Condition imposing gender cap to number of women/men, who can perform in orchestras and bands, in licenced bars, is unconstitutional: SC disapproves gender-based stereotypes
The Supreme Court disapproved gender-based stereotypes and ruled that the condition imposing gender cap to the number of women/men, who can perform in orchestras and bands, in licenced bars, is unconstitutional.
Background
The appellants are either owners or are operating restaurants and bars with the requisite licenses/permissions. Orchestra performances are a common feature in their premises. The Commissioner of Police, Brihan Mumbai, exercising powers under Section 33 (1) (w)(i) and (w)(ii), Section 162(1) of Act, 1951 read with Rule 108A, 109, 118, 207 and 209 of the Rules, 1960, by orders in addition to the existing conditions mentioned in the Premises License, added several conditions.
Certain conditions were challenged by the petitioners and connected matters. The conditions were that the licensee is permitted to keep only four women singers/artists and four male singers/artists to remain present on the permitted stage. Only eight artists are permitted to remain present on the permitted stage (four male and four women).
Arguments
Advocate Prasenjit Keswani and Advocate Manoj K. Mishra, appearing for the appellants contended that the impugned conditions restricting the establishments to engage only eight artists and further, strictly, four male and four female artistes, are violative of Article 14 and Article 19(1)(g) of the Constitution.
Advocate Sachin Patil, appearing for the respondent, argued that the history of the legislation showed that orchestra bars are a new form of dance bars where the same women who were previously employed in the dance bars, now perform as orchestra artistes. These places exploit women by making them do obscene dance moves and also engage in sexual activities with the customers. The condition of having only four women has been made under Article 15(3) for safety of women employees/artistes and in the interest of the general public.
Decision
The division bench of Justice K.M. Joseph and Justice S. Ravindra Bhat noted that the arguments advanced in the present case that the restrictions are necessary in the public interest, to promote the welfare of women, prevent human trafficking in women, and their exploitation, and that the restrictions are necessary in the interest of public morals, are well worn, and have been decisively rejected.
The court stated that apart from regurgitating the same rejected submissions, the state has not justified, independently, how the gender-cap, as for an individual orchestra or band, is regulatory.
The court set aside the impugned judgment and 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 Rules, 1960 and other allied provisions, is void.
The court made it clear that while the overall limit of performers in anygiven performance cannot exceed eight, the composition (i.e., all female, majority female or male, or vice versa) can be of any combination.
Case title: Hotel Priya, a Proprietorship v/s State of Maharashtra & Ors.
Citation: ARISING OUT OF SLP (C) NO. 13764 OF 2012
