Rule prohibiting women to serve liquor in licensed hotels declared unconstitutional

Kerala High Court: While deciding
the constitutionality of the new Rule 27A and condition 9A under the head
Conditions in Forms FL 3 introduced via amendment
of the Kerala Foreign Liquor Rules dated 9-12-2013 which prohibits women from
being employed “in any capacity for serving liquor on the licensed premises’, a
bench of D.S. Naidu J held 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,
15 (1) & (2) and 16 (1) & (2) of the Constitution of India, and hence
is unconstitutional.

In the instant
case, the petitioners (working as waitresses/ bartenders) in a bar attached to
FL-3 licensed hotel challenged the new Rule and condition as being ultravires of the Executive on the
ground that if the newly incorporated Rule is allowed to hold its field, they
will be bound to lose their jobs and thus their livelihood. Thomas Abraham, the
learned Counsel for the petitioner contended that by introducing a new Rule 27A
as well as condition 9A, the government is taking away the equality of status
and opportunity that is guaranteed to women in the Constitution. The Government
Pleader submitted that the government has brought about the statutory changes
to protect the women from being exposed to dangers in work places.

The Court noted
that firstly the government
presupposed without any statutory base that employing women to serve liquor in
the licensed premises is illegal, and subsequently
to justify it with a statutory support, the government amended the Rule and
brought the impugned Government Order. The Court stated that “the approach of the government is a classic
case of begging the question”. The Court relied on Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, where Supreme
Court declared Section 30 of the Punjab Excise Act, 1914 which prohibited
employment of women in any premises in which public consume liquor or
intoxicating drug as unconstitutional. The Court also relied on Gita Hariharan v. Reserve Bank of India,
(1999) 2 SCC 228, where Supreme Court observed that India is a signatory to the
Convention on the Elimination of All Forms of Discrimination against Women,
1979 (“CEDAW”) and the Beijing Declaration, which direct all State parties to
take appropriate measures to prevent discrimination of all forms against women
and 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. Accordingly, the Court declared the Rule and
condition prohibiting women from working as Bartenders as unconstitutional. [In the matter of constitutionality of the
new Rule introduced via amendment of the Kerala Foreign Liquor Rules dated 9-12-2013, decided on 17.08.2015]

Source: Legal news India