The court held that the condition imposing a gender cap on the number of performers in orchestra performances is void as it transgresses Article 15(1) and Article 19(1)(g) of the Constitution of India. The court emphasized the need to scrutinize closely whether impugned practices or rules are rooted in historical prejudice, gender stereotypes, and paternalism.

JUDGMENT

S. RAVINDRA BHAT, J.

1. Leave granted. These appeals arise from a judgment of the High Court of Bombay (and an order which followed it subsequently)¹ [Dated 6th May 2011 in W.P. No. 7962/2010 and connected cases; as well as the judgment and order dated 19.12.2012 in W.P. No. 2883/2012, which had followed the decision in the judgment dated 6th May 2012] which upheld the conditions imposed under order dated 12.09.2009.

Summary of Facts

2. The appellants are either owners or are operating restaurants and bars with the requisite licenses/permissions. Orchestra performances are a common feature in their premises. They, hence, go by the appellation “Orchestra Bars.” For this feature, they are required to secure Premises and Performance licenses under Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 (hereafter “Rules 1960”) framed under the Maharashtra Police Act, 1951 (hereafter “Act 1951”). The Commissioner of Police, Brihan Mumbai, exercising powers under Section 33(1) (w)(i) and (w)(ii), Section 162(1) of Act, 1951 read with Rule 108A, 109, 118, 207 and 209 of the Rules, 1960, by orders dated 12.09.2009 in additional to the existing conditions mentioned in the Premises License, added several conditions. Certain conditions were challenged by the petitioners in W.P No. 7962/2010 and connected matters. However, at the stage of hearing, the challenge was confined to the following conditions:

(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).

3. Before the High Court, the appellants had 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.

4. The High Court repelled the challenge to the conditions imposed by the Commissioner, holding that the power to impose them was traceable to provisions of the Act, 1951 and rules framed under it. It was also held that the commissioner was granted liberty to issue such conditions as were essential, for the operation of the orchestra bars. The High Court, therefore, rejected the writ petitions, holding that the Commissioner acted well within the power to impose such conditions.

Submissions of the Parties

5. Mr. Prasenjit Keswani and Mr. Manoj K. Mishra, learned counsel for the appellants submitted that the impugned conditions restricting the establishments to engage only eight artists and further, strictly, four male and four female artistes, are violative of Article 14 and Article 19(1)(g) of the Constitution. Counsel argued that the restriction on the number with a further restriction on gender of the performers in an orchestral combination is restrictive of the performers’ right as well as the right of the organisers, i.e. the bar or owners of the place of entertainment. If there are allmale bands orchestras or all-female bands or orchestras or any of them containing different permutations, the numerical restriction will have the impact of altogether prohibiting the participation of such bands. This would be completely unreasonable and would violate Article 19(1)(g). It is pointed out that none of the reasonable restrictions clauses under Article 19(6) would be attracted to save such condition.

6. The Appellants submitted that the conditions have no rationale with the purported object sought to be achieved. It is pointed out that an artistic performance such as orchestra, or single band performance can have different permutations and combinations with respect to the number and gender of the performers. The composition of performers, is entirely on how the band or the group wishes to organize its business. This would depend on what is played, how