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Can't Women Serve Liquor In Bars? Constitutional Analysis Of Legal Restrictions

Hannah M Varghese
27 March 2022 4:35 AM GMT
Cant Women Serve Liquor In Bars? Constitutional Analysis Of Legal Restrictions
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Exactly a week after International Women's Day, the Excise Department of Kerala registered a case against the Manager of a bar in Kochi for deputing three Russian women as bartenders during its launch party. The matter reached the excise officials after a video of the women bartending in style took social media by storm. Although the officials cited certain irregularities in the bar's...

Exactly a week after International Women's Day, the Excise Department of Kerala registered a case against the Manager of a bar in Kochi for deputing three Russian women as bartenders during its launch party. The matter reached the excise officials after a video of the women bartending in style took social media by storm. Although the officials cited certain irregularities in the bar's stock register, the Manager was primarily booked for employing women at the bar, violating the Kerala Foreign Liquor Rules.

Back in 2007, while dealing with an identical issue, the Supreme Court acknowledged the growing presence of women in all spheres. A Division Bench of Justices S.B. Sinha and Harjit Singh Bedi proclaimed: "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 Executive Officer of a Multinational Company. They are now widely accepted both in police as also army services."

However, even in a world that has witnessed active female participation in almost all sectors, the recent case in Kerala bears testimony to the fact that women are still combating workplace discrimination. Despite a surplus of resolutions and policies accentuating the need for a fairer treatment of women, there remain crevices the law has not yet sealed. As conceded by the Kerala High Court in 1994, women continue to be at a fundamental disadvantage in a male-dominated society and this disadvantage is still visible in all spheres of life.

The roots of such mistreatment can be traced back to the times when patriarchy took pride in declaring the role of a woman, deciding for her that her predominant duty is to fulfil the designations of a wife and eventually, a mother. This went on for so long that society became conditioned to view women as incompetent for other titles, which explains why India has had an unfortunately prolonged history of gender discrimination. It took centuries to overcome these barriers to gender equality and for women to start thriving and flourishing in their respective fields. 

Courts To The Rescue 

As the spectrum of career prospects broadened with time, the womenfolk started making progressive career choices and plunging themselves into unconventional fields, bartending being one of them. Nevertheless, as women started stepping into the once-male dominated territory, a majority of the onlookers flinched. Stereotypes and the country's deep-rooted paternalistic culture surfaced from all corners of the country. The argument was simple- being associated with alcohol in any manner was not the symbol of an 'ideal woman'.

Watching women defying the odds, patriarchy sprang into action and grabbed its opportunity to fix their appropriate place in society once again. Soon enough, a long scroll of laws unfurled in the country, restricting women in several States from working in bars. Many States including God's Own Country were quick to pass laws restricting women from working in bars or even hotels that serve liquor. While in some places it was a blanket ban, the others resorted to restrictions.  

Laws that prohibit women from being employees in bars undoubtedly qualify as gender discrimination which is expressly interdicted under Article 16(2) of the Constitution. Apart from this, such laws go against other Fundamental Rights guaranteed under the Constitution such as Articles 14, 15, 19 and 21. Yet the following rules remained in force until very recently. 

  • Section 30 of the Punjab Excise Act, 1914 prohibited employment of any man under the age of 25 years or any woman in any part of such premises in which liquor or intoxicating drug is consumed by the public. The Supreme Court in 2007 through the decision of Anuj Garg & Ors vs Hotel Association Of India & Ors rendered the provision unconstitutional. 
  • Similarly, the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960 framed under the Maharashtra Police Act, 1951 imposed a gender cap on the number of women or men who can perform in orchestras and bands in licenced bars. The Apex Court in Hotel Priya, A Proprietorship v. State of Maharashtra & Ors recently disapproved of this condition and struck it down as ultra vires the Constitution. 
  • An amendment to the Kerala Foreign Liquor Rules in 2013 brought in a new rule, Rule 27A, prohibiting women from being employed "in any capacity for serving liquor on the licensed premises'. Within a year of its enactment, the Kerala High Court through Dhanyamol v. State of Kerala declared that the impugned Rule was violative of Articles 14, 15 and 16 and thereby proclaimed it unconstitutional.  In 2016, another single bench, in the case struck down a government circular that barred women from employment in liquor shops.

However, despite this decision, Rule 27A is still in force. It is under this provision that the Excise officials booked the manager for employing Russian women in his bar. 

As such, the hospitality industry continues to shut its doors at women simply by virtue of gender differentiation. The laws have aggravated the scepticism and resistance towards female bartenders who were gradually becoming the changing face of the industry. The question that now arises is - why?

Because Bars Can't Keep Women Safe

The safety of women has been by far the most commonly used justification for restricting them from making independent choices, both in their personal and professional lives. In fact, the Kerala government once argued that restrictions were imposed only to protect women from being exposed to dangers in workplaces. While there may be an element of truth in this reasoning, in most cases, it is an offshoot of romantic paternalism. As accurately articulated by the US Supreme Court in Frontiero v. Richardson, "an attitude of 'romantic paternalism' in practical effect, put women not on a pedestal, but in a cage".

Needless to say, all policy decisions and statutory regimes that enforce such protective discrimination potentially serve as double-edged swords. While the end goal may seem empathetic, they end up perpetuating gender prejudice rather than ensuring women's safety. Any law that leads to such an ultimate consequence cannot be tolerated in this modern era. 

This tension between the right to employment and security can only be resolved when the Government realises that enacting legal provisions limiting women's employment opportunities in its attempt to protect them is a misguided presumption of its role as Parens Patriae. In fact, such laws that differentiate between genders merely for administrative convenience promotes distinct treatment of similarly situated men and women, which is precisely the sort of legislative discretion the Constitution prohibits.

Justice Thurgood Marshall's partial dissent in Dothard v. Rawlinson comes to mind when the safety of women is dragged into this debate. Back in 1977, there was a bar on females for the position of guards/correctional counsellors in the Alabama prison facility that housed sexual offenders. Although the majority opinion upheld the bar citing the likelihood of inmates assaulting a woman, Justice Marshall disagreed with the rule in the most befitting manner as reproduced below: 

"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."

How To Address The Concern Of Safety

Justice Marshall did not merely pinpoint his apprehension and leave it at that; he went on to suggest how it could be resolved. In his partial dissent, the US Supreme Court's first African-American justice proposed that instead of limiting the employment opportunities of law-abiding women, the emphasis should be on taking swift 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 a 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."

A similar approach can be taken to solve the matter at hand. While the women's rights activists keep lobbying for equal representation in the hospitality sector, if the relevant authorities are not equipped for the same, there is very little that can be accomplished. What the country needs is a gradual shift of focus from protecting women to promoting equality by improving the living and working conditions of its workers on an equal basis. Including women in the workspace shattering stigmas to overcome all social barriers is what would help them feel safer in pursuing bartending.

The truth is, losing the freedom to choose their vocation makes women just as vulnerable as lack of state protection. This implies that laws that inhibit female participation in bars are victimizing women in the name of protection. As rightly observed by the Supreme Court, '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 on this behalf.'

Therefore, the most feasible solution that would yield favourable results in the long run is to eliminate unequal outcomes of gender differences rather than entirely forbidding women employment in bars. As a matter of fact, the State is bound to inspire confidence in women to promptly discharge their duties no matter what profession they choose to follow. Any other form of interference motivated by societal conditions is nothing but oppression of women and their rights. 

State's Unwarranted Interference Oversteps Right To Privacy

It is understandable that the State would attempt to protect women to safeguard their welfare. But making career decisions for them counts as a violation of their right to privacy. Having lived in the internet age, the youth today possess remarkable self-awareness; they know what would work for them professionally and they are well equipped with the pros and cons of each career. As long as no constitutional, statutory or social rules are violated, an Indian citizen should be permitted to live her life on her own terms. That is to say, even the State's power of Parens Patriae can be challenged on the ground of right to privacy. 

As the Kerala High Court once said, "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."

Therefore, personal freedom cannot be compromised in the name of convenience if there is no convincing state purpose behind it. It is imperative to ascertain if the legislative actions promoted by the State to protect the interests of women are proportional to the other set of established gender norms like freedom, right to privacy and equality of opportunity. 

What The Indian Judiciary Has Voiced So Far

The journey of Indian women fighting the battle for workplace parity received wide legal recognition since the 1900s when they started branching out from their traditional roles. Several courts were soon summoned to address the issue of gender discrimination in many job posts in the country and most of them decided in favour of women. In 1999, the Supreme Court in its landmark decision of Githa Hariharan v. Reserve Bank of India established the obligation of the domestic courts to implement 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.

Two years later, the Madras High Court in Vasantha R. v. Union of India & Ors ruled that a provision that denies an opportunity for women to work during night hours when they are desirous of doing so for the betterment of their employment prospects is violative of Articles 14, 15 and 16 of the Constitution. It remarked, "there is no reason or rhyme to deny them employment or livelihood, which throws more opportunity, the potential employment cannot be denied on the sole ground of sex when no other factor arises."

In 2006, the Apex Court reviewed an interesting angle drawing parallels between the right of employment with the Indian Contract Act in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala & Ors. In this decision, it was highlighted that employment is nothing but a contract and that the Contract Act entitles citizens to enter into any contract unless expressly prohibited by law or opposed to public policy. The Division Bench while dealing with the issue of employment in toddy shops held that if contract of employment in a particular trade is not legally prohibited, the State's intervention is unwarranted. It also said, "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."

The most extensive and suitable judgment for women who aspire to work in bars came in 2007 in the decision in Anuj Garg (supra). While declaring Section 30 of the Punjab Excise Act unconstitutional, the Apex Court made several noteworthy observations in this judgment. The Division Bench emphasised that the hospitality industry had grown by leaps and bounds in the country and that liquor was served not only in bars but in restaurants and hotel rooms now. It indicated that such restrictions resulted in a logical corollary such as if service of liquor is made permissible on flights, women may be prohibited from being employed as air-hostesses as well. 

In the very same decision, there was a mention of the vast number of students pursuing hotel management graduation courses due to the increasing employment opportunities in the field. By inflicting restrictions, the Court opined that the State was tampering with their right of employment. It said, "If prohibition in the 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."

In 2010, the Kerala High Court in A. S. Rajamma v. State of Kerala precisely commented that the right of women should not be denied on fanciful assumptions of what work a woman can and cannot do. A year later, in Dhanyamol (supra) it was posed with the question of whether a woman can be deprived of employment solely on the ground of the alleged disadvantage she suffers from owing to her gender. The answer was obvious: such laws fall foul of the Constitutional scheme of gender equality. In 2016, the same Court in Sanuja v. Kerala State Beverages Corporation Ltd. found a Government Order prohibiting women from working in foreign liquor shops as violative of Articles 14 and 15 of the Constitution, and consequently rendered it unsustainable.

Fast-forward to 2020, the Kerala High Court in Treasa Josfine v. State Of Kerala & Ors laid down that protective provisions cannot stand in the way of a woman being considered for employment for which she is otherwise eligible. The Single Judge added, "It is the duty of the Government and Government functionaries to take all appropriate steps to see that a woman is able to carry out the duties assigned to her at all hours, safely and conveniently. If that be so, there would be no reason for denying appointment to a qualified hand only on the ground that she is a woman and because the nature of the employment would require her to work during night hours."

Very recently in February 2022, the Apex Court while in Hotel Priya (supra) disapproved gender-based stereotypes while holding that conditions imposing a gender cap on the number of women or men who can perform in orchestras and bands in licenced bars limit or exclude altogether women's choice of their avocation. The Division Bench made a phenomenal observation here: "Practices or rules or norms that are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society." 

A quick glimpse through these decisions illustrates a prominent irony: most of them have been rendered by the Kerala High Court, the same State where a hotel owner was booked for hiring women bartenders.  

Conclusion:

The situation in India is unusual- on the one hand, there are well-reputed professional women bartenders with illustrious careers, while on the other there are managers facing legal action for hiring women in their bars. This depicts how many miles we are yet to travel before we boast of having accomplished gender equality at the workplace. As a country, we can only proclaim so when women are not hindered from making any professional choices, and when they do not have to suffer mistreatment for their career choice. 

What is troubling is the fact that despite decisive judicial precedents from the Supreme Court as well as High Courts giving the green light for women to work as bartenders, there are still legal hindrances attempting to prevent their ascendancy in the sphere of bartending. These Rules are not only violative of the basic fundamental rights guaranteed under the Constitution, but they suffer from incurable obsessions of stereotype morality apart from the conception of sexual role. These restrictions infuriate the very rudimentary tenets of feminist jurisprudence.

Women are ready to venture into this profession and challenge the stereotype that comes with it. Speaking of stereotypes, it would be apt to conclude this discussion quoting Mumbai-based mixologist Fay Barretto from his interview with Vogue while addressing the double standards that blue-collar roles come with - 'no job is less than another.'

He added, "I can see that the dedication, creativity and focus that women and my community bring to the table is impeccable, and they learn so fast. I realise that bartending is a difficult space, but I'm sure they are most likely to make it more vibrant." In this context, it might be worthwhile to see how the Excise officials in Kerala found out about the women bartenders - the video went viral because of their unique bartending techniques.

On a lighter note, this makes one wonder- all the hesitation behind women serving in bars, could it perhaps be stemming from a fear that they might raise the bar a little too high?

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