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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

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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.