Pankaj Bajpai

New Delhi, February 22, 2022: Taking into account the history of controversies relating to prohibition and restriction in participation of women from performances in orchestras in hotel bar establishments in Maharashtra, the Supreme Court has declared that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in bars licensed under the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 framed under the Maharashtra Police Act, 1951, are void.  

While the overall limit of performers in any given performance cannot exceed eight, the composition (i.e., all female, majority female or male, or vice versa) can be of any combination, added the Court.

Observing that the restriction is upon the gender, a Division Bench of Justice Ravindra Bhat and Justice K.M Joseph highlighted that this restriction directly transgresses Article 15 (1) and Article 19 (1) (g) of the Constitution – the latter provision both in its effect to the performers as well as the license owners.

Going by the background of the case, Hotel Priya (Appellants) are either owners or are operating restaurants and bars with the requisite licenses/permissions. Orchestra performances are a common feature in their premises. For this feature, they are required to secure Premises and Performance licenses under Rules 1960 framed under 1951 Act. The Commissioner of Police, Brihan Mumbai, exercising powers u/s 33 (1) (w)(i) and (w)(ii), Section 162(1) of Act, 1951 r/w Rule 108A, 109, 118, 207 and 209 of the Rules, 1960, included several conditions imposing gender gap in addition to the existing conditions mentioned in the Premises License, which came to be challenged before the High Court.

Before the High Court, the appellants contended that identification of particular number of artists or imposing any restrictions on the number of artists, whether male or female, has no bases either in Act, 1951 or Rules, 1960 and violates Article 14 and Article 19(1)(g) of the Constitution of India.

The High Court repelled the challenge to the conditions imposed by the Commissioner, holding that the power to impose them was traceable to provisions of the Act, 1951, and rules framed under it. It was also held that the commissioner was granted liberty to issue such conditions as were essential, for the operation of the orchestra bars. The High Court, therefore, rejected the petitions, holding that the Commissioner acted well within the power to impose such conditions.  

After considering the submissions, the Top Court noted that the justification provided by the State of Maharashtra to sustain the restriction, in so far as they claim to protect the women, in the opinion of this court, lay it open to the charge of entombing their aspirations. 

In case there was any real concern for the safety of women, as highlighted in case of Anuj Garg & Ors. v. Hotel Assciation of India & Ors. ,(2008) 3 SCC 1, the state is under a duty to create situations conducive to their working, to run that extra mile to facilitate their employment, rather than to thwart it, and stifle their choice, added the Court. 

Speaking for the Bench, Justice Bhat pointed that such measures which claim protection, in reality are destructive of Article 15 (3) of the Constitution as they masquerade as special provisions and operate to limit or exclude altogether women’s choice of their avocation.

In the present case, the regulation on the overall number of performers, or even the dimensions of a stage (on which a performance can take place) cannot be characterized as a restriction; they can fall within the legitimate domain of the authority of the commissioner or the government which formulates such conditions, added the Bench. 

As the authorities of this court have repeatedly emphasized, whenever challenges arise, particularly based on gender, Justice Bhat pointed out that is the task of the judges to scrutinize closely, whether, if and the extent to which the impugned practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism. 

The Apex Court therefore concluded that such attitudes have no place in our society and recent developments have highlighted areas hitherto considered exclusive male “bastions” such as employment in the armed forces, are no longer so.

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