Limits Women's Choice Of Avocation Under The Guise Of Protection : SC Quashes Gender Cap In Orchestra Bars: Hotel Priya A Proprietorship Vs State Of Maharashtra

JUDGEMENT SUMMARY:  
Hotel Priya A Proprietorship Vs State Of Maharashtra 

DATE OF JUDGEMENT: 
18th February 2022

JUDGES: 
B. R. Gavai
K.M. Joseph, J.
S. R. Bhat, J.

PARTIES:  
Hotel Priya A Proprietorship (Appellant)
State Of Maharashtra (Respondent)

SUBJECT

The gender cap was present in the orchestra performances where only 4 females and 4 males were allowed to perform on the permitted stage. The SC opined that the impugned gender-cap was the product of a stereotypical view that women who perform in bars and orchestras belonged to  a certain class of society. The SC quashed this gender cap in orchestra bars.

AN OVERVIEW

1. The Appellants operated restaurants and bars with the requisite licences where orchestra performances were common.

2. The Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 (1960 Rule) that was framed by the Commissioner of Police governed the orchestra performance in the bars.

3. The Appellants had challenged the following conditions of the 1960 Rule before the HC of Bombay:

a.  Only four female and four male performers were permitted to be present on permitted stage through licences.

b. The number of performers present on the permitted stage were limited to be 8.

4. The Appellants had pleaded that the aforementioned conditions were ultra vires to Article 14 and Article 19(1)(g) of the Constitution of India.

5. The HC of Bombay had dismissed the Appellants’ writ petition on the following grounds:

a.  The Commissioner while enforcing the 1960 Rule had exercised powers under the Maharashtra Police Act.

b. The Commissioner had the liberty to issue rules and regulations for the operation of the orchestra bars.

IMPORTANT PROVISIONS

Constitution of India

• Article 14- Right to Equality
• Article 15 (3)- Empowers State to make special provision for women and children
• Article 19 (1) (g)- Right to practise any profession, occupation, trade or business
• Article 19 (6)- Outlines reasonable restrictions on Article 19 (1) (g)

Maharashtra Police Act 1951

• Section 2(9)- Defines the phrase “place of public amusement”
• Section 2(10)- Defines the phrase “place of public entertainment”
• Section 33- Outlines the power for making rules or regulation

ISSUES

1.  Whether the challenged conditions violated Article 14 and Article 19(1)(g) of the Constitution?

ANALYSIS OF THE JUDGMENT

1. Under Section 33 (1)(w), (wa) (i) and (wa) (ii) of Maharashtra Police Act, the Commissioner was empowered to make rules to licence or control places of public amusement or entertainment and frame rules relating to the matter of licensing or controlling performances for public amusement in the interest of public order, decency, or morality or in the interest of general public. The powers of the Commissioner were undisputed.
2. The restriction on the gender of the performers in an orchestral combination infringed the rights of Performer and Organiser. All-male bands, all-female bands, bands containing different permutations and transgenders would be prohibited from participation in Orchestra  under the challenged conditions.  Thus, the Article 19(1)(g) of the Constitution would be violated and the present case did not fall within the ambit of the conditions present in Article 19(6).
3. The Counsel for the Respondent had argued that in Orchestra bars, women were exploited by making them engage in obscene dance and sexual activities. The conditions were safeguards provided to women under Article 15(3) of the Constitution. The cap on the gender was intelligible differentia which had reasonable nexus to the object sought to be achieved by the law. The conditions were reasonable restrictions under Article 19(6) in the interests of the general public-protecting the dignity of women and preventing their exploitation.
4.  In the State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors,  it was held that sufficient powers were vested with the licensing authority to safeguard the dignity of women. The licensing authority could direct the stoppage of any performance that was found objectionable. The competent authorities could even suspend or revoke a licence of any the establishment. The ground of intelligible differentia was rejected by the SC.
5. In Indian Hotel and Restaurant Association & Anr. v. State of Maharashtra & Ors., the SC had rejected the contention that the performances in dance bars were against public morale.  It was held that the State  had failed to ensure that the restrictions on performing in dance bars were in the interest of the general public. The obscene performances were punishable under few pre-existing legislations. Further, the arguments of the State that the restriction was necessary in the public interest, interest of public morals, to promote the welfare of women, prevent human trafficking in women, and their exploitation were rejected by the SC as State had failed to justify how the gender-cap was regulatory measure.
6. In Anuj Garg & Ors. v. Hotel Association of India & Ors., it was held that women would also be vulnerable if they lost their freedom because of the Act which was supposedly enacted to provide them protection. The law ended up victimising its subject in the name of protection. The State for pursuing the ends of protection could interfere in such a manner that the interference was proportionate to its legitimate aims. The standard of proportionality was required to be a standard capable of being called reasonable in a modern democratic society.

CONCLUSION

The SC held that the gender-cap directly transgressed Article 15 (1) and Article 19 (1) (g). The impugned judgement of the HC of Bombay was set aside and the  petition was partly allowed. The SC held the following:

1. The condition which imposed the gender-cap in 1960 Rule and other allied provisions were void.
2. The limit of total number of performers was to remain eight as provided in 1960 Rule regardless of the composition.

It was pointed out that if there were any real concern for the safety of women, it was the duty of the State  to create conducive  working environments, to run the extra mile to facilitate women’s employment, rather than thwarting it and stifling their choice.

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