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Anuj Garg v. hotel association of India and others is one of the most celebrated cases in Indian history. This case was the first one to adopt ‘the strict scrutiny test’ in the case of sex discrimination claims. As per the pre-constitutional Punjab excise act, under section 30, any person below the age of 25 and ‘any’ woman is prohibited to be employed in the premises where liquor or any intoxicating substance is served. This judgment was passed by Delhi high court as constitutional in 2006. Various hotel associations challenged this judgment and regarded it to be in violation of the fundamental rights of equality and freedom provided by articles 14, 15, and 19(1)(g) (Anuj Garg & Ors vs Hotel Association Of India & Ors, 2007). the law may not provide any individual to trade in liquor as a fundamental right, but it can also not take away the right to seek employment in places that have proper licenses for the liquor trade.
Article 14 gives equality before the law. It disallows states to promote inequality in any terms, on any basis within the territories of India. However, the judgment passes by the high court treats women unequally in the first sentence itself. Article 15 gives protection against discrimination based on religion, caste, sex, or place of birth. Anuj Garg v. hotel association was an evident example of discrimination as per sex. Article 19(1)(g) gives freedom to work and select any occupation (Constitution of India,1950). The court cannot hold back employment opportunities from any citizen, provided the citizen is ready to work for it wholeheartedly. Since the act was pre-constitutional, it can be argued that the law was made to protect women from harassment and other sexual pretenses. However, in other words, it is just the objectification and stereotyping of women as sexual objects that by merely their presence in such premises, they are invoking the desire of being harassed. Even if it was acceptable in that era that women are homemakers and are not needed to work or go out, times have changed now. The same rules do not apply. Prohibition of women to work is just like caging them sugarcoated with the false pretense of their safety. However, it goes unnoticed that sometimes, women are also not safe in their house if the man is drunk!
Coming back to the case, the Supreme Court applied the famous ‘strict scrutiny’ on the state. Any judgment passed by the state which violates fundamental rights will be the state’s burden of proof and will be scrutinized and the judgment passed till then will remain to be unconstitutional. Strict scrutiny requires that the law should have a compelling purpose for it to be constitutional. The state, in this case, needs to provide valid reasonings and arguments as to why they are prohibiting the employment of women and why their judgment should stand unharmed. The first reason which state produced was of ‘Parens Patriae’ or parent of the country (Anuj Garg & Ors vs Hotel Association Of India & Ors, 2007). The state argued that they are acting like a parent and are just protecting their people, especially women. One can use this power in cases of necessity. People who wish to get employed are mature enough to discern properly. They know what they are getting into, what they can expect, and how they must conduct themselves during the crisis, if any. It is their choice and the state shall have no say in it. The supreme court rejected this reasoning and asked for more proof.
Anuj Garg’s case saw many irrational arguments which were not supported by facts. The Githa Hariharan v. Reserve Bank of India, the case cited in Anuj Garg does not fall in accordance with the strict scrutiny as stated by the supreme court in Anuj Garg. In Githa Hariharan, the father is given the legal guardianship of the minor and after him, the mother is the guardian. This case is also a nice example where the court fails to notice the sex discrimination which takes place even after the justifications that after means in the absence of the father and not the death. In Githa Hariharan, the judgment is presumed to be constitutional until proven otherwise (Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr, 1999). If the court had known what exactly it wanted to do, it would not use the Hariharan case to promote its point. There was a clear contradiction between what the court said and how it was backed up. In another case of Air India v Nargesh Meerza, the court agreed to regulations 46 and 47 of Air India employee services regulation. According to which retirement age of female stewards is 35 and there are restrictions on her marriage and pregnancy. The court agreed that it was discriminating however, the idea of marriage was constitutional. (Air India Etc. Etc vs Nergesh Meerza & Ors. , 1981). It was only women’s duty for family planning and was not applicable to the male stewards. Keeping in mind the cases used to describe Anuj Garg, I feel whether the court fully applied strict scrutiny or not. Strict scrutiny required the law to be narrowly tailored and is supposed to be least restrictive to attain the objective. I do not think the state was able to fully do so. It may happen that the court meant ‘strict scrutiny’ as strict inspection and surveillance only and did not refer to it as ‘strict scrutiny’ as referred to in the doctrine.
The case also raised how section 30 of the act is just stereotypical in terms of sexual roles. Both genders are treated unequally. Whether it was Air India v Nargesh Meerza, Githa Hariharan v Reserve Bank of India, or Anuj Garg v hotel associations, gender injustice prevailed during the whole course. It is acceptable that the concept of equality among genders was not considered and required during the pre-constitutional times, however, times have changed now.
The court brought in the dimension of the ‘anti-stereotyping principle’ which was borrowed from Americans just like the strict scrutiny test (Bhatia, 2014). To support this argument, the court referred to two cases, Frontiero v. Richardson and US v. Virginia.
In the case of Frontiero, court demanded the evidence from women about the dependency of their spouse to avail benefits, but no such evidence was asked from males. The court here stereotyped the women as being the homemakers and men to be the bread earners. The court had to strike down the law to protect the laws provided by the American constitution (Frontiero v. Richardson, 1973).
Other cases prohibited the admission of females to the Virginia Military Institute in terms of differences in the training of men and women to produce citizen soldiers. They argued that both sexes needed different environments to practice. The court struck down this as unconstitutional and said that there are no fixed notions of roles and abilities where men and women are concerned (United States v. Virginia, 1996).
According to me, this case not only violates Articles 14,15, and 19 but also violates Article 21. By objectifying, it violates the right to reputation, the right to dignity, and the right to personal liberty. The state shall not take any decision which violated the golden triangle of the constitution (Constitution of India,1950). Anuj Garg’s case also showed some of the stereotypical ideas of the masses as to how a woman should not be employed at the locations where liquor is served. They are being projected as sex symbol and the one who invokes discrimination and unjust behavior by just being in the same room with a man. This act simply disdains a woman’s dignity.
In the name of protection, legislation has ended up victimizing the subject. In a progressive democratic society, such legislation may hinder the growth of the nation. The state cannot ban the employment of anyone in any place presuming the worst of the scenarios. If women’s safety is the major issue over here, the state shall make laws that protect them, not cage them and stop them from pursuing what they wish. In the following case, determined hours could have worked. Hotels could have created some protection policies which can provide a safe work environment. Pickup and drop facilities could have been more reasonable instead of a complete ban.
There are ways in which the state can protect its people. Depriving them of something just to protect them and the violation of other laws will never be a solution. The supreme court later gave the judgment which dismissed the appeal and wanted states to promote equality. However, absolute equality can be questioned and regulated as per changing times through the help of properly laid guidelines. Finally, an illegitimate and arbitrary judgment was thus proved to be unconstitutional.
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