IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SECTION 30 OF THE PUNJAB EXCISE ACT, 1914
Case reserved on : 14th December, 2005
Date of Decision : 12th January, 2006
Writ Petition (Civil) No. 4692/1999
Hotel Association of India & Ors. ....Petitioners
Through Mr. Arun Jaitely, Sr. Advocate with
Mr. Ravi Sikri and Mr.V.K. Rao, Advocates.
Versus
Union of India & Ors. ...Respondents
Through Ms. Avnish Ahlawat, Advocate.
CORM
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE H.R. MALHOTRA
MUKUL MUDGAL, J.
1. The petitioner No. 1 which is the Hotel Association of India and four other petitioners, two of whom are women employees in the hospitality industry have preferred this writ petition which challenges the constitutional validity of Section 30 of the Punjab Excise Act, 1914 (hereinafter referred to as the Act), which reads as under:-
"30. Prohibition of employment of men under the age of twenty-five years and of women - No person who is licensed to sell any liquor or intoxicating drug for consumption on his premises shall during the hours in which such premises are kept open for business, employ or permit to be employed either with our without remuneration, any man under the age of 25 years or any women in any part of such premises in which such liquor or intoxicating drug is consumed by the public."?
2. 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.
3. 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.
4. 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 concerned. The violation of Article 15 of the Constitution of India has also been averred as the discrimination is on the basis of sex.
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 others (1981) 4 SCC 335, 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., (1982)1 SCC 618, 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. vs. Union of India, (1983) 1 SCC 305, 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. vs. Audrey D'Costa, AIR 1987 SC 1281, 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 vs. Female Workers (Muster Roll) & Anr., (2000) 3 SCC 224, 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, (1996) 5 SCC 125, 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.
5. 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.
6. Reliance has also been placed on Ghulam Qadir vs. Special Tribunal, 2002(1) SCC 33 at para 66 and State of Punjab vs. Devan's Modern Breweries, 2004(11) SCC 26 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 vs. Delhi Administration, (1978) 4 SCC 494 at paras 34 to 39, 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.
7. 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 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 another vs. Devans Modern Breweries Ltd. and another, reported as 2004(11) SCC 26, 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. Vs. Lt. Governor & Ors., reported as 1979(4) SCC 232 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 decisions in State of Punjab and Anr. vs. Devans Modern Breweries Ltd. and Anr., reported as 2004(11) SCC 26; Nashirwar etc. vs. State of Madhya Pradesh and others reported as AIR 1975 SC 360; and State of Andhra Pradesh vs. McDowell & Ors. reported as AIR 1996 SC 1627 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 fulfils 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).
8. 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. vs. M.V. Sea Success I, (2004) 9 SCC 512, Ghulam Qadir vs. Special Tribunal, 2002(1) SCC 33 at para 66 and State of Punjab vs. Devan's Modern Breweries, 2004(11) SCC 26 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.
9. 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 which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect..."?
(underlining supplied)
10. 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."?
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.
11. 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.
12. 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 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.
13. 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(6).
14. The respondent has also relied upon the judgments of the Hon'ble Supreme Court in State of Punjab and Another vs. Dewan's Modern Breweries (supra) and Satpal and Co. vs. Lt. Governor and others 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 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.
15. 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).
16. 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 vs. 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.
Article 39(a) of the Constitution reads as under:
"39. Certain principles of policy to be followed by the State.-- The State shall, in particular, direct its policy towards securing--
(a) that the citizens, men and women equally, have the right to an adequate means of livelihood; ."?
17. 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.
18. In Madhu Kishwar vs. 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."?
(underlining supplied)
Thus, Section 30 causes a clear violation of the principle of non-discrimination against women and violates Article 14 of the Constitution.
19. 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 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.
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."?
(underlining supplied)
Paras 8 and 12 of the Beijing Declaration read as follows:-
"8. 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;
12. 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."?
(underlining supplied)
20. 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.
21. Article 15 of the Constitution of India reads as follows:
"15. 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.
(2) 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--
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) 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.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) 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.
23. 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.
24. 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.
25. The writ petition is allowed to the above indicated extent with no order as to costs.
Sd./- MUKUL MUDGAL, J.
Sd./-
JANUARY 12, 2006 H.R. MALHOTRA, J