Important Point
The test to review a Protective Discrimination statute entails a two pronged scrutiny,firstly the legislative interference (induced by sex discriminatory legalisation) should be justified in principle, and secondly the same should be proportionate in measure.

Headnote:Punjab Excise Act, 1914 – Section 30 –Prohibition of employment of “any man under age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drug is consumed by public under section 30– Writ petition there against by Respondent1 Hotel Association of India challenging constitutional validity of said Section – High Court by reason of impugned judgment held Section 30 to be ultra rives Articles 19(1)(g), 14 and 15 of constitution of India to extent it prohibited employment of any woman in any part of such premises, in which liquor or intoxicating drugs were consumed by public – Appeal – Plea of appellants that as nobody has any fundamental right to deal in liquor, being “res extra commercium” State had right to make a law and\or continue old law imposing reasonable restriction or nature of employment therein – Held occupation/service in 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, would be wholly unjust - State cannot invoke doctrine of ‘res extra commercium’ in matter of appointment of eligible persons - Said principle could have been invoked if 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 - Only on a pre-supposition that there is a possibility of some incident happening, one cannot declare a law intra vires which is ex facie ultra vires - The test to review such a Protective Discrimination statute entails a two pronged scrutiny,firstly the legislative interference (induced by sex discriminatory legalisation) should be justified in principle, and secondly the same should be proportionate in measure-The Court’s task is to determine whether measures furthered by State in form of legislative mandate, to augment legitimate aim of protecting interests of women are proportionate to 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 basis of sex, race, caste or any other like basis-In fine, there should be a reasonable relationship of proportionality between means used and the aim pursued- End result is an invidious discrimination perpetrating sexual differences - Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years - 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 – No infirmity found in impugned decision of High Court - Appeal dismissed.(Paras 25, 47 to 55)
       Facts of the Case:-
       1.Section 30 of Punjab Excise Act, 1914 prohibited employment of “any man under age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drug is consumed by public. Writ petition there against was filed by Respondent1 Hotel Association of India herein in the instant case challenging constitutional validity of Said Section. High Court by reason of impugned judgment held Section 30 to be ultra rives Articles 19(1)(g), 14 and 15 of constitution of India to extent it prohibited employment of any woman in any part of such premises, in which liquor or intoxicating drugs are consumed by public.
       2.Present Appeal has been filed against said order of High Court.
       Findings of the court:
       The Court held that occupation/service in 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, would be wholly unjust. State cannot invoke doctrine of ‘res extra commercium’ in matter of appointment of eligible persons. Said principle could have been invoked if 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. Only on a pre-supposition that there is a possibility of some incident happening, one cannot declare a law intra vires which is ex facie ultra vires. End result is an invidious discrimination perpetrating sexual differences. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. 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. No infirmity was found in impugned decision of High Court. Appeal was dismissed.
        Result: Appeal dismissed.

Judgement Key Points

The legal document discusses the constitutional validity of a statutory provision that restricts employment of women and young men below a certain age in the context of the hospitality industry, particularly where liquor is served. The court emphasizes that employment in hotel management is a specialized field requiring specific skills, and depriving trained individuals of employment opportunities solely based on age or gender discrimination is unjust. The doctrine of ‘res extra commercium,’ which permits regulation of trade in liquor, cannot be extended to employment practices in related industries, especially when such regulations result in discrimination.

The court highlights that the legislation must be justified on legitimate grounds and must be proportionate to the aim pursued. Discrimination based on sex or age must be scrutinized under a standard of reasonableness and proportionality, ensuring it does not perpetuate stereotypes or oppress individual autonomy. The importance of evolving social norms and the recognition of gender equality are underscored, asserting that laws should adapt to societal changes and promote equal opportunities.

Furthermore, the court notes that restrictions that result in invidious discrimination or that are rooted in outdated stereotypes violate constitutional principles of equality and personal freedom. The balance between security concerns and individual rights is acknowledged as complex, but any legislative interference must be proportionate and justified by a legitimate aim. Ultimately, the court dismisses the appeal against the high court's decision, affirming that the challenged legislation unjustifiably infringes upon constitutional rights and principles of equality.

judgment

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 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 functi

Click Here to Read the rest of this document

2007 Supreme(SC) 1552

2008(1) Supreme 17Supreme Court of indiaS.B. Sinha & Harjit Singh Bedi, JJ.Anuj Garg & Ors. — PetitionerVersusHotel Association of India & Ors. — RespondentsAppeal (civil) 5657 of 2007Decided on 06-12-2007

Important PointThe test to review a Protective Discrimination statute entails a two pronged scrutiny,firstly the legislative interference (induced by sex discriminatory legalisation) should be justified in principle, and secondly the same should be proportionate in measure.

2008(1) Supreme 17
Supreme Court of india
S.B. Sinha & Harjit Singh Bedi, JJ.
Anuj Garg & Ors. — Petitioner
Versus
Hotel Association of India & Ors. — Respondents
Appeal (civil) 5657 of 2007
Decided on 06-12-2007

Important Point
The test to review a Protective Discrimination statute entails a two pronged scrutiny,firstly the legislative interference (induced by sex discriminatory legalisation) should be justified in principle, and secondly the same should be proportionate in measure.