the petitioner No. 1 and all its members to be bound by such an
undertaking and make it clear that as per such undertaking no woman employee in the hospitality
industry serving in a hotel or a restaurant or any allied service shall be compelled to work in a
bar in case she has any objection to such deployment in a bar.
 CONCLUSION

John Stuart Mill, in his 1869 essay 'On Liberty' had observed that no one is warranted in saying
to another human creature of ripe years, that he shall not do with his life for his own benefit what
he chooses to do with it. Thus, we are of the view that the restrictions on the rights of women to
carry on their profession in the hospitality industry guaranteed by Article 19(1)(g) imposed by
the impugned Section 30 are not reasonable, and are accordingly not saved by Article 19(6).

No citizen shall, on grounds of religion, race, caste, sex, place of birth or any of them be subject
to any disability, liability, restriction or condition with regard to--

access to shops, public restaurants, hotels and places of public entertainment; or

the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of general public.

Nothing in this article shall prevent the State from making any special provision for women and
children.

The writ petition is allowed to the above indicated extent with no order as to costs.
 BIBLIOGRAPHY

Internet sources

https://indiankanoon.org/doc/945679

Books

Constitutional Law J.N. Pandey

Constitutional Law M.P. Jain