This article has been written by Mohona Chowdhury, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho and has been edited by Oishika Banerji (Team Lawsikho).
It has been published by Rachit Garg.
Table of Contents
Indian legal, socio-political, and socio-economic stratification, followed by the differential treatment meted out to the women and sheer biases in the garb of protection to them, isn’t new to us. We have seen a plethora of cases brought before the Hon’ble Supreme Court time and again that echoed the gender inequality deeply embedded in our society, which tells us the colonial hangover of gender discrimination is still not over. Cases like C.B Muthamma, Nargesh Mirza are some cruel reminders of the invisible intangible “Glass ceiling” that obstructs women from their daily avocations and pursuits by paving the way of intersectional divisions. The blatant violation of fundamental rights in the name of reasonable classification has indeed become commonplace in India. Hotel Priya vs. State of Maharashtra (2022) is one of those important cases which, despite the ambiguities in its judgement, stands out for its indisputable significance. This article discusses the same through the lenses of legal analysis.
Primary details of the case
|Case No.||W.P. No. 7962/2010 and connected cases|
|Jurisdiction||SUPREME COURT OF INDIA|
|Case decided on||February 18, 2022|
|Judges||K.M. JOSEPH; S. RAVINDRA BHAT, JJ.|
|Legal provisions involved||Constitution of India, 1950 – Article 15 (1) and Article 19 (1) (g) , Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960|
Facts of the case
The case revolves around the issue of imposition of a gender cap on a number of performers in Orchestra Bars. The appeal of this case stems from a judgement of the High Court of Bombay (and an order which followed it subsequently), which upheld the conditions imposed under the order dated 12.09.2009.
The material facts of the case were as follows:
- The appellants, with the requisite licences and permissions, were either owning or operating the restaurants and bars in Mumbai. Orchestra performances were a common feature on these premises. Hence, they go by the appellation “Orchestra Bars”.
- To run an orchestra bar, the owners of the bars were required to obtain the license and permission for the same under Licencing and Performance for Public Amusement, including Cabaret Performance, Melas and Tamashas Rule, 1960. (hereafter “Rules, 1960”). The police commissioner has the discretion to exercise his powers and to impose conditions under this rule. Petitioners challenged two of these conditions, which are:
- The licensee is permitted to keep only four female singers or artists, and four male singers or artists present on the permitted stage.
- A maximum of eight artists are permitted to be present on the stage.
Prior to the appeal, when the case was presented before the Bombay High Court, contentions were made against the arbitrary imposition of discriminatory conditions violative of Articles 14 and 19 (1)(g) of the Constitution of India under the Mumbai Police Act, 1951. But these contentions were rejected, and the challenge against the draconian principles of the said Act was also discarded by the Hon’ble High Court, and it was held that the Commissioner was at liberty to issue such conditions as were essential for the operation of the orchestra bars and he acted well within the scope of his powers.
After the rejection of the writ petition, the appellants brought the case before the Hon’ble Supreme Court with the same contentions of unconstitutionality of the conditions imposed under the Mumbai Police Act. Although the alarming questions involved in this case weren’t addressed by the Bombay High Court, the Supreme Court took an unprecedented stand on it and reversed the order of the Bombay High Court.
Contention of the parties
Arguments by the appellants
- Pleas submitted by Mr Prasenjit Keswani and Mr Manoj K. Mishra, the learned counsels appearing on behalf of the appellants, questioned the legality of the conditions laid out in the Mumbai Police Act, 1951. The imposition of restraints and restricting the number of performers coupled with the restriction on the gender of the performers in the orchestra bars is violative of the basic fundamental rights. The permutation and combinations of bands differ from place to place. There are all male bands, and then there are all female bands too. This numerical restriction put forth by the Mumbai police and limiting it to four males and four females will have the impact of altogether prohibiting the participation of such bands.
- The diversification in the composition of the orchestra bands is dependent upon the wishes of the organisers themselves. They are at liberty to form their bands as per the convenience of the business. There’s no rationale in the rigid numerical division of equal gender participation as it abridges the rights and liberty of the performers. Counsels further extended their argument by the inclusion of transgender people in their pleas, as these conditions are discriminatory towards transgender performers as well. However, restricting the overall number of performers to eight might be left indisputable. Further, the imposition of a gender cap is a sheer violation of fundamental rights, and neither can be called a reasonable classification.
- The appellants further submitted that these arbitrary conditions, notwithstanding the fact that it got upheld by the High Court, continue to pose a serious threat to the larger interests of public mortality and are, therefore, unreasonable in every aspect.
Arguments by the respondents
- The arguments presented by the learned counsels from the respondents’ sides reflect a different perspective altogether. Mr Sachin Patil, learned counsel appearing on behalf of the respondents, stated that the history of the legislation establishes the fact that orchestra bars are no different from dance bars. The same women who were employed in these dance bars got employed in the orchestra bars as well. These bars are exploitative in nature as they merely exploit, humiliate and objectify women by making them perform obscene dance moves and, at times, engage in sexual activities with their customers. The condition of restricting the number of women performers to four is in accordance with Article 15 (3) and has been stipulated for the protection of women employees/artists.
- It was further submitted by the respondents that out of 254 establishments where orchestra shows were held, only three of them raised objections against the conditions, and they already have some criminal records in their names as well. It was also stated that not a single performer/artist challenged these conditions.
- Counsels also stated that the impugned conditions aren’t violative of Article 14 as it’s clearly based on the intelligible differentia. The contentions of the appellants that these conditions failed the test of reasonable classification were also denied by the respondents. They stated that to violate Article 14, two conditions must be satisfied:
- That the aggrieved person has been treated differently from others and also from similarly situated persons and
- Such treatment has to be meted out without any rational basis or justification
The impugned conditions were already applicable to all 254 establishments, and equal numerical divisions were laid down for every one of them. It is not the case that fewer women have been permitted or vice versa. Hence, it’s not against the reasonable classification.
- It was contended by the respondents that the impugned conditions aren’t violative of Article 19 either, as the conditions imposed are reasonable restrictions which intend to protect the dignity of women and prevent their exploitation.
Observation of the Court
- While passing the verdict on this case, the Apex Court heavily relied on the precedents. The Hon’ble Bench also took earlier litigation involving women’s participation in Mumbai institutions into consideration prior to diving into the current dispute.
“This court is no new to problems involving bans and restrictions on women’s participation in performances in Maharashtra establishments,” it noted.
- The Court quashed all the arguments put forth by the respondents and also remarked that the gender cap imposed arbitrarily in the name of reasonable classification and protection of women appeared to be the outcome of a stereotyped preconceived perception that women who performed in bars and institutions belonged to a “particular class of society,”.
- The Hon’ble Court also made an important observation that these impugned guidelines/conditions aren’t aiming to protect the women from exploitation rather, it’s exploiting the women more by unreasonably making these numerical restrictions.
“We do not intend to further the rhetoric of empty rights. Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard, the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging proportionality should be a standard capable of being called reasonable in a modern democratic society.” SC remarked.
- The Court also held that the conditions which impose a gender cap as to the number of women or men who can perform in orchestras and bands under the Rules, 1960 provision, is null and void. While the overall limit of performers, i.e. eight, was held as valid.
- The Court further clarified that if any performance was of a vulgar nature that promotes obscenity, it would be punishable under Section 294 of the Indian Penal Code, 1860, and the bar which permitted the obscene will lose the licence.
As a result, the Court granted the appeal and overturned the Bombay High Court’s decision.
Critical analysis of the case
Nobody is entitled to absolute freedom. In fact, all of our fundamental rights are subject to certain restrictions. Freedom of profession, trade or business is undoubtedly the right guaranteed by Article 19(1(g) of the Constitution of India, but again, it comes with certain “reasonable restrictions”. We tend to neglect the term reasonable while imposing restrictions, which eventually jeopardises our rights and leads to arbitrariness. It mostly happens when the people having the power to exercise their authority misuse that power and take undue advantage of it.
In this case, the Apex Court addressed the unreasonable restrictions of the Mumbai Police, which is indeed a salutary decision, yet the verdict gives rise to some ambiguities and questions as far as the transgression of Article 15(1) is concerned. Undoubtedly the gender cap is discriminatory in nature and as stated by the Court “Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society”
Although the restriction is imposed on the basis of gender, but it isn’t indeed a direct discrimination on the basis of gender since what it prescribes is an equal number of men and women in the context of an overall cap of eight performers. The Hon’ble Supreme Court could have clarified those instances where the all-female bands of all male bands perform in these orchestra bars.
The Supreme Court was required to demonstrate the clear cut demarcation between direct and intersectional discrimination. On the face of it, the division of performers is symmetrical but indeed it’ll have an asymmetrical impact on women which will be an indirect discrimination. The judgement is indeed correct and applaudable but in my view, it suffers from a conceptual confusion for not defining the fine line that exists between the direct and indirect discrimination. Had it been articulated in the verdict, it would’ve indeed opened a new door to the still-nascent Indian Jurisprudence on Indirect discrimination.
The glass ceiling and all the silent battles women fight every day to secure the opportunities which they’re entitled to aren’t easy to overcome. Time and again, they fall prey to such inequalities because no matter what we have in our Constitution or in the Statutory provisions, people will continue to neglect it by putting up the wall that separates women from their freedom, especially in employment opportunities.
The judiciary has brought a lot of radical changes in the Indian legal system through historic cases and judgements. Cases like Sakshi vs Union of India (2004) ( which focused on the violence and sexual assault against women) and Joseph Shine vs Union of India (2018) (which dealt with the decriminalisation of adultery) have had a deep impact by making society reevaluate their norms and values which have always been parochial and regressive towards women. Yet, we can’t absolutely deny the fact that there’s still much left to do. Through the dynamic evolution of Jurisprudence and salutary verdicts like this, the Judiciary can restore our faith in poetic justice only if we can strive to bring the required changes in the social mindset, with the aim to achieve the ends and to see systemic improvements.
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