Case: Anuj Garg  Vs. Hotel Association Of India

the Alabama prison system is the eradication 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 of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down." The Standard of Judicial Scrutiny 44. 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 of legislations. 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 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 compelling state purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases. 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 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." 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 to the aim pursued. In this behalf it would be relevant to understand the 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. 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. 49. The Courts task is to determine whether the measures furthered by the State in form of legislative 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 behalf would a functioning modern democratic 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. 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: "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 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 individuals opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," to "promote equal employment opportunity," to advance full development of the talent and capacities of our Nations 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) Changing Stand of the Government of NCT Delhi 51. The Government of NCT 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 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 of 25 years and vulnerability of women 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 law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of 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 citizens 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 judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]51. The Government of NCT 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 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 of 25 years and vulnerability of women 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 law intra vires which is ex facie ultra vires.52. We, furthermore, deprecate this practice of the Government of 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 citizens 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 judgment.Conclusion53. In the instant case the end result is an invidious discrimination perpetrating sexual differences.54. Young men who take a degree or diploma in Hotel Management enter into service at the age of 22 years or 23 years. It, thus, cannot prohibit employment of men below 25 years. Such a restriction keeping in view a citizens right to be considered for employment, which is a facet of the right to livelihood do not stand judicial scrutiny.