Introduction
Laws that seek to protect women by keeping them out of certain occupations have a long history, and the constitutional question they raise is whether protection of this kind can be justified when it operates as a restriction on the very persons it claims to benefit. In Sophy v. State of Kerala & Ors. (WP(C) No. 27762 of 2024; 2026 LiveLaw (Ker) 606), Justice P. Gopinath of the Kerala High Court has struck down Rule 7(37) of the Kerala Abkari Shops Disposal Rules, 2002 (“2002 Rules”), which prohibits the employment of women in any capacity in toddy shops. Relying on the Supreme Court’s decision in Anuj Garg & Ors. v. Hotel Association of India, the Court held that the Rule is violative of Articles 14, 15, 19 and 21 of the Constitution. The decision reiterates that the State’s duty to ensure the safety of women is to be discharged by securing safe workplaces and not by closing workplaces to them.
Factual Background
The petitioner is the wife of a late employee of a toddy shop in Thrissur district. Following her husband’s death, she sought compassionate appointment in the same toddy shop. Her request was declined by reference to Rule 7(37) of the 2002 Rules, which bars the employment of women in any capacity in such shops. Aggrieved, she approached the High Court and challenged the Rule as unconstitutional.
Contentions Before the Court
The senior counsel for the petitioner relied on Sanuja & Ors. v. Kerala State Beverages Corporation Ltd. & Ors., in which a similar prohibition relating to foreign liquor shops was struck down, and on the Supreme Court’s decision in Anuj Garg, which was relied upon in that case. Reference was also made to Dhanyamol v. State of Kerala, where a comparable rule in the Foreign Liquor Rules, 1953 was set aside. It was contended that Rule 7(37) must likewise be struck down as violative of Articles 14, 15, 16 and 21.
The State defended the Rule on the ground that it was framed to protect women from exploitation and workplace harassment, and that, since toddy shops are often located in remote places, it is the duty of the State to ensure that women are not employed there for their own safety and well-being. It was argued that the Rule merely lays down a reasonable classification. The State relied on the Division Bench decision in Kerala Public Service Commission v. Manjusha (2009), which upheld the exclusion of women from appointment as Night Watchman, and on a decision of the Punjab and Haryana High Court upholding the prohibition on employing women in men’s jails. It further invoked the presumption of constitutionality and contended that the liquor trade is res extra commercium, so that no fundamental right can be claimed in respect of it. Counsel for the toddy shop licencee supported the State, adding that a toddy shop is structurally different from a foreign liquor shop because the latter does not sell liquor loose, and that problems arising in a toddy shop may not arise in a foreign liquor shop.
Protection Cannot Be Achieved Through Prohibition
The Court held that the Rule could not be sustained. Applying Anuj Garg, it found that, on the facts, the Rule was neither justified in principle nor proportionate. The Court observed that, instead of prohibiting the employment of women in toddy shops altogether, the State should focus on ways of eliminating the unequal consequences of sex differences, and should ensure conditions of safety that give women the confidence to work wherever they wish and to choose any profession they want.
The Court added that, while the State is under an obligation to ensure that women are not harassed and have a safe environment in which to work, that responsibility cannot be discharged by prohibiting women from working in whatever industry they choose. The reasoning thus treats the State’s protective objective as legitimate but holds the means chosen, a blanket exclusion, to be disproportionate, and on that footing finds a breach of Articles 14, 15, 19 and 21.
Distinguishing the Precedents Relied on by the State
The Court distinguished the decisions cited by the Government Pleader. In those cases, it noted, the courts had concluded that it would be hazardous for women to be employed as Night Watchmen, Shed Clerks or Shore Mazdoors, or in jails, and that the State was entitled to exclude women from such posts in the interest of efficiency in public service. No comparable situation arose here. Although it was suggested that the Rule had been framed with the safety of women in mind, there was no material before the Court to show that the considerations that weighed in those cases applied to toddy shops.
Directions
The Court directed that the petitioner’s claim for compassionate appointment be considered without regard to Rule 7(37), which stands struck down. It further held that any condition imposed on the licence of the fifth respondent, the toddy shop licensee, on the basis of the Rule cannot be sustained. The petition was accordingly allowed.
AMLEGALS Remarks
The ruling signifies that courts are likely to examine evidence demonstrating a genuine and specific risk in instances of gender-related employment restrictions. Courts will carefully assess the proportionality of such restrictions rather than consider the protective wording at face value. A rule barring women from any occupation without any indication of a physical danger that cannot otherwise be remedied is likely to meet with legal challenges. It is also noteworthy that the argument concerning the fact that the trade in liquors is res extra commercium and the presumption of constitutionality did not keep the court from considering the Rule in light of Articles 14, 15, 19, and 21, as well as explaining the differences in the current cases as compared to the earlier ones without fully overruling them.
For any queries or feedback, feel free to connect with Hiteashi.desai@amlegals.com