Supreme Court Strikes Down Gender Cap on Orchestra Performers in Maharashtra Bars

Introduction

Date of the Judgment: 18 February 2022

Citation: (2022) INSC 131

Judges: K.M. Joseph, J., S. Ravindra Bhat, J.

Can the government dictate the gender composition of performers in an orchestra band? The Supreme Court of India recently addressed this question, which has significant implications for the entertainment industry and gender equality. This case revolves around the legality of conditions imposed by the Maharashtra Police, limiting the number of male and female artists in orchestra bars. The court examined whether these restrictions infringe upon fundamental rights guaranteed by the Constitution.

The judgment was delivered by a two-judge bench comprising Justice K.M. Joseph and Justice S. Ravindra Bhat, with the majority opinion authored by Justice S. Ravindra Bhat.

Case Background

The appellants in this case are owners or operators of restaurants and bars in Maharashtra, where orchestra performances are a regular feature. These establishments, known as “Orchestra Bars,” require licenses under the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960, which are framed under the Maharashtra Police Act, 1951. The Commissioner of Police, Brihan Mumbai, through an order dated 12 September 2009, imposed additional conditions on these licenses, including a restriction on the number and gender of performers.

Specifically, the order stipulated that only four women and four men could be present on stage during performances. The appellants challenged these conditions, arguing that they were arbitrary and violated their fundamental rights under Article 14 and Article 19(1)(g) of the Constitution of India.

The appellants contended that the numerical and gender-based restrictions on performers were unreasonable and had no basis in the Maharashtra Police Act, 1951, or the Rules, 1960. They argued that such restrictions infringed upon the rights of both the performers and the organizers of the entertainment.

Timeline

Course of Proceedings

The appellants initially challenged the conditions imposed by the Commissioner of Police in the High Court of Bombay. The High Court, however, upheld the Commissioner’s order, stating that the power to impose such conditions was derived from the Maharashtra Police Act, 1951, and the rules framed under it. The High Court also held that the Commissioner had the authority to issue conditions essential for the operation of orchestra bars. Consequently, the High Court dismissed the writ petitions, affirming the Commissioner’s power to impose the challenged conditions.

Aggrieved by the High Court’s decision, the appellants filed Special Leave Petitions (SLP) in the Supreme Court, leading to the present appeals.

Legal Framework

The case primarily involves the interpretation of the Maharashtra Police Act, 1951, and the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960. Key provisions include:

• Section 2(9) of the Maharashtra Police Act, 1951: Defines a “place of public amusement” as “any place where music, singing dancing, or any diversion or game, or the means of carrying on the same, is provided and to which the public are admitted either on payment of money or with the intention that money may be collected from those admitted…”
• Section 2(10) of the Maharashtra Police Act, 1951: Defines a “place of public entertainment” as “a lodging-house, boarding and lodging-house or residential hotel, and includes any eating-house in which any kind of liquor or intoxicating drug is supplied…to the public for consumption in or near such place.”
• Section 33(1)(w)(i) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for “licensing or controlling places of public amusement or entertainment.”
• Section 33(1)(w)(ii) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for “prohibiting the keeping of places of public amusement or entertainment or assembly, in order to prevent obstruction, inconvenience, annoyance, risk, danger or damage to the residents or passengers in the vicinity.”
• Section 33(1)(wa)(i) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for “licensing or controlling in the interest of public order decency or morality or in the interest of the general public…the musical, dancing, mimetic or theatrical or other performances for public amusement…”
• Section 33(1)(wa)(ii) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for “regulating in the interest of public order, decency or morality or in the interest of the general public, the employment of artists and the conduct of the artists and the audience at such performances.”
• Section 33(2) of the Maharashtra Police Act, 1951: Specifies that the power to make, alter, or rescind rules under Section 33(1) is subject to the control or previous sanction of the State Government.
• Section 33(6) of the Maharashtra Police Act, 1951: Mandates previous publication of any alteration in the rules.
• Section 162(1) of the Maharashtra Police Act, 1951: States that licenses and written permissions must specify the conditions and restrictions under which they are granted.
• Rule 108A of the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960: Deals with conditions for granting licenses but does not include restrictions on the number or gender of artists.

Additionally, the case is framed within the context of fundamental rights guaranteed by the Constitution of India, specifically:

• Article 14 of the Constitution of India: Guarantees equality before the law and equal protection of the laws.
• Article 19(1)(g) of the Constitution of India: Guarantees the right to practice any profession, or to carry on any occupation, trade, or business.
• Article 15(3) of the Constitution of India: Allows the state to make special provisions for women and children.

Arguments

Appellants’ Arguments:

• The appellants argued that the conditions restricting the number of artists to eight, with a strict gender division of four males and four females, violate Article 14 and Article 19(1)(g) of the Constitution. They contended that such restrictions are arbitrary and unreasonable.
• They submitted that the restrictions on the number and gender of performers have no rational basis and do not serve any legitimate purpose. They argued that the composition of a band or orchestra should be determined by the artistic needs of the performance, not by rigid numerical and gender-based rules.
• The appellants pointed out that the restrictions could prevent all-male or all-female bands from performing, which is a violation of their right to carry on their business. They argued that such restrictions are not saved by any of the reasonable restrictions clauses under Article 19(6).
• They contended that the licensing and controlling powers of the Commissioner of Police must be exercised through rules or orders, not by executive instructions. They argued that the conditions imposed by the Commissioner were not based on any specific rule or law.
• The appellants relied on the Supreme Court’s decisions in State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors. [(2013) 8 SCC 519] and Indian Hotel and Restaurant Association & Anr. v. State of Maharashtra & Ors. [(2019) 3 SCC 429], arguing that these cases established that dancing in bars is not “res extra commercium” (outside the realm of commerce) and that restrictions on such activities must be reasonable and non-discriminatory.
• They argued that the restrictions are not justified by the state’s claim of protecting public morality or preventing exploitation of women, as these arguments were rejected in previous cases.
• The appellants submitted that the restrictions are excessive and disproportionate, as they limit the business and occupation of performers without any rational basis.

Respondents’ Arguments:

• The respondents argued that the restrictions are necessary to protect women employees/artists and are in the interest of the general public. They contended that orchestra bars are a new form of dance bars that exploit women by making them do obscene dance moves and engage in sexual activities with customers.
• They argued that the conditions do not violate Article 14, as they apply equally to all 254 establishments. They stated that the restrictions are a reasonable classification based on intelligible differentia, with a reasonable nexus to the object of protecting women and preventing their exploitation.
• The respondents submitted that the restrictions are justified under Article 15(3), which allows the state to make special provisions for women.
• They contended that the restrictions are reasonable under Article 19(6), as they are in the interests of the general public and are essential to protect the dignity of women and prevent their exploitation.
• The respondents argued that the orchestra performances in hotel bars are different from those in auditoriums or other venues, as they are ancillary to the alcohol served there. They claimed that these establishments misuse places of public amusement as contact points for prostitution.
• The respondents referred to the Supreme Court’s order dated 02.03.2016 in Writ Petition (C) No. 793/2014, which approved the dimensions of the stage and the overall number of artists, as evidence of the reasonableness of the restrictions.
• The respondents relied on the judgment in Karnataka Live Band Restaurants Association v. State of Karnataka [(2018) 4 SCC 372], which recognized the need for regulations of the kind challenged in the present case.

[TABLE] of Submissions

Innovativeness of the argument: The appellants innovatively argued that the gender cap imposed by the state was not only discriminatory but also stifled the artistic freedom of performers and the business interests of the organizers. They successfully highlighted that there was no rational basis for restricting the gender composition of orchestra bands, emphasizing that such decisions should be based on artistic considerations rather than arbitrary rules.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for adjudication:

1. Whether the condition imposing a gender cap on 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?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors. [(2013) 8 SCC 519] – This case, referred to as IHRA-I, dealt with the validity of Sections 33A and 33B of the Maharashtra Police Act, 1951, which prohibited dancing in bars. The Supreme Court held that the provisions were discriminatory and violated Articles 14 and 19(1)(g) of the Constitution. The court rejected the state’s arguments that the ban was necessary to protect public morals and women from exploitation.
• Indian Hotel and Restaurant Association & Anr. v. State of Maharashtra & Ors. [(2019) 3 SCC 429] – This case, referred to as IHRA-III, involved a challenge to the Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working therein) Act, 2016. The Supreme Court struck down several provisions of the Act, holding them to be violative of Articles 14 and 19(1)(g) of the Constitution. The court reiterated its position that dancing in bars is not “res extra commercium” and that restrictions must be reasonable and non-discriminatory.
• State of Punjab v. Devans Modern Breweries Ltd & Anr [(2004) 11 SCC 26]– The Court in Devans observed that dealing in a commodity which is governed by a statute cannot be said to be inherently noxious and pernicious.
• Bijoe Emmanuel & Ors. v. State of Kerala & Ors. [(1986) 3 SCC 615] – This case dealt with the issue of fundamental rights and executive instructions. The court held that executive instructions cannot curtail fundamental rights.
• Union of India v. Naveen Jindal [(2004) 2 SCC 510] – This case also dealt with the issue of fundamental rights and executive instructions. The court held that executive instructions are not law within the meaning of Article 13(3)(a) and for the purpose of Article 19(6).
• Karnataka Live Band Restaurants Association v. State of Karnataka [(2018) 4 SCC 372] – This case involved a challenge to the requirement of obtaining a license for a live band. The Supreme Court held that the requirement was reasonable.
• Anuj Garg & Ors. v. Hotel Association of India & Ors. [(2008) 3 SCC 1] – This case examined restrictions on women’s employment and emphasized that measures claiming to protect women should not end up victimizing them.
• Joseph Shine v. Union of India [(2019) 3 SCC 39] – This case highlighted the societal expectations and limitations imposed on women.
• C.B. Muthamma v. Union of India [(1979) 4 SCC 260] – This case recognized the unfairness and discrimination apparent in a service rule that required a woman official to seek permission before getting married.

Legal Provisions:

• Section 2(9) of the Maharashtra Police Act, 1951: Defines a “place of public amusement.”
• Section 2(10) of the Maharashtra Police Act, 1951: Defines a “place of public entertainment.”
• Section 33(1)(w)(i) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for licensing or controlling places of public amusement.
• Section 33(1)(w)(ii) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for prohibiting the keeping of places of public amusement.
• Section 33(1)(wa)(i) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for licensing or controlling performances for public amusement.
• Section 33(1)(wa)(ii) of the Maharashtra Police Act, 1951: Empowers the Commissioner to make rules for regulating the employment of artists.
• Section 33(2) of the Maharashtra Police Act, 1951: Specifies that the power to make, alter, or rescind rules under Section 33(1) is subject to the control or previous sanction of the State Government.
• Section 33(6) of the Maharashtra Police Act, 1951: Mandates previous publication of any alteration in the rules.
• Section 162(1) of the Maharashtra Police Act, 1951: States that licenses and written permissions must specify the conditions and restrictions under which they are granted.
• Rule 108A of the Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rules, 1960: Deals with conditions for granting licenses but does not include restrictions on the number or gender of artists.
• Article 14 of the Constitution of India: Guarantees equality before the law.
• Article 19(1)(g) of the Constitution of India: Guarantees the right to practice any profession.
• Article 15(3) of the Constitution of India: Allows the state to make special provisions for women and children.

[TABLE] of Authorities and their treatment by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied heavily on State of Maharashtra & Anr. v. Indian Hotel and Restaurant Association & Ors. [(2013) 8 SCC 519]* and Indian Hotel and Restaurant Association & Anr. v. State of Maharashtra & Ors. [(2019) 3 SCC 429]*, noting that the arguments made by the state in those cases were similar to the ones made in the present case. The Court emphasized that these judgments established that a total ban on dancing in bars is discriminatory and that restrictions must be reasonable and non-discriminatory.
• The Court cited State of Punjab v. Devans Modern Breweries Ltd & Anr [(2004) 11 SCC 26] in the context of the argument that the regulations impugned were essential, having regard to public morals.
• The Court cited Bijoe Emmanuel & Ors. v. State of Kerala & Ors. [(1986) 3 SCC 615]* and Union of India v. Naveen Jindal [(2004) 2 SCC 510]* to emphasize that executive instructions cannot curtail fundamental rights.
• The Court distinguished Karnataka Live Band Restaurants Association v. State of Karnataka [(2018) 4 SCC 372]*, noting that it was not relevant to the issue of gender-based restrictions on performers.
• The Court cited Anuj Garg & Ors. v. Hotel Association of India & Ors. [(2008) 3 SCC 1]*, Joseph Shine v. Union of India [(2019) 3 SCC 39]*, and C.B. Muthamma v. Union of India [(1979) 4 SCC 260]* to emphasize that measures claiming to protect women should not end up victimizing them and that societal expectations and limitations imposed on women should be challenged.

The Court’s final decision:

The Supreme Court allowed the appeals and set aside the impugned orders of the Bombay High Court. The Court held that the condition imposing a gender cap on the number of performers in orchestra bands is void. The Court found that the restrictions were discriminatory, arbitrary, and violated Article 14 and Article 19(1)(g) of the Constitution. The Court held that the state’s arguments for protecting women and public morals were previously rejected in similar cases and were not independently justified in this case.

The Court emphasized that the state’s regulatory power must be exercised reasonably and cannot infringe upon fundamental rights. The Court also noted that the state had not established any rational basis for the gender cap, and that such restrictions would prevent all-male or all-female bands from performing, which is an infringement on their right to carry on their business.

Conclusion

The Supreme Court’s judgment in Hotel Priya, A Proprietorship vs. State of Maharashtra & Ors. is a significant decision that reinforces the principles of equality and non-discrimination. The Court’s decision to strike down the gender cap on orchestra performers in Maharashtra bars is a victory for gender equality and artistic freedom. The judgment highlights the importance of protecting fundamental rights and ensuring that state regulations are reasonable and non-discriminatory.

Key takeaways from the judgment:

• Gender-based restrictions are unconstitutional: The judgment establishes that arbitrary gender caps imposed by the state are discriminatory and violate fundamental rights.
• Artistic freedom is protected: The Court recognized that the composition of a band or orchestra should be determined by artistic needs, not by rigid numerical and gender-based rules.
• State regulations must be reasonable: The judgment emphasizes that state regulations must be reasonable and have a rational basis, and cannot infringe upon fundamental rights.
• Executive instructions cannot curtail fundamental rights: The Court reiterated that executive instructions cannot curtail fundamental rights and must be based on specific rules or laws.
• Rejection of paternalistic arguments: The Court rejected the state’s paternalistic arguments for protecting women, noting that such arguments were previously rejected in similar cases.
• Focus on empowerment: The judgment highlights that measures claiming to protect women should not end up victimizing them and that empowerment would be a more tenable approach.

Impact of the judgment:

• Legal Impact: The judgment sets a precedent for future cases involving gender-based restrictions and state regulations in the entertainment industry. It reinforces the importance of non-discrimination and protecting fundamental rights.
• Societal Impact: The judgment promotes gender equality and challenges societal norms that limit the freedom of women. It empowers artists and performers by ensuring that they are not subjected to arbitrary and discriminatory restrictions.
• Economic Impact: The judgment allows orchestra bars and other entertainment establishments to operate without unreasonable restrictions, which can have a positive impact on the entertainment industry and the livelihoods of performers.

Future Implications:

• The judgment is likely to have implications for similar restrictions imposed by other states or local authorities. It sets a precedent that such restrictions are unconstitutional and should be struck down.
• The judgment reinforces the principle that the state cannot use public morality or the protection of women as a pretext for imposing unreasonable restrictions that violate fundamental rights.
• The judgment encourages a more progressive and inclusive approach to regulating the entertainment industry, focusing on empowerment and equality rather than paternalistic restrictions.

In conclusion, the Supreme Court’s judgment in Hotel Priya, A Proprietorship vs. State of Maharashtra & Ors. is a landmark decision that upholds the principles of equality, non-discrimination, and artistic freedom. It serves as a reminder that state regulations must be reasonable, non-arbitrary, and consistent with the fundamental rights guaranteed by the Constitution.

Flowchart of the Case

Ratio Table