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KERALA HIGH COURT
Dama Seshadri Naidu, J.
Dhanyamol C.J. & Anr. —Petitioners
versus
State of Kerala & Ors. —Respondents
W.P. (C) No. 3450 of 2014 (E)
Decided on 17.8.2015
Held: In the new millennium, new and revised labour standards reflect the overarching goal of decent work, which now underpins all the ILO’s activity. Gender equality is central to this goal. From the early 1980s, the focus of analysis concerning equality, in general, was reoriented from women to relations between women and men. As a result, the conviction has gained ground that any change in the role of women should be accompanied by a change in that of men; it should be reflected in their greater participation in family and household duties. By this thinking, Convention No. 156 and its accompanying. Recommendation No. 165 concerning workers with family responsibilities were adopted in 1981. These instruments apply to men as well as women with responsibilities for dependent children or other members of their immediate family and are intended to facilitate their employment without discrimination resulting from such family responsibilities.
Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. In fact, Article 15 (1) enjoins a particular application of the general principle of equality enshrined in Article 14 of the Constitution of India, the fountainhead of fraternity and equality. While Article 15 (1) mandates the State in general terms not to indulge in any form of discrimination, Clause (2) thereof particularizes it in relation to the citizens. There is no gainsaying the fact that the combined effect of Article 14 and 15 of the Constitution of India does not provide any blanket ban against passing unequal laws; there can, in fact, be laws progressively discriminatory. However, the laudability of the objective behind the seemingly discriminating law does not suffice; on the other hand, the validity is to be judged by the method of its operation and its effect on the fundamental rights of a citizen. It is further noteworthy that Article 15 (2) is horizontal in its application, thus not confining itself to the State alone.
As regards the ascendancy of women in the sphere of public employment, the Apex Court has observed that when a discrimination is sought to be made on the purported ground of classification, such classification must be founded on rational criteria. The criteria in the 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 grassroots democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, police etc. 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 the Police as also Army services.
It needs no much cogitation to hold that Rule 27A of Kerala Foreign Liquor Rules as well as condition 9 A under the head Conditions in Forms FL 3 fall foul of the Constitutional scheme of gender equality as has been spelt out in Articles 14, 1 5 (1) & (2) and 16 (1) & (2) of the Constitution of India. It is accordingly held. (Paras 24, 28, 34 & 41)
Result: Petition allowed.
Introduction:
It is an issue of judicial invalidation of legislation: Rule 27 A of the Foreign Liquor Rules is impugned as being violative of Articles 14, 15 (1) & (3), 16 (1) and 19 (l) (g) of the Constitution of India. Uncluttered by statutory references, the issue is whether a woman can be deprived of employment solely on the ground of the alleged disadvantage she suffers from owing to her gender. In the present instance, women are sought to be discriminated against because of their sex, and nothing else.
Facts in Brief:
2. The petitioners, working as waitresses/restaurant assistants in a bar attached to a hotel in Trivandrum, faced the threat of termination from their employment with the introduction of a new Rule governing the Bars attached to hotels. As per the amendment of the Foreign Liquor Rules notified as S.R.O. No. 959/2013 dated 9/12/2013, a new rule as Rule 27A is incorporated prohibiting women from being employed “in any capacity for serving liquor on the licensed premises”. In terms of the same notification, in Form FL-3 under the heading “Conditions”, a new condition has been incorporated as condition No. 9A which also contains the same prohibition for engaging women in the Bars. The raison detre for the introduction of Rule 27 A of the Rules and the consequential procedural measures is that the Government has received complaints that women are being employed to serve liquor in the licensed bars.
3. Both the petitioners, who are working as waitresses or bartenders in an FL-3 licenced hotel, have a grievance that if the newly incorporated rule is allowed to hold its field, the petitioners are bound to lose their jobs and, thus, their livelihood. The petitioners do aver that their employer has already informed them that the management is not able to provide them any other employment in the hotel, and that they are bound to be terminated very soon. The petitioners’ Exhibit PS representation, submitted to the respondents 1 to 3, does not seem to have evoked any response.
4. Thus, both the petitioners, being the bread-winners of their families with children and elder members to be supported, challenge Rule 27A of the Rules as being ultra vires of the Executive, especially in the face of Articles 14, 1 5 (1) & (3), 16 (1 ) and 19 (l) (g) of the Constitution of India.
Summary of Submissions:
5. Mr. Thomas Abraham, the learned counsel for the petitioners, has submitted that the ‘conceptual change’ of employment has advanced the status of women in the society at large, and any stray incidents of violence against women in their workplace or elsewhere is not at all a valid reason for keeping them away from any employment.
6. He further contends that no restriction can be imposed on the basis of gender against any person working in a star hotel either as per the norms/conditions fixed for its classification or under the FL-3 licence or any other law in force. According to the learned counsel, there have been no complaints whatsoever regarding any misbehaviour by any customer towards the women employees working in the licensed premises. When tourism is aggressively promoted, the need for involving women in the hospitality industry cannot be overemphasized.
7. The Government’s avowed objective in bringing about the statutory changes in depriving the women of their employment opportunities, according to the learned counsel, is entirely on a misplaced assumption of its role as parens patriae. The governmental policy, in essence, is myopic and archaic, contends the learned counsel.
8. The learned counsel has also contended that the issue raised in the present writ petition has been squarely covered by the decision of the Hon’ble Supreme Court in Anuj Garg and Others vs. Hotel Association of India and Others, AIR 2008 SC 663. He has also placed reliance on Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149. wherein the Apex Court has adverted to the Convention on the Elimination of All Forms of Discrimination a
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