[Orchestra Bars license] State has duty to create conducive work atmosphere for women: Supreme Court strikes down gender cap

The Supreme Court on Friday observed that in cases where women’s safety at workplace is a concern, the State is duty-bound to create an atmosphere conducive to their employment, rather than thwart and stifle their choice [Hotel Priya, A Proprietorship v State of Maharashtra]..A Bench of Justices KM Joseph and Ravindra Bhat, made these observations, while striking down a license condition that imposed a gender cap on the number of people who can be on stage in orchestra bars. As per the condition imposed by the Commissioner of Police for providing licence to certain orchestra bars, only four women artists and four male artists (total of 8 artists) were permitted to be on stage."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," the Court said while striking down the license condition..- Appellants were owners of orchestra bars who were required to seek licences for the same subject to certain conditions;- The Commissioner of Police ordered additional conditions to the already existing including a gender cap on artists;- This cap was challenged for being violative of Articles Article 14 and Article 19(1)(g). But the condition was upheld by the High Court;- The Supreme Court set aside the High Court order while holding that the conditions directly transgressed Article 15 (1) and Article 19 (1) (g);- The court opined that such measures operated to limit or exclude altogether women’s choice of their avocation..The appeal arose from a judgment of the Bombay High Court where the challenge to the conditions was repelled, and the Court held that the power to impose such conditions was traceable to the provisions of the Maharashtra Police Act, 1951 and rules framed under it..The appellants before the Supreme Court submitted that the conditions were violative of Article 14 and Article 19(1)(g) of the Constitution.They also stated that the condition had no rationale, since a strict and rigid numerical division of equal gender participation in the orchestra band served no basis. In fact, they also emphasised that there may be participation of transgender persons.The appellants also opined that the Commissioner’s powers to impose conditions could not curtail fundamental rights since the rules continue to be executive instructions and were not law within the meaning of Article 13 (2)(a)..However, the respondents urged the Court to consider the history of the legislation that showed orchestra bars were a new form of dance bars where the same women who were previously employed in dance bars, now performed.“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 respondents said, defending their stand..It was their submission that these establishments under the pretext of artists performing for the orchestra, in reality acquire waitresses or “bar girls” known to indulge in explicit activities with the customers within the premises of the establishment. Many times, they also go away with customers, it was stated..The Bench, before delving into the present controversy, discussed previous litigation relating to women’s participation in Mumbai establishments.“This court is no stranger to controversies relating to prohibition, and restriction in participation of women from performances in establishments in Maharashtra,” it stated..On examining precedents as well as statutory provisions, the Court noted that the gender cap imposed appeared to be the product of a stereotypical view that women who performed in bars and establishments, like the appellants, belonged to a “certain class of society”.It was the Court opinion that the respondents justification to sustain the restriction to protect women “lay it open to the charge of entombing their aspirations.”“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 Supreme Court observed..It was thus, the Bench’s conclusion that the restriction directly transgressed Article 15 (1) and Article 19 (1) (g), the latter provision both in its effect to the performers as well as the license owners.Hence, the Court allowed the appeal and set aside the judgment of the Bombay High Court."It is hereby declared that 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 and other allied provisions, is void. 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 ordered..[Read Judgment]