Kerala High Court allows employment of women in toddy shops

The Kerala High Court has struck down a provision of the Kerala Abkari Shops Disposal Rules, 2002 (2002 Rules), which prohibited the employment of women in toddy shops, holding that such a restriction violate the fundamental rights under the Indian Constitution. [Sophy v State of Kerala & ors]

Justice Gopinath P ruled that such a restriction was violative of fundamental rights under the Indian Constitution.

The judge held that the State cannot justify a complete prohibition on women's employment in toddy shops on the ground of ensuring their safety; instead, it must create a safe working environment that allows women to pursue the employment of their choice.

The Court observed that while the State has a responsibility to protect women from harassment at the workplace such protection cannot be achieved by denying them employment opportunities.

"For the sake of reiteration, it may be stated that while the State has an obligation to ensure that women are not subjected to harassment and must have a safe environment to work, such a responsibility on the State machinery cannot be achieved by prohibiting women from working in whatever industry they choose to work," the Court added.

The August 5 ruling came on a petition filed by Sophy, whose husband KJ Kunjupalu, was employed at a toddy shop in Ponjanam, Thrissur.

Following her husband's death on May 20, 2024, she sought employment at the same toddy shop on compassionate grounds. However, her request was rejected because Rule 7(37) of the 2002 Rules prohibited the employment of women in any capacity in toddy shops.

She subsequently approached the High Court challenging the constitutional validity of the provision.

The petitioner argued that the High Court had previously struck down similar restrictions on women's employment in foreign liquor shops in the 2017 judgment in Sanuja and Others v Kerala State Beverages Corporation Ltd and Others.

She also relied on the Supreme Court's 2008 judgment in Anuj Garg and Others v Hotel Association of India and Others, which held that the state must ensure women's safety rather than excluding them from employment opportunities.

The State government defended the restriction, stating that the prohibition was necessary to ensure women's safety and well-being as toddy shops are often situated in remote locations and structurally different from foreign liquor shops.

They also argued that the petitioner could not claim a fundamental right to employment in that industry since liquor trade is an activity outside ordinary commerce and does not enjoy the protection of a fundamental right to carry on trade or business.

However, the Court rejected the state's arguments and held that the restriction was neither justified nor proportionate to its stated objective of protecting women.

"As observed by the Supreme Court, instead of prohibiting the employment of women in toddy shops altogether, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated, and it should also ensure circumstances of safety which inspire confidence in women to work wherever they want and choose any profession they want," the Court stated.

It also clarified that while there might be restrictions on carrying out the liquor business, the same cannot be invoked to deny eligible persons from getting employment in that industry.

The Court ultimately declared Rule 7(37) of the 2002 Rules as unconstitutional and violative of Article 14 (right to equality), 15 (prohibition of discrimination on grounds including sex), 19 (fundamental freedoms, including right to practice a profession or carry on an occupation) and 21 (right to life and personal liberty) of the Constitution.

It further held that any condition imposed on the toddy shop licensee based on the said provision could not survive.

Accordingly, the Court directed the authorities to consider the petitioner's claim for compassionate employment.

Senior counsel Ranjith Thampan instructed by advocate VM Krishnakumar appeared for the petitioner.

Government pleader Chithra P George represented the state authorities.

Advocate MC John appeared for the toddy shop licensee.

[Read Judgment]