Monday, March 12, 2007

Feminine touch lends grace and elegance to hospitality industry

"NO PERSON who is licensed to sell any liquor or intoxicating drug for consumption on his premises shall during the hours in which such premises are kept open for business, employ or permit to be employed either with our without remuneration, any man under the age of 25 years or any women in any part of such premises in which such liquor or intoxicating drug is consumed by the public."

Thus reads Section 30 of the Punjab Excise Act, 1914. What's suddenly of interest in this nine-decade-old restriction law? Just that the bar on women got struck down as being unconstitutional when the Delhi High Court decided the case Hotel Association of India and others vs Union of India on January 12.

Two of the petitioners were graduates of hotel management, looking for a career in the hospitality industry. They had challenged that Section 30 imposed unconstitutional restrictions upon the rights of women to pursue their profession in hotel management and other facets of the hospitality industry. Articles 19(1)(g), 14 and 15 of the Constitution of India were violated, they averred. Article 19(1)(g) states that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. Article 14 is about `equality before law', and Article 15 prohibits `discrimination on grounds of religion, race, caste, sex or place of birth,' as you can check on

Arun Jaitley's arguments

Arguing for the Hotel Association, Arun Jaitely highlighted that on the one side the government was encouraging liquor trade by permitting longer working hours for liquor shops, and facilitating ready availability of beer and wine in various general stores of Delhi. On the other, there were restrictions such as in Section 30, discriminating on the basis of sex. Jaitely cited many cases to support his contention: For instance, in Air India vs Nargesh Mirza, the apex court had held that fixing of a lower retirement age for the air hostess than for the men was violative of the Constitution. In Randhir Singh vs Union of India, the court had observed that `Equal Pay for Equal Work' is not a mere demagogic slogan but a constitutional goal capable of attainment through constitutional remedies by the enforcement of constitutional rights.

In Makinnon Machenzie and Co Ltd vs Audrey D'Costa, the Supreme Court adopted the principles of Equal Remuneration Convention, 1951, to say that paying lower emoluments to the lady stenographers than what was paid to their male counterparts was violative of the Equal Remuneration Act, 1976.

"Not long ago, the place of a woman in rural areas has been traditionally her home, but the poor illiterate women forced by sheer poverty now come out to seek various jobs so as to overcome the economic hardship. They also take up jobs which involve hard physical labour," the court had said in Municipal Corporation of Delhi vs Female Workers (Muster Roll). All these came in support of the Association's stand in the current case.

Jaitely pointed out that the relevance of the principle of `desuetude', since the legislation in question was `rusted/obsolete', and unsuitable to the present socio-economic context. "The past Century has seen several social and economic reforms relating to emancipation of women. Section 30 is an archaic piece of legislation reflecting the structural and social norms of the past century," he said.

For starters, `desuetude' is "a legal process by which through disobedience and lack of enforcement over a long period of time, a statute may lose its force without express or implied repeal by the Government," as the text of the judgment informs. By relying upon the judgment of the Constitution Bench in Sunil Batra vs Delhi Administration, "courts may read down pre-constitutional laws to make them more suited to the prevailing socio-economic context to save them from unconstitutionality," said Jaitely.

Mischief and even evil

Avnish Ahlawat argued for the Government. "Trade in liquor is not an ordinary trade and by its very nature has the potential to cause mischief and even evil, and is a common denominator in various crimes and social problems such as alcoholism, domestic violence and various sexual offences," she said. "This trade has been considered inherently noxious and pernicious," Ahlawat added. How frightening!

There is no fundamental right to trade in liquor, she said. Therefore, regulations can be imposed in the interest of public health, public order and morality, argued Ahlawat, thus justifying the restriction that barred women from employment in bars and so on.

She said that one had to see the reasonableness of the restrictions with reference to the purpose; which is "to promote public interest and to protect public health, safety and morals within the territory of Delhi." Restriction is imposed on the engagement of women in places where liquor is served keeping in mind the morality, protection of women and as an act to realise the goals fixed in Article 47 of the Constitution of India, reasoned Ahlawat.

It is useful to know that Article 47 is about `duty of the state to raise the level of nutrition and the standard of living and to improve public health'. It reads: "The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."

The bar on employment of women in bars is "for safety, self respect and well being of women," said the state's counsel. "Experience has shown that the society needs to be mature enough to accept the service of liquor by women in bars. Issues of molestation and sexual offences occur while under the influence of liquor," highlighted Ahlawat.

Outdated law

Justices Mukul Mudgal and H. R. Malhotra heard the arguments and said, "A provision such as Section 30, which in the year 1914 was perhaps a measure to protect the working women from exposure to the travails of alcoholic consumption, in our view is today outdated and far from serving the cause of protecting women, has in fact the effect of inhibiting and curbing the employment opportunities of modern Indian women."

Indian women today are marching step by step with men in all spheres of life, said the judges. "The modern Indian woman is intelligent, informed, educated, confident and fully aware of her rights. The seemingly protectionist measure which might have had the effect suggested in 1914 can no longer stand the test of constitutional validity in 2005," they added. Issues raised in the case affect all women working in the hospitality industry, noted the court. Therefore, a protectionist measure that affects severely the career prospects of women in any industry cannot be held to be valid unless it is constitutionally justified, opined the court.

The judgment cites John Stuart Mill's 1869 essay, On Liberty, to say that human beings owe to each other help to distinguish the better from worse, and encouragement to choose the former and avoid the latter. The court drew insight from Articles 5(a) and 11 of the Convention on the Elimination of All Forms of Discrimination Against Women to which India is a party.

Article 5 of the Convention is about modifying "the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women". And Article 11 speaks not only about the right to work as an inalienable right of all human beings, but also "the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment."

Pertinent to the verdict were the principles laid down in the National Policy for Empowerment of Women, 2001. For instance, the Policy aims at creating "an environment through positive economic and social policies for full development of women to enable them to realise their full potential," and "strengthening of legal systems aimed at elimination of all forms of discrimination against women." Interestingly, the Policy also provides for "re-interpretation and redefinition of conventional concepts of work wherever necessary, e.g., in the Census records, to reflect women's contribution as procedures and workers."

The court said that Section 30, far from protecting women from the travails of liquor trade, has in fact become a severe impediment in the way of women's careers and advancement thereof in the hospitality industry.

Section 30 speaks of `any part' of premises, putting a blanket ban on employment of women in most sectors of the hotel industry, said the judges. "If a restaurant offers alcoholic drinks in a part of the larger premises such as banquets, restaurants and room service where the culinary delicacies and other beverages are being offered to the customers, then if the Section 30 is given full effect to, in the above manner, the result would be that women will not be eligible for employment in a large segment of the hotel business so covered by room service, restaurants, bars and banquets," they reasoned. "A woman's right to advance her career in the hospitality industry would be severely jeopardised due to the aforesaid restrictions emanating from the provisions of Section 30."

The court cited Article 39(a) of the Constitution: that the state shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. It referred to the three objectives specified by the First World Conference on Women, held in 1975; these were, "Full gender equality and elimination of gender discrimination; integration and full participation of women in development; and an increased contribution by women in the strengthening of the world peace."

For grace and elegance

Section 30 is an antithesis to the contemporary era where an increasing number of female candidates appear and pass in the entrance examinations conducted for admissions to various hotel management courses, observed the court. "Equal numbers of female and male candidates can be found in classrooms of a reputed institution offering the course of hotel management. This shows the enthusiasm of women to take on any challenge shown up by the hotel industry."

An interesting snatch from the verdict that women would like to hold against men is this: "It is undeniable that women have excelled in the hospitality industry not only in this country but worldwide, and the feminine touch indeed lends grace and elegance to the hospitality industry which grace and elegance is not inherently suited to the male disposition."

Before declaring Section 30 to be "violative of Article 19(1)(g), Article 14 and Article 15, and unconstitutional and inoperative to the extent that it imposes restrictions upon the employment of women in any part of the licensed premises in which liquor or intoxicating drugs are consumed by the public," the court directed Jaitely to give an undertaking on behalf of the Association "that notwithstanding the challenge raised in the writ petition, no woman employee would be compelled to serve in a bar in case she has any objection to doing so."

Any objections?