Holding

Section 30 of the Punjab Excise Act, 1914 is unconstitutional as it infringes Articles 14, 15 and 19(1)(g) of the Constitution.

Summary

The Supreme Court examined the constitutional validity of Section 30 of the Punjab Excise Act, 1914, which barred men under 25 and all women from employment in premises serving liquor. The Court held that the provision violates Articles 14, 15 and 19(1)(g) of the Constitution because it is an unreasonable classification lacking a rational basis and fails the proportionality test. The State's reliance on the doctrine of res extra commercium and its parens patriae power was rejected as insufficient justification. The Court affirmed the Delhi High Court’s decision, finding no infirmity in its judgment. Consequently, the appeal challenging the High Court’s order was dismissed while the cross‑appeal supporting the High Court’s ruling was allowed. The judgment emphasized gender equality, the right to livelihood, and the need for strict scrutiny of protective discrimination statutes.

Issues considered

Whether Section 30 of the Punjab Excise Act, 1914, prohibiting employment of men under 25 and women in liquor‑serving premises violates Articles 14, 15 and 19(1)(g) of the Constitution.
Whether the doctrine of res extra commercium can justify the employment restriction.
Whether the State’s parens patriae power can sustain the classification.
Whether the restriction satisfies the test of rational classification and proportionality/strict scrutiny.
Whether the High Court’s decision can be upheld on these grounds.

Legislation cited

Punjab Excise Act, 1914s. 30

Subjects

gender discriminationequality clauseright to employmentprotective discriminationproportionality testparens patriaeres extra commerciumhospitality industryliquor lawconstitutional validity

Judgment

ANUJ GARG & ORS. A
v.
HOTEL ASSOCIATION OF INDIA & ORS.

DECEMBER 6, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]
'J.,'

Constitution ofIndia, 1950; Articles 14, 15, 16, 19(1)(g) and 3721
Punjab Excise Act, 1914; S.30:

Right to employment-Prohibition in employment--S.30 of the
c
Act prohibiting employment ofmen under 25 years ofage and women
in any premises where liquor/intoxicating drug is being served-
Constitutionality of-Held: High Court rightly held s.30 of the Act
ultra viresArticles 14, 15and19(1)(g) ofthe Constitution-1914 Act
is a pre-constitutional legislation-Changed social psyche and .D
expectations with time are important factors to be considered in the
upkeep of law-When the Act was enacted, concept of equality
between two sexes was unknown-However, with the framing of
articles 14 and 15, the constitution makers intended to apply equality
amongst two sexes in all spheres oflife-Impugned provisions provide E
for wide restriction by prohibiting employment of men and women
below 25 years ofage in any premises where liquor is served-Thereby
young graduates ofHotel management Course would be deprived of
their right to employment without any rational criteria to justifo such
prohibition-Instead of putting restrictions on women's freedom, F
empowerment in the law enforcement strategies would be more tenable
and socially wise approach~It is for the Court to review that the
majoritarian impulse rooted in moralistic tradition do not impinge
upon individual autonomy-Impugned legislation with pronounced
protective legislation suffers from incurable fixation of stereotyped G
morality and conception of sexual role-Thus, outmoded in content
and stiffing in means-Personal freedom is a fundamental tenet which
could not be compromised in the name ofexpediency until and unless
there is compelling State purpose-Only on a pre-supposition of
991 H
)-.
\
'
992 SUPREME COURT REPORTS [2007] 12 S.C.R.

A happening ofsome incident, a law cannot be declared intra vires which
is ex facie ultra vires-Thus, no injirmityfound in the decision ofthe
High Court holding the impugned Section 30 of the Act ultra vires
Articles 14, 15 & 19(1)(g)-Right to equality--Right to employment-
Judicial review.
B Doctrines:
,. )

Doctrines of "Res Extra Commercium Issue" and "Parens
Patriae Power ofState "-Applicability of
Judicial deprecation-Held: Practice of raising a contention
c before Supreme Court which not only had not been raised before the
High Court but in an appeal filed by others maintainability whereofis
in question is deprecated
Words and Phrases:
D 'Justice discourse 'and 'Privacy rights '-Meaning of
}
The first respondent with four others filed a writ petition before
the Delhi High Court questioning the validity of the provision under
Section 30 of the Punjab Excise Act, 1914. The High Court declared
E Section 30 of the Act ultra vires Articles 19(1)(g), 14 and 15 of the
Constitution oflndia to the extent it prohibits employment of any
men/woman in any part of such premises, in which liquor or
intoxicating drugs are consumed by the public. Hence, the present

F
appeals.

Appellants contended 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.

G Dismissing C.A.No.5657 of2007 and allowing C.A.No.5658 of
2007, the Court
'-,
HELD: 1.1. Punjab Excise Act, 1914 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
H
ANUJGARG v. HOTEL ASSOCIATION OF INDIA 993

-<} 14, 15 and 19 of the Constitution oflndia, is permissible in law. A
[Para 7) [1001-B]

1.2. A statute although could have been held to be a valid piece
oflegislation 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. B
[Para 7) (1001-B]

John Vallamattom & Anr. v. Union ofIndia, (2003) 6 SCC 611,
relied on.

United Nations Covenant on Civil and Political Rights, (1966), C
referred to.

1.3. Changed social psyche and expectations are important
·ractors to be considered in the upkeep oflaw. Decision on relevance
J. •
will be more often a function of time which is operating in. Primacy D
1 to such transformation in constitutional rights analysis would not be
out of place. [Para 8] [1001-G-H]
Githa Hariharan v. Reserve Bank of India, [1999) 2 SCC 228;
Air India v. Nergesh Meerza, [1981] 4 SCC 335; Municipal Corporation
ofDelhiv. Female Workers (Muster Ro!V & Anr.,.(2000] 3 SCC 224; E
Madhu Kishwar & Ors. v. State of Bihar & Ors.,.{1996] 5 SCC 125;
Vishaka & Ors. v. State of Rajasthan & Ors., (1997] 6 SCC 241;
Randhir Singh v. Union of India & Ors., (1982] 1 SCC 618 and
Liverpool & London S.P. & I Association Ltd. v. M V Sea Success I
& Anr., [2004] 9 SCC 512, referred to. F

"Habits of the Heart: Individualism and Commitment in
American Life" by R. Bellah, R. Madsen, W Sullivan, A. Swidler and
S. Tipton, (1985), referred to.
2.1. The important jurisprudential tenet involved in the matter G
is not the prioritization of rights inter se but practical implementation
issues competing with a right. [Para 18] [1004-H; 1005-A]
2.2. When the original Act was enacted, the concept of equality
between two sexes was unknown. the makers of the Constitution H
994 SUPREME COURT REPORTS [2007] 12 S.C.R.

A intended to apply equality amongst men and women in all spheres ~

of life. In framing Articles.14 and 15 of the Constitution, the
constitutional goal in that behalf was sought to be achieved. Although
the s&me would not mean that under no circumstance, classification,
inter alia, on the ground of sex would be wholly impermissible but it
B is trite that when the validity of a legislation is tested on the anvil of
equality clauses contained in Articles 14and15, the burden thereof
,>-
would be on the State. While considering validity of a legislation of
this nature, the court has to take notice of the other provisions of
the Constitution including those contained in Part IV A of the
c Constitution. [Para 20] (1005-E-F]
Bhe & Ors. v. The Magistrate, Khayelisha & Ors., (2004) 18
BHRC 52, referred to.
3.1. In India, hospitality industry has grown by leaps and bounds.
D Liquor, in the hospitality industry, is being served not only in the bar
but also in the restaurant. Service ofliquor is permissible also in the >
rooms of a hotel. [Para 22] (1006-E]
3.2. The impugned provision provides for wide restrictions. It
prohibits employment of any woman in any part of the premises
E where liquor is being served. It would prohibit employment ofwomen
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
F 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. [Para 23] (1006-F-G]
3.3. Hotel Management has opened up a viesta of young men
and women for employment. A large number of them are taking hotel
G
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
H
ANUJGARG v. HOTELASSOCIATIONOFINDIA 995

be deprived of their right of employment. Occupation/service in the A
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. The State cannot invoke the doctrine
of 'res extra commercium' in the matter of appointment of eligible
B
t. persons. 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.
[Paras 24, 25 and 54] [1006-H; 1007-A, B; F, G; 1017-D]
c
Kera/a Samsthana Chethu Thozhilali Union v. State of Kera/a
and Ors., [2006] 4 SCC 327, relied on.
3.4. Right to be considered for employment subject to just
... exceptions is recognized by Article 16 of the Constitution. Right of
.( employment itself may not be a fundamental right but in terms of D
both Articles 14 and 16 of the Constitution oflndia, each person
similarly situated has a fundamental right to be considered therefor.
When a discrimination is sought to be made on the purported ground
of classification, such classification must be founded on a rational
criteria. [Para 24] [1007-B-C] E

4.1. 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.
Parens Patriae power has only been able to gain definitive legalist
F
orientation as it shifted its underpinning from being merely moralist
to a more objective grounding i.e. utility.
[Paras 27 and 28] [1008-G)
4.2. The subject matter of the Parens Patriae power can be
adjudged on two counts: (i) in terms of its necessity and (ii) G
.l assessment of any tradeoff or adverse impact, ifany. Parens Patriae
po~er 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 H
f

996 SUPREME COURT REPORTS [2007] 12 S.C.R.

A constitutional, statutory and social interdicts - a citizen of India
should be allowed to live her life on her own terms.
[Paras 29 and 30) (1008-H; 1009-A-C]

City ofCleburne v. Cleburne Living Center, 473 U.S. 432, 439-
41 (1985), referred to.
B
5.1. 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 ofviolence-
free being generally is another tenet of the same movement. In fact,
c the latter is apparently a more basic value in comparison to right to
options in the feminist matrix. [Para 33) (1009-F)

5.2. 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
D 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. [Para 34) (1009-G-H)

5.3. Women would be as vulnerable without State protection as
E by the loss of freedom because of impugned Act. The present law
ends up victimizing its subject in the name of protection. In that
regard the interference prescribed by 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
F of being called reasonable in a modem democratic society. >--
[Para 35) (1010-A-B]

5.4. 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
G of the state as well as law modeling done in this behalf.
[Para 36) (1010-C] l
Abdulaziz, Caba/es And Balkandali v. United Kingdom, (1985_
ECHR 7; Van Raalte v. The Netherlands, (1997) ECHR 6; Schuler-
H
Zgraggen v. Swizerland, (1993) ECHR 29 and Petrovic v. Austria,
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 997

(1998) ECHR 21 ), referred to. A
"The Equality Crisis: Some Reflections on Culture, Courts, and
Feminism" by Professor Williams, referred to.
6. i. The combination of biological and social determinants may
find expression in popular legislative mandate. Such legislations B
' ·~ 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.Therefore, one issue
of immediate relevance in such cases is the effect of the traditional c
cultural norms as also the state of general ambience in the society
which women have to face while opting for an employmentwhich is
otherwise completely innocuous for the male counterpart.
(Paras 39 and 40) (1011-F-G]
. ' 6.2. Instead of prohibiting women employment in the bars D
altogether the State should focus on factoring in ways through which
unequal consequences of sex differences can be eliminated. It is
State's duty to ensure circumstances of safety which inspire
confidence in women to discharge the duty freely in accordance with
the requirements of the profession they choose to follow. Any other E
• policy inference (such as the one embodied under section 30) from
societal conditions would be oppressive on the women and against
the privacy rights. (Para 41) [1012-A, BJ

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct.1764 and Dothard F
v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, referred to.
7.1. 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 oflegislations. Legislation G
should not be only assessed on its proposed aims but rather on the
1' _; 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. (Para 44) (1012-A-B] H
'
;.__
I

998 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 7.2. No law in its ultimate effect should end up perpetuating the ...
'
~
'

oppression of women. Personal freedom is a fundamental tenet which
can not 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.
B (Para 45] (1014-H; 1015-A]

Reconstructing Sexual Equality, by Professor Christine A.
Littleton, referred to.
•
7.3. Having regard to the scope of Section 30 of the Act and
c the impugned legislation generally the Court has to reach to a fmding
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. The test to review such a
Protective Discrimination statute would entail a two pronged
D 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.
[Paras 47 and 48) (1015-C-F]

7.4. The Court's task is to determine whether the measures
E fmihered by the State in form oflegislative 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 behalfwould be a functioning modem democratic
F 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 be a reasonable relationship
of proportionality between the means used and the aim pursued.
[Para 49) (1015-G-H; 1016-A)
G
United States v. Virginia, 518 U.S. 515, 532-33 (1996), referred
to.
7.5. Only on a pre-supposition thatthere is a possibility ofsome
!
'-
. '

incident happening, a law cannot be declared intra vires which is ex
H
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 999
[SINHA,J.]
facie ultra vires. [Para 51) (1016-G-H) A

7.6. The Government ofNCT Delhi, although did not challenge
the impugned judgment of the Delhi High Court, seeks to enter into
the fray through a side door. It, on the one hand, challenges the focus
of the appellant which objection, if upheld, would make the appeal B
liable to be dismissed at the threshold, on the other, seeks to justify
the validity of Section 30 of the Act. Only on a pre-supposition that
there is a possibility of some incident happening, a law cannot be
declared intra vires which is exfacie ultra vires. The Court deprecated
the practice of the Government ofNCT to raise a contention of such
a nature which not only had not been raised before the High Court C
but in an appeal field by a few citizens maintainability whereof is in
question. [Para 51and52) [1017-A; F-H]
8. No infirmity is found in the impugned decision of the High
Court [Para 55) D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5657 of
2007.
From the Judgment and final Order dated 12.1.2006 of the High
Court of Delhi at New Delhi in CWP No. 4692of1999. E
WITH
C.A. No. 5658 of 2007.

Rajiv Dutta, M.P. Shorawala, Jyoti Saxena, Vipin K. Saxena and
~ Shashi K.iran for the Appellants. F
Arun Jaitley and Nagender Rai, Ravi Sikri, Saket Sikri, Madhu Sikri,
Vikas Sharma, Sweta Garg and D.S. Mahra for the Respondents.
The Judgment of the Court was delivered by
G
S.B. SINHA, J. 1. Leave granted.
I -'
Introduction
2. Constitutional validity of Section 30 of the Punjab Excise Act,
1914 (for short "the Act") prohibiting employment of"any man under the H
1000 SUPREME COURT REPORTS [2007] 12 S.C.R.

A age of25 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.
B
Background Facts
I
3. First Respondent is the Hotel Association oflndia. 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
C 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 oflndia
to the extent it prohibits employment of any woman in any part of such
D premises, in which liquor or intoxicating drugs are consumed by the public.
i .
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.
E
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 of25 years.
Submissions
F .
I-
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
G reasonable restrictions on the nature of employment therein.
6. Mr. Arnn Jaitley, learned senior counsel appearing on behalf of
the respondents, on the other hand, supported the impugned judgment.

H
ANUJGARG v. HOTEL ASSOCIATION OF INDIA 1001
[SINHA,J.]
Constitutional Backdrop A
7. The Act is a pre-constitutional legislation. Although it is saved in
teniis 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 B
'_, 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 C
611, this Court, while referring to an amendment made in UK in relation
to a provision which was in pari materia with Section 118 oflndian
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 D
' 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 E
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 F
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."
G
8. Changed social psyche and expectations are important factors
to be considered in the upkeep oflaw. Decision on relevance will be more
often a function of time we are operating in. Primacy to such
transformation in constitutional rights analysis would not be out of place.
It will be in fitness of the discussion to refer to the following text from
H
1002 SUPREME COURT REPORTS [2007] 12 S.C.R.

A "Habits of the Heart: Individualism and Commitment in American Life" 1-~
by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S. Tipton, 1985,
page 286 which suggests factoring in of such social changes.
"The transformation of our culture and our society would have to
happen at a number of levels. If it occurred only in the minds of
B individuals (as to some degree it already has) it would be powerless.
i
If it came only from the initiative of the state, it would be tyrannical.
Personal transformation among large numbers is essential, and it
must not only be a transformation of consciousness but must also
involve individual action. But individuals need the nurture of crops
c that carry a moral tradition reinforcing their own aspirations.
These are commitments that require a new social ecology and a
social movement dedicated to the idea of such a transformation."
International Treaties
D
9. International treaties vis-a-vis the rights of women was noticed
by this Court in a large ·number of judgments, some of which we may
notice at this stage.
l 0. In Githa Hariharan v. Reserve Bank ofIndia, [l 999] 2 SCC
E 228, this Court was faced with construing Section 6(a) of Hindu Minority
and Guardianship Act, 1956 and Section 19(b) of Guardian and Wards
Act, 1890. The sections were challenged as violative of the equality clause
of the Constitution, inasmuch as the mother of the minor is relegated to
an inferior position on ground of sex alone since her right, as a natural
F guardian of the minor, is made cognizable only 'after' the father. The court
relied upon the Convention on the Elimination of All Forms of
Discrimination against Women, 1979 ("CEDA W") and the Beijing
Declaration, which directs all State parties to take appropriate measures
to prevent discrimination of ail forms against women is quite clear. It was
G held by the court that 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.
11. In Air India v. Nergesh Meerza [1981] 4 SCC 335, this Court
H was faced with the constitutional validity of Regulation 46(i)(c) of Air India
ANUJGARG v. HOTEL ASSOCIATION OF INDIA 1003
[SINHA,J.]
Employees' Service Regulations, it was provided that the services of the A
Air Hostesses would stand tenninated on first pregnancy. The Court after
considering various US Supreme Court judgments regarding pregnant
women held that the observations made therein would apply to the
domestic cases.
12. In Municipal Corporation of Delhi v. Female Workers B
\ -{
(Muster Rollj & Anr., [2000] 3 SCC 224, the short question which was
to be decided by this Court was whether having regard to the provisions
contained in Maternity Benefit Act, 1961, women engaged on casual
basis or on muster roll basis on daily wages and not only those in regular
employment were eligible for maternity leave. The Court while upholding c
the right of the female workers to get maternity leave relied upon the
doctrine of social justice as embodied in Universal Declaration of Human
Rights Act, 1948 and Article 11 of the Convention on the elimination of
all forms of discrimination against women held that the provisions of the
same must be read into the service contracts of Municipal Corporation. D
1
13. In M_a{ihu Kishwar & Ors. v. State of Bihar & Ors., (1996]
5 SCC 125, challenge was made to certain provisions of Chotanagpur
Terrancy Act, 1908 providing succession to property in the male line in
favour of the male on the premise that the provisions are discriminatory
E
and unfair against women and, therefore, ultra vires the equality clause
in the Constitution. The Court while upholding the fundamental right of
the Tribal women to the right to livelihood held that the State was under
an obligation to enforce the provisions of the Vienna Convention on the
elimination of all forms of discrimination against women (CEDAW) which
-\ provided that discrimination against women violated the principles of F
equality of rights and respects for human dignity.
14. In Vishaka & Ors. v. State of Rajasthan & Ors., (1997] 6
sec 241, the writ petition was filed for the enforcement of the
fundamental rights of working women under Articles 14, 19 and 21 of G
the Constitution of India with the aim of finding suitable methods for
l
,, realization of the true concept of"gender equality"; and preventing sexual
harassment of working women in all work places through judicial process
to fill the vacuum in existing legislation. This Court while framing the
guidelines and norms to be observed by the employers in work places H
1004 SUPREME COURT REPORTS [2007] 12 S.C.R.

A to ensure the prevention of sexual harassment of women, inter alia, relied
on the provisions in the Convention on the Elimination of All Forms of
Discrimination against Women as also the general recommendations of
CEDAW for construing the nature and ambit of constitutional guarantee
of gender equality in our Constitution.
B
15. In Randhir Singh v. Union of India & Ors. [1982] 1 SCC
618, this Court while holding that non-observance of the principle of 'equal
pay for equal work' for both men and women under Article 39(d) of the
Constitution amounted to violation of Articles 14 and 16, recognized that
the principle was expressly recognized by all socialist systems of law
C including the Preamble to the Constitution of the International Labour
Organization.
16. In Liverpool & London S.P. & l Association Ltd .v. M V.
Sea Success I & Anr., [2004] 9 SCC 512, this Court had to interpret
D the meaning and import of the word 'necessaries' used in Section 5 of
the Admiralty Court Act, 1861. The Court whiled importing the meaning \
of the same through Foreign (American) Court decisions, opined:
"It is true that this Court is not bound by the American decisions.
The American decisions have merely a persuasive value but this
E Court would not hesitate in borrowing the principles ifthe same is
in consonance with the scheme of Indian law keeping in view the
changing global scenario. Global changes and outlook in trade and
commerce could be a relevant factor. With the change of time, from
narrow and.pedantic approach, the court may resort to broad and
F liberal interpretation. What was not considered to be a necessity
a century back, may be held to be so now."
Setting of the Debate
17. In the instant matter, we are in the thick of debate relating to
G Individual Rights of women. The classical counter to individual rights is
the community orientation of rights. There is no such shade to the current
matter. Here the individual rights are challenged by a problem of practical ' '
import - of enforcement and security.
18. Therefore, the important jurisprudential tenet involved in the
H
--\
'
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 1005
[SINHA,J.]
matter is not the prioritization of rights inter se but practical A
implementation issues competing with a right. It is one thing when two
norms falling in the same category (for instance Individual Rights versus
Community Orientation of Rights) compete and quite another when two
norms with unequal hierarchical status come in conflict with each other.
19. At the very outset we want to define the contours of the B
'~ discussion which is going to ensue. Firstly, the issue floated by the state
is very significant, nonetheless does not fall in the same class as that of
rights which it comes in conflict with, ontologically. Secondly, the issue at
hand has no social spillovers. The rights of women as individuals rest
beyond doubts in this age. Ifwe consider (various strands of) feminist c
jurisprudence as also identity politics it is clear that time has come that
we take leave of the theme encapsulated under Section 30. And thirdly
we will also focus our attention on the interplay of doctrines of self-
determination and an individual's best interests.
-' D
·1 Equality
20. When the original Act was enacted, the concept of equality
between two sexes was unknown. The makers of the Constitution
intended to apply equality amongst men and women in all spheres oflife.
In framing Articles 14 and 15 of the Constitution, the constitutional goal E
in that behalf was sought to be achieved. Although the same would not
mean that under no circumstance, classification, inter alia, on the ground
of sex would be wholly impermissible but it is trite that when the validity
of a legislation is tested on the anvil of equality clauses contained in Articles
14 and 15, the burden therefor would be on the State. While considering F
validity of a legislation of this nature, the court was to take notice of the
other provisions of the Constitution including those contained in Part IV
A of the Constitution.
21. In Bhe & Ors. v. The Magistrate, Khayelisha & ors., (2004) G
18 BHRC 52, 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 purporting
to give effect to the customary law of succession where principle of male
H
1006 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 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 extra-marital children from inheriting property. The rules of
B 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 overtime 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
C 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 grounds of gender was a clear
violation of the constitutional prohibition against unfair discrimination.
Further, the principle of primogeniture also violated the right of
D 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
E
22. 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.
F 23. 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
G 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
ofliquor is made permissible in the flight, the employment of women as
air-hostesses may be held to be prohibited.
24. Hotel Management has opened up a viesta of young men and
H
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 1007
[SINHA,J.]
women for employment. A large number of them are taking hotel A
management graduation courses. They pass their examinations at a very
yoWlg 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 B
right of employment. Right to be considered for employment subject to
just exceptions is recognized by Article 16 of the Constitution. Right of
employment itself may not be a fundamental right but in tenns of both
Articles 14 and 16 of the Constitution of India, each person similarly
situated has a fundamental right to be considered therefor. When a C
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 D
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
grass root democracy. They are now employed as drivers of heavy
transport vehicles, conductors of service carriage, pilots et. al. Women
can be seen to be occupying Class IV posts to the post of a Chief E
Executive Officer of a Multinational Company. They are now widely
accepted both in police as also army services.
Res Extra Commercium Issue
25. Occupation/service in the management of hotel industry is a F
specialized job. It requires specializ.ed skill. To deprive a large section of
successful yoWlg men and women from obtaining any job for which they
have duly been trained, in our opinion, would be wholly lllljust. The State
cannot invoke the doctrine of 'res extra comrnercium' in the matter of
appointment of eligible persons. The said principle could have been G
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
H
1008 SUPREME COURT REPORTS [2007] 12 S.C.R.

A other fields also. v·

16. In Kera/a Samsthana Chethu Thoxzhilali Union v. State of
Kera/a and Ors., [2006 4 SCC 327, this Court held:
"When an employer gives employment to a person, a contract of
B employment is entered into. The right of the citizens to enter into
any contract, unless it is expressly prohibited by law or is opposed I-

to public policy, cannot be restricted. Such a power to enter into
a contract is within the realm of the Indian Contract Act. It has
not been and could not be contended that a contract of employment
c in the toddy shops would be hit by Section 23 of the Indian
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
D 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 are also contrary to the
provisions of the Indian Contract Act as also the Specific Relief
Act, 1963."
E It was further observed: 4•
•
"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
F in tenns of the provisions of the licence, is not regulated."
~-

Parens Patriae Power of State
27. 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
G power is not entirely beyond the pale of judicial scrutiny.
28. 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.

H 29. The subject matter of the Parens Patriae power can be adjudged
.--\
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 1009
[SINHA, J.]
. ~

on two counts: A
(i) in tenns of its necessity and
(Ii) assessment of any tradeoff or adverse impact, if any
.. 30. This inquiry gives the doctrine an objective orientation and
I_,\ B
therefore prevents it from falling foul of due process challenge. [See City
of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-41 (1985)]
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 c
constitutional, statutory and social interdicts - a citizen oflndia should be
allowed to live her life on her own tenns.
31. Let us understand various standards which objectify Parens
~ Patriae. Best interests standard is one test in US jurisdiction in Child D
Custody matters. Similarly other standards have evolved amongst which
right to self-determination holds an important place.
Right to employment vis-a-vis Security: Competing Values
32. The instant matter involves a fundamental tension between right E
to employment and security.
33. The fundamental tension between autonomy and security is
difficult to resolve. It is also a tricky jurisprudential issue. Right to Self
-4
Detennination is an important offshoot of Gender Justice discourse. At
' the same time, security and protection to carry out such choice or option F
specifically, and state ofviolence-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.
34. Privacy rights prescribe autonomy to choose profession whereas G
. ) security concerns texture methodology of delivery of this assurance. But
it is a reasonable proposition that 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.
H
1010 SUPREME COURT REPORTS [2007] 12 S.C.R.

\-"-
A 35. 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 impugned Act. The present law ends up
victimizing its subject in the name of protection. In that regard the
interference prescribed by state for pursuing the ends of protection should
B be proportionate to the legitimate aims. The standard for judging the
~
proportionality should be a standard capable of being called reasonable
in a modem democratic society.
36. Instead of putting curbs on women's freedom, empowerment
would be a more tenable and socially wise approach. This empowerment
c should reflect in the law enforcement strategies of the state as well as law
modeling done in this behal£
37. Also with the advent of modem 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.
D \.
38. Gender equality today is recognized 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.
In the case of Abdulaziz, Caba/es And Balkandali v. United
E Kingdom, (1985) ECHR 7 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
F the ground of sex could be regarded as compatible with the
Convention."
Following Abdulaziz (supra) the European Court of Human Rights.
once again observed in Van Raalte v. The Netherlands, (1997) ECHR
6:
G
"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 (art. 14) showed that such had been
H
the prevailing view as early as 1950. Moreover, legal and social
-~.
'
ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 1011
[SINHA,J.]
developments showed a clear trend towards equality between A
men and women. The applicant drew attention to, inter alia, the
Court's Abdulaziz, Caba/es and Balkandali v. the United
Kingdom judgment of 28 May 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 B
Europe" and 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" (loc. cit.,
p. 38, para. 78)."
(emphasis supplied) c
[See also Schuler-Zgraggen v. Swizerland, (1993) ECHR 29; and
Petrovic v. Austria, (1998) ECHR 21]
Stereotype Roles and Right to Options
D
,. 39. Professor Williams in "The Equality Crisis: Some Reflections
·-<
on Culture, Courts, and Feminism" published in 7 WOMEN'S RTS.
L. REP. 175 (1982) notes issues arising where biological distinction
between sexes is assessed in the backdrop of cultural norms and
stereotypes. She characterizes them as "hard cases". In hard cases, the E
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
F
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.
40. Therefore, one issue of immediate relevance in such cases is
the effect of the traditional cultural norms as also the state of general G
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 state.
H
1012 SUPREME COURT REPORTS [2007] 12 S.C.R.

A 41. 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 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
B profession they choose to follow. Any other policy inference (such as
the one embodied under section 30) from societal conditions would be
oppressive on the women and against the privacy rights.
42. The description of the notion of"romantic paternalism" by the
US Supreme Court in Frontiero v. Richardson, (411 U.S. 677, 93 S.Ct.
C 1764) 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:

D "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 ...
E 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
p and repelled the administrative convenience argument in the following
terms: ;.~

"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
G 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
H
ANUJGARG v. HOTEL ASSOCIATION OF INDIA 1013
[SINHA, J.]
...., between the sexes, solely for the purpose ofachieving administrative A
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
(Constitution). We therefore conclude that, by according differential
treatment to male and female members of the unifonned services B
'~ for the sole purpose of achieving administrative convenience, the
challenged statutes violate the Due Process Clause of the Fifth
Amendment"
43. In another similar case wherein there was an effective bar on
females for the position of guards or correctional counsellors in the c
Alabama state penitentiary system. The prison facility housed sexual
offenders and the majority opinion on this basis inter alia upheld the bar.
Justice Marshall's dissent captures the ranges ofissues within a progressive
paradigm. Dissent in Dothardv. Rawlinson, (433 U.S. 321, 97 S.Ct.
,. 2720) serves as useful advice in the following tenns: D
_,
"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.'
E
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
F
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 G
)
response to feared misbehavior by imprisoned criminals."
He also notes the nature of protective discrimination (as garb) in the
following tenns:
H
1014 SUPREME COURT REPORTS [2007] 12 S.C.R.

A "The Court points to no evidence in the record to support the y-
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 sense will be used to mask the "romantic
B 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.
c The proper response to inevitable attacks on both female and male
guards is not to limit the employment opportunities oflawabiding
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
D 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 ofjob opportunities because
of the threatened behavior of convicted criminals is to turn our
E social priorities upside down."
The Standard ofJudicial Scrutiny
44. It is to be borne in mind that legislations with pronounced
"protective discrimination" aims, such as this one, potentially serve as
F double edged swords. Strict scrutiny test should be employed while
assessing the implications of this variety oflegislations. 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
G arrived at is outmoded in content and stifling in means.
45. No law in its ultimate effect should end up perpetuating the
oppression of women. Personal freedom is a fundamental tenet which can
not be compromised in the name of expediency until unless there is a
H compelling state purpose. Heightened level of scrutiny is the normative
~

ANUJ GARG v. HOTEL ASSOCIATION OF INDIA 1015
[SINHA,J.]
.,_,, threshold for judicial review in such cases. A
46. 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 B
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." c
47. 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
i
to the aim pursued. In this behalf it would be relevant to understand the D
-I
approach of 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.
E
48. 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. F

49. The Court's task is to determine whether the measures furthered
by the State in form oflegislative 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, G
right to privacy et al. The bottom-line in this behalf would a functioning
J modem democratic society which ensures freedom to pursue varied
oppo1tunities and options without discriminating on the basis of sex, race,
caste or any other like basis. In fine, there should be a reasonable
relationship of proportionality between the means used and the aim H
1016 SUPREME COURT REPORTS [2007] 12 S.C.R.

A pursued.
50. In United States v. Virginia, (518 U.S. 515, 532-33 (1996))
Justice Ginsburg notes with particular emphasis the need for an intrusive
multi-stage review in sex discrimination statutes. The court observed :
B "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
c 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
D 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)
E Changing Stand of the Government of NCT Delhi

51. The Government ofNCT Delhi, although did not challenge the
impugned judgment of the Delhi High Court, seeks to enter into the fray
through a side door. It, on the one hand, challenges the locus of the
-
F appellant which objection, if upheld, would make the appeal liable to be
dismissed at the threshold, on the other, seeks to justify the validity of
Section 30 of the Act. It cites examples of Jessica Lal and BMW to
highlight dangerous consequences of allowing sale and consumption of
liquor by young men below the age of25 years and vulnerability of women
G while working in bars. When the restrictions were in force, they could
not prevent such occurrences. If the restriction goes, some such incidents
may again happen. But only on a pre-supposition that there is a possibility
of some incident happening, we cannot declare a Jaw intra vires which

H
is ex facie ultra vires. -
ANUJGARG v. HOTEL ASSOCIATION OF INDIA 1017
[SINHA,J.]
52. We, furthennore, deprecate this practice of the Government of A
NCT to raise a contention of the aforementioned nature which not only
had not been raised before the High Court but in an appeal filed by a
few citiz.ens maintainability whereof is in question.
It, having allowed the judgment of High Court to attain finality, is
estopped by records to question the correctness of the impugned B
1 judgment.
Conclusion
53. In the instant case the end result is an invidious discrimination
perpetrating sexual differences. c
54. Young men \\<TIO take a degree or diploma in Hotel Management
enter into service at the age of22 years or 23 yerars. 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 D
of the right to livelihood do not stand judicial scrutiny.
55. For the reasons aforementioned, we do not find any infimiity in
the impugned decision of the High Court. The appeal is accordingly
dismissed. Cross-appeal filed by the respondents is allowed. There shali
be no order as to costs. E
S.K.S. CA No. 5657 of2007 dismissed and
CA No. 5658 of2007 allowed.
''