The Kerala High Court in, on 17th September 2015, in the matter of constitutionality of the new Rule introduced via amendment of the Kerala Foreign Liquor Rules dated 9-12-2013, 2015, 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.