Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960 – rr.108, 109, 120, 122 and 123 – Constitution of India – Article 15(1), 19(1)(g) – Impugned conditions inter alia imposed a gender cap as to the number of women or men, who can perform in orchestras and bands in licensed bars – Challenge to – Conditions upheld by High Court – On appeal, held: Impugned gender cap is the product of stereotypical view that women who perform in bars and establishments, like the appellants, belong to a certain class of society – Such measures that claim to protect the women, in reality are destructive of Art.15 (3) – This restriction directly transgresses Art. 15(1) and Art. 19 (1) (g)- the latter provision both in its effect to the performers as well as the license owners – 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 1960 Rules and other allied provisions, is void – However, 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 – Thus, 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 – Impugned judgement set aside – Maharashtra Police Act, 1951 – ss.2(9), 2(10), 33(1), 33(2), 162(1) & 162(2). Allowing the appeals, the Court
HELD: 1.1 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. 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 order of this court dated 02.03.2016 (in Writ Petition (C) No. 793/2014) had recorded that the conditions could limit the size of the stage (where performances were to be held) to an area of 10 ft x 12 ft size “in restaurant area/permit room as per approved plan of the Excise Department for F.L.-III with non-transparent partition between restaurant and permit room area.” The court was informed that the limit on the number of performers would be four. While an overall limit of the number of performers, which is eight in the present case, cannot be considered unreasonable, since the enclosure (120 sq feet) would also include instrumentalists, that order did not have any occasion to consider the gender-cap for the troupe or band. [Paras 39, 40][344-C-F]
State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors. (IHRA-I) (2013) 8 SCC
519 : [2013] 7 SCR 654; Indian Hotel and Indian Hotel and Restaurant Association v. State of Maharashtra (IHRA-II) (2015) 16 SCC 100; Restaurant Association & Anr. v. State of Maharashtra & Ors. (IHRA -III) (2019)
3 SCC 429 : [2019] 1 SCR 371 – referred to.
1.2 The impugned gender-cap (i.e. four females and four males, in any performance) appears to be the product of a stereotypical view that women who perform in bars and establishments, like the appellants, belong to a certain class of society. The justification provided by the respondents, 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 were any real concern for the safety of women, the state is under a duty - as highlighted by Anuj Garg, 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. Such measures – which claim protection, in reality are destructive of Article 15 (3) as they masquerade as special provisions and operate to limit or exclude altogether women’s choice of their avocation. [Paras 42, 46][345-A; 347-EG] Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1 : [2007] 12 SCR 991 – relied on.
1.3 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. In view of this court’s conclusion and findings that the restriction is upon the gender, in the sense that it seeks to cap the number of performers on the basis of gender. This restriction directly transgresses Article 15 (1) and Article
19 (1) (g)- the latter provision both in its effect to the performers as well as the license owners. In view of these findings, this court is of the opinion that it is unnecessary to address the question as to whether the condition imposed- and held to be unenforceable and void, is “law”. As the authorities of this court have repeatedly emphasized, whenever challenges arise, particularly based on gender, it 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. Such attitudes have no place in our society; recent developments have highlighted areas hitherto considered exclusive male “bastions” such as employment in the armed forces, are no longer so. Similarly, in the present case, this court holds that the gender cap imposed by the impugned condition is void. One hopes that the present judgment would still a lingering and discordant note of a cymbal silenced long back, by previous judgments of this court. The impugned judgment is set aside. It is hereby 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. 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. The appeals are allowed, but with no order on costs. [Paras 47-49][347-H; 348-A-F]
Joseph Shine v. Union of India (2019) 3 SCC 39 : [2018] 11 SCR 765 – followed.
Karnataka Live Band Restaurants Association v. State of Karnataka (2018) 4 SCC 372 : [2018] 1 SCR 533 – distinguished.
C.B. Muthamma v. Union of India (1979) 4 SCC 260 : [1980] 1 SCR 668 – relied on.
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)
3 SCC 615 : [1986] 3 SCR 518; Union of India v. Naveen Jindal (2004) 2 SCC 510 : [2004] 1 SCR 1038; State of Punjab v. Devans Modern Breweries Ltd & Anr. (2004) 11 SCC 26 : [2003] 5 Suppl. SCR 930 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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