Thursday, February 2, 2023

Supreme Court strikes down gender cap rule in Mumbai hotel orchestras

The Supreme Court has declared 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, void but the court said the limit of performers cannot exceed.

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The Supreme Court on Friday declared 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, void. The court said the limit of performers cannot exceed 8 but the composition as per their gender can be of any combination.

The bench of Justices K.M. Joseph and Justice S. Ravindra Bhat passed the order. Justice Bhat, who pronounced the judgment, observed: “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. 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.”

Appellants Hotel Priya are operating restaurants and bars with the requisite licenses/permissions. Orchestra performances are a common feature in their premises, for which they are required to secure Premises and Performance licenses under Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 framed under the Maharashtra Police Act, 1951.

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The Commissioner of Police, Brihan Mumbai by order dated 12.09.2009 added several conditions to the existing conditions. However, the appellant challenged two major condition in regard to creating gender gap.

  • The licensee is permitted to keep only four women singers/artists and four male singers/artists to remain present on permitted stage.
  • Only eight artists are permitted to remain present on the permitted stage (four male and four women).

The Bombay High Court rejected the writ filed by the Hotel holding that the power to impose them was traceable to provisions of the Act, 1951, and rules framed under it and the Commissioner acted well within the power to impose such conditions.

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Advocate Prasenjit Keswani and Advocate-On-Record Manoj K. Mishra appeared on behalf of Hotel Priya submitted that the power of Commissioner to make rules under Section 33 is not challenged but the conditions restricting the establishments to engage only eight artists and further, strictly, four male and four female artistes is. The restriction on gender of the performers in an orchestral combination is restrictive of the performers’ right as well as the right of the organizers, i.e. the bar or owners of the place of entertainment.

If there are all-male bands orchestras or all-female bands or orchestras or any of them containing different permutations, the numerical restriction will have the impact of altogether prohibiting the participation of such bands. Further they submitted that there may be a performance which require participation of transgender person or only male person or only female or all together, in such circumstances gender specific is not reasonable.

The appellants relied on State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors Sections 33A and 33B (Power to make rules or regulations of traffic and for presentation of order in public place) of the Act, 1951 which had completely banned dancing, in liquor bars, but permitted them in clubs and three starred hotels and higher establishments were in issue. This court held that such provisions are discriminatory and thus violates Article 14, and that the total ban on dance in liquor bars was not justified as a reasonable restriction under 19(6) of the Constitution. It is submitted that the same logic would apply in the present case because the restriction on the number of performers tends to keep out a number of performers who might otherwise be entitled to join a band.

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On the other hand, the counsel for the state justified imposition of the numerical restrictions that they are in the interests of the general public, sub serve the larger interests of public morality, tend to protect women and to improve their working conditions so that orchestra bars do not take advantage of the situation and exploit women artists and waitresses, the appellants submitted that the reasoning has no basis in fact.

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 general public. The profits generated from such activities, induce the license holders to misuse such places of public amusement as contact points for prostitution.

Between 2009 and March 2013, in Mumbai, a total of 217 cases were registered under Section 294 IPC and 97 casesunder Sections 3,4,5 of the Immoral Trafficking (Prevention) Act, (PITA) 1956.

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Supreme Court on Gender restriction

After considering all the facts and circumstances, the Bombay High Court observed,

“It is thus clear that each of the arguments which the state is relying on, were considered in the context of challenge to statutory prohibitions, as well as license conditions. 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.”

In case there were any real concern for the safety of women, the state is under a duty – as highlighted by Anuj Garg case, 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.

The court observed that the regulation/restriction on the overall number of performers, or even the dimensions of the performance stage on which a performance 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.

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The restriction of limited number of performers as per their gender is 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”.

Case Name- Hotel Priya, A Proprietorship v State of Maharashtra

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