Karnataka High Court
M/S Akansha Enterprises vs The Additional Secretary To Government on 22 April, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 13.03.2024
Pronounced on :22.04.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.37313 OF 2013 (GM - POLICE)
BETWEEN:
1. M/S. AKANSHA ENTERPRISES
NO.44/1, K.H.ROAD
BENGALURU - 560 027
REPRESENTED BY ITS PARTNER
MR.M.S.JAYRAM.
2. M/S. CHIEF-INN REGENCY
PREMIER BAR AND RESTAURANT
NO.4, RING ROAD
DOMLUR, BENGALURU - 560 071
REPRESENTED BY ITS PROPRIETOR
MR.C.RAMESH.
3. M/S. SAI LEELA LINK (NARTHAKI)
NO.43/44, CHANDRA PRABHA COMPLEX
RESIDENCY ROAD,
BENGALURU - 560 025
REPRESENTED BY ITS
MANAGING PARTNER
MR.M.JAVERARAYI GOWDA.
2
4. M/S. CHEF-INN DELUXE
NO.1-18, ACHAIAH SHETTY LAYOUT
RMV EXTENSION, MEKRI CIRLCE
BENGALURU - 560 080
REPRESENTED BY ITS PROPRIETOR
MR.C.RAMESH.
5. M/S. SANNIDHI ENTERPRISES
(DAWATH) BAR AND RESTAURANT
NO.340, MARUTHI PLAZA
1ST FLOOR, 1ST " B " MAIN
7TH BLOCK, KORAMANGALA
BENGALURU - 560 034
REPRESENTED BY ITS
MANAGING PARTNER
MR. DINESH B. SHETTY .
6. M/S. BRIGADE DREAMS
BAR AND RESTAURANT
NO.140, BRIGADE ROAD
BENGALURU - 560 021
REPRESENTED BY ITS
PROPRIETOR
SRI ARJUN KUMAR P.V.,
7. M/S.KUBER GROUP OF HOTELS
NO.897/B, 80 FEET ROAD
6TH BLOCK, KORAMANGALA
BENGALURU 560 095
REPRESENTED BY ITS PARTNER
MR.K.N.NAGARAJ.
8. M/S. VKL HOSPITALITY
VKL RESORTS INDIA PVT. LTD.,
NO.120-125, KH ROAD
BENGALURU - 560 027
REPRESENTED BY ITS CEO
MR.G.THIMMA REDDY.
3
9. M/S. AISHWARYA BAR & RESTAURANT
NO.23/24, 3RD MAIN
OPP. KAMATH YATRI NIVAS
GANDHINAGAR,
BENGALURU - 560 009
REPRESENTED BY ITS PROPRIETOR
MR.P.S.MOHAN KUMAR.
10 . M/S. NANDI HOTELS
NO.96, INTERMEDIATE RING ROAD
AMAR JYOTHI LAYOUT
DOMLUR RING ROAD
BENGALURU - 560 071
REPRESENTED BY ITS PARTNER
MR.SUDHAKAR SHETTY.
11 . M/S.BRIGADE GARDENS
NO.48, BRIGADE ROAD
BENGALURU - 560 001
REPRESENTED BY ITS PARTNER
MR.Y.R.MANOHAR.
12 . M/S. SHASHWATHI ENTERPRISES
(PORT OF PAVILION)
1/3, SUJATHA COMPLEX
1ST MAIN ROAD, GANDHINAGAR
BENGALURU
REPRESENTED BY ITS PARTNER
MR. MOHAN M. SHETTY.
13 . M/S. SAMRUDHI ENTERPRISES
(SANGEETH),
SANGEETHA BAR AND RESTAURANT,
NO.186/10, VEENA MANSION,
S.C.ROAD, OPP. NATARAJA THEATRE
SESHADRIPURAM, BENGALURU - 560 020
REPRESENTED BY ITS PARTNER
MR.ASHOK HEGDE.
4
14 . M/S. NISHA PALACE, BAR AND RESTAURANT
NO.1 & 2, S.N.S.PLAZA
KUMARA KRUPA ROAD
BENGALURU
REPRESENTED BY ITS
PROPRIETOR
SRI G.R.RAJASHEKAR.
15 . M/S.SHRUNGAR BAR AND RESTAURANT
NO.59/1, S.C.ROAD
GANDHINAGAR
BENGALURU
REPRESENTED BY ITS
PROPRIETOR
G.R.RAJASHEKAR.
16 . M/S.RAJDHANI, BAR AND RESTAURANT
NO.66, 1ST FLOOR, S.C.ROAD
BENGALURU
REPRESENTED BY ITS
PROPRIETOR
SRI MOHAN R. SHETTY.
17 . M/S.PINGARA BAR AND RESTAURANT
NO.168, 7TH MAIN, 1ST BLOCK
KORAMANGALA
BENGALURU
REPRESENTED BY ITS PROPRIETOR
SRI PREMANATH SHETTY.
18 . M/S. CHWFIN SENORITA
CENTER POINT, NO.56/25
4TH FLOOR, RESIDENCY ROAD
BENGALURU - 560 025
REPRESENTED BY ITS PROPRIETOR
C.RAMESH.
5
19 . FOUR FRIENDS ENTERPRISES
OLD NO.84, NEW NO.117
BALAJI PLAZA, LALBAGH ROAD
BENGALURU
REPRESENTED BY ITS PARTNER
SRI JAYRAM.
20 . CHANDNI BAR AND RESTAURANT
NO.31/1, CASTLE STREET
ASHOKNAGARA
BENGALURU
REPRESENTED BY ITS PROPRIETOR
SRI THIMMA REDDY.
21 . SMT. ASHA
AGED ABOUT 25 YEARS
D/O KALE GOWDA
NO.137, 11TH CROSS, 15TH MAIN
PAPAYA GARDEN
BOMASONKERE
BENGALURU
PRESENTLY WORKING AS WAITER AT
M/S SHASHWATHI ENTERPRISES
AT GANDHINAGAR
BENGALURU.
22 . SMT. SUFIYA BEGUM MANSUR
AGED ABOUT 35 YEARS
D/O ABDUL GAFUR MANNUR
NO.23/585, 2ND FLOOR
BEHIND MANYATHA TECH PARK
MARIYANNA PALYA
BENGALURU - 560 024
PRESENTLY WORKING AS WAITER
AT M/S SHASHWATHI ENTERPRISES
AT GANDHINAGAR, BENGALURU.
6
23 . SMT. MANSHI SUNAR
AGED ABOUT 23 YEARS
D/O D.B.SUNAR
NO.7, 4TH CROSS
CHAMUNDINAGAR
BENGALURU - 560 032 .
24 . SMT. GULSANA PATHAN
AGED ABOUT 25 YEARS
D/O SULTHAN PATHAN
NO.21, 6TH CROSS,
DODDANNA LAYOUT
R.T.NAGAR
BENGALURU - 560 032 .
... PETITIONERS
(BY SRI R.HEMANTH RAJ, ADVOCATE)
AND:
1. THE ADDITIONAL SECRETARY TO GOVERNMENT
HOME DEPARTMENT
(LAW AND ORDER)
2ND FLOOR, VIDHANA SOUDHA
BENGALURU - 560 001.
2. THE PRINCIPAL SECRETARY
GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU - 560 001.
3. THE COMMISSIONER OF POLICE
BENGALURU CITY
INFANTRY ROAD
BENGALURU - 560 001.
7
4. THE DEPUTY COMMISSIONER OF POLICE
(SOUTH-EAST) KASTURBA ROAD
BENGALURU - 560 001.
5. THE DEPUTY COMMISSIONER OF POLICE
(CENTRAL) KASTURBA ROAD
BENGALURU - 560 001.
6. THE DEPUTY COMMISSIONER OF POLICE
(WEST) KASTURBA ROAD
BENGALURU - 560 001.
7. ADDITIONAL COMMISSIONER
CENTRAL CRIME BRANCH
CHURCH CIRCLE
MYSURU ROAD
BENGALURU - 560 005.
8. JOINT COMMISSIONER
CENTRAL CRIME BRANCH
CHURCH CIRCLE
MYSURU ROAD
BENGALURU - 560 005.
9. DEPUTY COMMISSIONER OF POLICE
CENTRAL CRIME BRANCH
CHURCH CIRCLE
MYSURU ROAD
BENGALURU - 560 005.
10 . THE STATION OFFICER
UPPER PETE POLICE
BENGALURU - 560 002.
11. SRI AMRUTHESH N.P.,
S/O LATE N.C.PUTTUSWAMY
AGED ABOUT 54 YEARS
8
NO.1/1, 7TH CROSS, 15TH MAIN
J.C.NAGAR, KURUBARAHALLI
BENGALURU - 560 086.
(AMENDMENT CARRIED OUT AS PER COURT
ORDER DATED 16.12.2020)
... RESPONDENTS
(BY SRI K.S.HARISH, GOVERNMENT ADVOCATE FOR R-1 TO R-10;
SRI AMRUTHESH N.P., R-11 PARTY-IN-PERSON)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AND
DECLARE THAT GUIDELINES ISSUED BY R1 WHICH IS PUBLISHED
IN THE KARNATAKA GAZETTE DATED 6.7.13 IN PART NO.1 AND IN
SL NO.887 VIDE ANNX-F AS ULTRA VIRES AND
UNCONSTITUTIONAL SO FAR AS THE PETITIONERS IS
CONCERNED; RESTRAIN THE RESPONDENT POLICE AUTHORITIES
NO.3 TO 10 FROM INTERFERING WITH CONDUCTING OF BUSINESS
CARRIES ON BY PETITIONERS.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.03.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners call in question guidelines issued by the Government notified on 06-07-2013, contending that it ultra vires the Constitution and have further sought a direction by issuance of a writ in the nature of mandamus restraining respondent Nos.3 to 9 10 / police from interfering with the conduct of business of the petitioners and other slew of prayers.
2. Heard Sri R. Hemanth Raj, learned counsel appearing for the petitioners, Sri K.S. Harish, learned Government Advocate appearing for respondent Nos.1 to 10 and Sri N.P. Amruthesh, respondent No.11 - party-in-person.
3. The facts, in brief, germane are as follows:-
The petitioners claim to be the owners of certain Bars and Restaurants in the city of Bengaluru. Petitioner Nos.1 to 13, in particular, are owners of several Discotheques and petitioner Nos.14 to 20 are the owners of Bar and Restaurants. It is the case of the petitioners that they have employed women in all their establishments and are carrying on business activities in the city by obtaining valid licenses from the competent authorities under the respective enactments. When things stood thus, petitioner Nos.1 to 13 approach the Commissioner of Police, Bengaluru city seeking licenses under the provisions of the Licensing and Controlling of Places of Public Entertainment (Bangalore City) Order, 2005 ('the 10 Order, 2005' for short). The Commissioner is said to have issued licenses in terms of the said order to all these petitioners and the petitioners claim to be running business activities under the trade licenses issued by the Municipal authorities.
4. The Commissioner of Excise in the year 2008 and the Police Commissioner appear to have generated certain objections for appointment of women in the Bars and Restaurants on the score that Sub-section (2) of Section 20 of the Karnataka Excise Act prohibits women to be employed without permission from the Deputy Commissioner of Excise in any Bar or Restaurant. The validity of the said objections was called in question before this Court in Writ Petition No.3743 of 2008 and connected case. This Court disposed of the petition directing that the said direction of non-employment of women cannot be enforced. The Government then through the Home Department publishes a draft order in the form of guidelines called the Licensing and Controlling of Liquor Houses (Bangalore City) Order 2010 ('the Order, 2010' for short).
The draft was published on 24.07.2010 and all the stake holders are said to have filed their objections on 09.08.2010, but approach 11 this Court in Writ Petition Nos.28715-28719 of 2010, which comes to be disposed of with a direction to the Police not to interfere with the business of the petitioners. On 06-07-2013, comes the impugned notification called the Licensing and Controlling of Places of Public Entertainment Guidelines ('hereinafter referred to as 'the Guidelines' for short). It is these guidelines that are called in question in the subject petition.
5. The learned counsel appearing for the petitioners submits that the Guidelines without amending the afore-quoted Orders, 2005 and 2010, could not have been notified by the State. The Guidelines run completely counter to the judgments rendered by the Apex Court and this Court. It is his submission that in 2005, the Commissioner of Police had published an amendment to the Order, 2005 for banning live music and bands and this Court had quashed the amendment in Writ Petition No.16318 of 2005 connect with W.P.Nos.16193/2005 and 16293/2005, in terms of the order dated 27.09.2005. The impugned guidelines have come about in a different avatar. These guidelines strictly restrict women from being employed and, therefore, it is violative of Articles 14, 15 and 12 19 of the Constitution of India. It is his further contention that these guidelines impose compulsory uniform for women employees, which is violative of Articles 14 and 15 of the Constitution of India and several other provisions of the Excise Act are said to have been violated.
6. Per contra, the learned Government Advocate would vehemently refute the submissions to contend that nearly 300 women have been employed in various Bars owned by the petitioners and they indulge in illegal activities and several crimes have been registered against those Bar and Restaurant owners. It is his submission that it is the duty of the Police to observe whether the petitioners are following the Rules and Regulations or not.
Subsequent to the directions of this Court as also the judgment of the Apex Court, the Bar and Restaurants employing women are not troubled.
7. The learned counsel for the petitioners, in reply to the submission of the State, would restrict his claim only to the dress code prescribed by the State to the women employees as all other 13 reliefs that are sought are now covered by the judgment of the Apex Court and, therefore, it is necessary to be considered.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the only issue that falls for consideration is, whether imposition of dress code for women employees on the ground of protection of women in the garb of preventing their trafficking in Bar and Restaurants, is tenable in the eye of law?
9. The issue now projected by the State Government is in the nature of protective discrimination as women are directed to have a dress code for the purpose of their protection. Whether such protective discrimination would be violative of Article 14 of the Constitution of India, need not detain this Court for long or delve deep into the matter. The Apex Court in the case of ANUJ GARG v. HOTEL ASSOCIATION OF INDIA1 holds that legislation that causes protective discrimination should go through judicial scrutiny where it should not only be assessed on its proposed aims but 1 (2008) 3 SCC 1 14 rather on the implications and its effect. The Apex Court holds as follows:
".... ..... .....
22. In Bhe v. Magistrate, Khayelitsha [(2004) 18 BHRC 52: (2005) 1 BCLR 1 (CC)] 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 purported 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 extramarital 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 over time 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 succession were no longer universally observed. The exclusion of women from inheritance on the ground 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 15
23. 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.
24. 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.
25. Hotel management has opened up a vista for 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 recognised 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.
26. 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 16 India have gained entry in all spheres of public life. They have also been representing people at grassroot democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, 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
27. Occupation/service in the management of hotel industry is a specialised job. It requires specialised 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.
28. In Kerala Samsthana Chethu Thozhilali Union v. State of Kerala [(2006) 4 SCC 327 : 2006 SCC (L&S) 796] this Court held : (SCC p. 345, para 53) "53. 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 opposed to public policy, cannot be restricted. Such a power to enter into a contract is within the realm of the 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 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 17 are also contrary to the provisions of the Contract Act as also the Specific Relief Act, 1963."
It was further observed : (SCC p. 345, para 55) "55. 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
29. 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.
30. 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. 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 trade-off or adverse impact, if any.
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 US 432, 439-41: 105 S Ct 3249: 87 L Ed 2d 313 (1985)].)
31. 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--a citizen of India should be allowed to live her life on her own terms.
32. 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 18 have evolved amongst which right to self-determination holds an important place.
Right to employment vis-à-vis security : competing values
33. The instant matter involves a fundamental tension between right to employment and security.
34. 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.
35. 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.
36. 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 victimising 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.
37. 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 19 enforcement strategies of the State as well as law modelling done in this behalf.
38. 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.
39. Gender equality today is recognised 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.
40. In Abdulaziz, Cabales and Balkandali v. United Kingdom [1985 ECHR 7 : 7 EHRR 471] 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 [1985 ECHR 7 : 7 EHRR 471] the European Court of Human Rights once again observed in Van Raalte v. Netherlands [(1997) ECHR 6 : 24 EHRR 503] :
"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 (Article 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. United Kingdom [1985 ECHR 7 : 7 EHRR 471] judgment of 28-5-1985 (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 20 could be regarded as compatible with the Convention' (loc. cit., p. 38, para 78)."
(emphasis supplied) (See also Schuler-Zgraggen v. Switzerland [(1993) ECHR 29: 16 EHRR 405] and Petrovic v. Austria [(1998) ECHR 21: (2001) 33 EHRR 14 : (2001) 33 EHRR 307 : (1998) 33 EHHR 307].) Stereotype roles and right to options
41. Professor Williams in The Equality Crisis : Some Reflections on Culture, Courts and Feminism published in 7 WOMEN'SRTS. L. REP., 175 (1982) notes issues arising where biological distinction between sexes is assessed in the backdrop of cultural norms and stereotypes. She characterises 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.
42. 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 the State.
43. 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 the 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 21 under Section 30) from societal conditions would be oppressive on the women and against the privacy rights.
44. The description of the notion of "romantic paternalism" by the US Supreme Court in Sharron A. Frontiero v. Elliot L. Richardson [411 US 677 : 36 L Ed 2d 583 : 93 S Ct 1764 (1973)] 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 : (US pp. 684-85) "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. ...
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes...."
The Court also maintained the strict scrutiny standard for review and repelled the administrative convenience argument in the following terms : (Frontiero case [411 US 677: 36 L Ed 2d 583 : 93 S Ct 1764 (1973)] , US pp. 690-91) "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 22 [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 challenged statutes violate the Due Process Clause of the Fifth Amendment...."
45. In another similar case wherein there was an effective bar on females for the position of guards or correctional counselors in the Alabama State penitentiary system. The prison facility housed sexual offenders and the majority opinion on this basis inter alia upheld the bar. Marshall, J.'s dissent captures the ranges of issues within a progressive paradigm. Dissent in Dothard v. Rawlinson [433 US 321: 53 L Ed 2d 786: 97 S Ct 2720 (1977)] 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 23 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 law-abiding 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 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
46. 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.
47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases.
2448. 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."
49. 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 the 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.
50. 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.
51. The court's task is to determine whether the measures furthered by the State in the 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 be 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 25 be a reasonable relationship of proportionality between the means used and the aim pursued.
52. In United States v. Virginia [518 US 515, 532-33 (1996)] Ginsburg, J. 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 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)"
(Emphasis supplied) The Apex Court holds that it amounts to protective discrimination and would not stand the test of law. The Apex Court yet again in the case of INDIAN HOTEL AND RESTAURANT ASSOCIATION v. STATE OF MAHARASHTRA2 was called to answer the constitutional validity of certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms 2 (2019) 3 SCC 429 26 and Protection of Dignity of Women (Working therein) Act, 2016 known as Dance Act. The Apex Court struck down certain provisions and conditions as it would infringe the right to privacy. The Apex Court holds as follows:
".... .... ....
79. It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se.
It may include gambling (though that is also becoming a debatable issue now), prostitution, etc. It is also to be noted that standards of morality in a society change with the passage of time. A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. Social change is of two types:
continuous or evolutionary and discontinuous or revolutionary [ See A. Etzioni and E. Etzioni (Eds.), Social Change (1964); W. Moore, Social Change (1963), W. Moore and R. Cook (Eds.), Readings on Social Change (1967).] . The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral.
Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances. However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise "social control". Furthermore, and in any case, any legislation of this nature has to pass the muster of constitutional provisions as well. We have examined the issues raised in the aforesaid context.
... ... ...
101. Insofar as Condition 2 of Part B is concerned, it imposes an obligation on the employers to the effect that 27 working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary. Further, this monthly salary is to be deposited in their bank accounts with all the benefits required under the law. Copy of such contracts is to be deposited with the licensing authority as well. Insofar as provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts is concerned, it appears to be justified as it would make the conditions on which such working women, dancers and waiters/waitresses are employed, transparent thereby eliminating or minimising any chances of exploitation or other disputes. However, the condition of employing such persons on monthly salary does not stand the judicial scrutiny. This shows that such persons are to be employed in a particular manner i.e. on monthly basis. There can be other modes of employment permissible in law and the employers have legal right to adopt such modes. For example, it could be employment on contract basis i.e. where the remuneration can be fixed for each performance. Moreover, it impinges upon the rights of such workers as well who may, otherwise, be free to give their performances at more than one place. Therefore, it imposes restriction even upon such employees and infringes their right under Article 19(1)(g). This is the grievance raised on behalf of such women in the petition argued by Mr Nayyar who submitted that the provisions adversely affect women dancers by (i) restricting their freedom to move from one bar to another at their will, if the work conditions or the returns are not suitable; (ii) prohibit them from monetising dances other than by way of receiving salary or shared tips. More importantly, the State Government has failed to show any compelling public interest to curtail the choices of women performers. We find substance in the aforesaid submission and, therefore, set aside this part of Condition 2. We make it clear that the provisions for written contract, deposit of the remuneration in the bank accounts of the employee as well as submission of these written contracts with the licensing authority are appropriate. Rest of the provision is struck down.
... ... ...
28103. Condition 12 of Part B prescribes (sic prohibits) serving of alcohol in the bar room where dances are staged. This is totally disproportionate, unreasonable and arbitrary. We see no reason as to why the liquor cannot be served at such places. It seems that the State is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses. However, such conditions have been held to be unreasonable by the courts. There may be aberrations or sporadic incidents of this nature which can happen not only at the places where dance performances are staged but at other places including bar rooms and even main restaurants. Other measures have to be adopted to check such a nuisance. There cannot be a complete prohibition from serving alcoholic beverages. We, therefore, quash Condition 12.
... ... ...
106. The present legislation is given a cloak of bringing regulatory regime to regulate the places where there are dance performances. For this purpose, the impugned Act does not permit dance performances without obtaining licence under Section 3 of the Act. Further, it makes obscene dances as penal offence. No quarrel on this. However, at the same time, many conditions are stipulated for obtaining the licence, which are virtually impossible to perform. It is this reason that not a single establishment has been issued licence under the impugned Act even when it was passed in the year 2014. In fact, after the amendment in the Maharashtra Police Act in 2005, no licences have been granted for dance bars. Thus, even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars. The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced. We have quashed those provisions of the Act and the Rules which we have found as unreasonable and unconstitutional. We hope that applications for grant of licence shall now be considered 29 more objectively and with open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act."
(Emphasis supplied) The Apex Court again in the case of HOTEL PRIYA v. STATE OF MAHARASHTRA3 has held as follows:
".... .... ....
16. Next, the respondent submits that the impugned conditions do not violate Article 14. Article 14 permits reasonable classification as long it is based upon intelligible differentia and such differentia has reasonable nexus to the object sought to be achieved by the law, or the executive measure. Article 15(3) allows the state to make special provisions for women. To violate Article 14, two conditions have to satisfied. Firstly, that the person aggrieved has been treated differently from others and also from the similarly situated persons; and secondly, such treatment has to be meted out without any rational basis and without justification. In the present case, the conditions apply to all 254 establishments. It is not the case that fewer number of women have been permitted or vice versa; all establishments have been permitted to engage the same number of women, in each performance. The restrictions have only been applied to protect the interests of women and prevent their exploitation. It is submitted that instrumentalists are besides the artistes.
... ... ...
19. The respondents submit that the said conditions are not in violation of Article 19(1)(g) as reasonable restrictions can be imposed under Article 19(6) in the interests of the general public. Such restrictions are also essential to protect the dignity of women and prevent their exploitation; they are reasonable and saved, in addition, by Article 15(3) of the Constitution of India.
... ... ... 3 2022 SCC OnLine SC 204 30
25. The power to make, alter or rescind rules (under Section 33(2)) is circumscribed by the condition in Section 33(6) of previous publication in the concerned locality. Section 162(1) enacts those licenses and written permissions have to specify conditions, etc; Section 162(2) enables revocation of licenses or written permissions.
... ... ...
34. It is apparent from the above discussion that the power of the state to regulate has not been disputed. However, what is in issue, is whether the restriction imposed through conditions of license, are impermissible because they are not part of the rules or have not been enacted in any provision of law, and whether the conditions are violative of Articles 14 and 19(1)(g) of the Constitution of India.
... ... ...
43. It is thus clear that each of the arguments which the state is relying on, were considered in the context of challenge to statutory prohibitions, as well as license conditions. The arguments advanced in the present case, that the restrictions are necessary in the public interest, to promote the welfare of women, prevent human trafficking in women, and their exploitation, and that the restrictions are necessary in the interest of public morals, are well worn, and have been decisively rejected. Apart from regurgitating the same rejected submissions, the state has not justified, independently, how the gender-cap, as for an individual orchestra or band, is regulatory.
... ... ...
47. In Anuj Garg v. Hotel Association of India this court examined restrictions on women's employment in the context of the state's arguments that such measures were necessary, to protect them from injury and observed as follows:
"36. 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 victimising 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 31 capable of being called reasonable in a modern democratic society.
37. 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 modelling done in this behalf."
... ... ...
54. For the foregoing reasons, the impugned judgment is hereby set aside. It is hereby declared that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in bars licensed under the Rules, 1960 and other allied provisions, is void. While the overall limit of performers in any given performance cannot exceed eight, the composition (i.e., all female, majority female or male, or vice versa) can be of any combination. The appeals are allowed, but with no order on costs."
(Emphasis supplied) The Apex Court set aside the judgment of the High Court of Bombay and declared that the conditions imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in bars licensed under the Rules is void as it is discriminatory. Those were the judgments rendered by the Apex Court on discrimination on employment of women and protective discrimination as the case would be that was brought before the Apex Court.
3210. In the case at hand, what is now restricted as a challenge is to the impugned guidelines. The impugned guidelines also would fall foul of the judgment rendered by the co-ordinate Bench of this Court in MAHILA JAGRAN MANCH v. THE STATE OF KARNATAKA4. The coordinate Bench holds that over-sensitiveness should not be the guiding factor in determining what is obscene and imposing certain restrictions on clothing, which would be violative of the tenets of Article 14 of the Constitution of India. If regard is had to the judgments rendered by the Apex Court and that of this Court supra, the impugned guidelines which impose certain restrictions on clothing of women would undoubtedly tumble down like a pack of cards, as Clause-9 of the impugned guidelines insofar it concerns clauses (c), (e) and (n) would be rendered unsustainable. Clauses (c), (e) and (n) read as follows:
"9. PLACE OF PUBLIC ENTERTAINMENT INCLULDING THE ONE EMPLOYING WOMEN:
... ... ...
(c) A decent uniform comprising full trousers and full shirts/T
shirts with or without a blazer, or a shalwar kameez with dupatta (without vulgar display of the body) shall be worn by the women employees.
... ... ... 4 ILR 1997 KAR 2110 33 (e) The proto-type of the uniform proposed to be issued to
the women employees proposed to be employed should be submitted to the Licensing authority and approved by it and every woman employee working in the liquor house shall wear the same approved uniform invariably during the duty hours.
... ... ...
(n) No women employees, employed in one establishment
shall be allowed to work in or deputed to any another establishment."
Learned counsel for the petitioner has rightly restricted his challenge to the clauses that are seen hereinabove. As every other clause in the impugned guidelines have all been held contrary to law either by this Court on earlier occasions or by the Apex Court in the identical circumstances, what is new, in this new avatar are the afore-quoted guidelines. Therefore, there need not be an answer to the guidelines that form a part of the impugned guidelines, which are all held to be illegal and unenforceable. Coming to the aforesaid clauses, Clause (c) indicates uniform; clause (e) indicates proto-type uniform to be a part of the license and clause (n) indicates that no women employee employed in one establishment should be allowed to work in or deputed to any other establishment. This in the considered view of the Court runs completely foul of what the Apex Court or the constitutional Courts 34 have throughout been directing. Undoubtedly, it is over sensitiveness of the Sate that has become a guiding factor in what is seen to be obscene qua the clothing for it to impose restrictions upon the kind of clothes a woman should wear in the place of public entertainment. The aforesaid clauses on the face of them, are arbitrary, illegal and regressive.
11. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The guidelines issued by respondents / State at sub-
clauses (c), (e) and (n) of Clause 9 of its order dated 6th July, 2013, stand quashed.
Sd/-
JUDGE nvj/CT:MJ