'Limits Women's Choice Of Avocation Under The Guise Of Protection' :Supreme Court Quashes Gender Cap In Orchestra Bars

In a significant judgment disapproving gender-based stereotypes, the Supreme Court held that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, in licenced bars, is unconstitutional.

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 Court clarified, while allowing the appeal filed by a hotel challenging the restrictions imposed by Mumbai Police (Hotel Priya, A Proprietorship v State of Maharashtra and others).

The Court observed that the restriction capping the number of women performers emanated from gender-based stereotypes.

"Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society", the bench comprising Justices KM Joseph and S. Ravindra Bhat observed. The court added that such restrictions limit or exclude altogether women's choice of their avocation. 

"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", the Court noted.

"..recent developments have highlighted areas hitherto considered exclusive male "bastions" such as employment in the armed forces, are no longer so", the Court noted.

Background facts

 In this case, the owners and operators of 'Orchestra bars', challenged before the High Court of Bombay certain conditions imposed by the Commissioner of Police, Brihan Mumbai under Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 framed under the Maharashtra Police Act, 1951: (1) The licensee is permitted to keep only four women singers/artists and four male singers/artists to remain present on permitted stage. (2) Only eight artists are permitted to remain present on the permitted stage (four male and four women). They 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 dismissed writ petitions, holding that the Commissioner acted well within the power to impose such conditions.

The issue considered by the Apex Court bench in appeal was whether the restriction imposed through conditions of license, are impermissible because they are not part of the rules or have not been enacted in any provision of law, and whether the conditions are violative of Articles 14 and 19 (1) (g) of the Constitution of India.

The court noted the justification given by the state that the restrictions are necessary in the public interest, to promote the welfare of women, prevent human trafficking in women, and their exploitation and observed thus:

46. 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.

The Court referred to the judgment in Anuj Garg & Ors. v. Hotel Association of India & Ors (2008) 3 SCC 1 (where a restriction of women working in liquor shops was struck down), C.B. Muthamma v. Union of India (1979) 4 SCC 260(which invalidated a condition on women army officers for obtaining prior permission for marriage). The Court also referred to the previous rounds of litigation relating to dance bars in Maharashtra, where the total prohibition on dance bars was struck down.

Regarding condition (2), the court said that 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. However, the 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 belong to a certain class of society, the court noted. It was further observed thus:

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.