HOTEL PRIYA, A PROPRIETORSHIP versus STATE OF MAHARASHTRA & ORS. on 18 February 2022

322

SUPREME COURT REPORTS

[2022] 16 S.C.R.

AHOTEL PRIYA, A PROPRIETORSHIP

v.

STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 1459 of 2022)

BFEBRUARY 18, 2022

[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]

Licensing and Performance for Public Amusement includingCabaret Performance, Melas and Tamashas Rules, 1960 – rr.108,109, 120, 122 and 123 – Constitution of India – Article 15(1),C19(1)(g) – Impugned conditions inter alia imposed a gender cap asto the number of women or men, who can perform in orchestrasand bands in licensed bars – Challenge to – Conditions upheld byHigh Court – On appeal, held: Impugned gender cap is the productof stereotypical view that women who perform in bars andDestablishments, like the appellants, belong to a certain class ofsociety – Such measures that claim to protect the women, in realityare destructive of Art.15 (3) – This restriction directly transgressesArt. 15(1) and Art. 19 (1) (g)- the latter provision both in its effectto the performers as well as the license owners – Condition imposinga gender cap as to the number of women or men, who can performEin orchestras and bands, in bars licensed under the 1960 Rulesand other allied provisions, is void – However, the regulation onthe overall number of performers, or even the dimensions of a stage(on which a performance can take place) cannot be characterizedas a restriction; they can fall within the legitimate domain of theFauthority of the commissioner or the government which formulatessuch conditions – Thus, while the overall limit of performers in anygiven performance cannot exceed eight, the composition (i.e., allfemale, majority female or male, or vice versa) can be of anycombination – Impugned judgement set aside – Maharashtra PoliceAct, 1951 – ss.2(9), 2(10), 33(1), 33(2), 162(1) & 162(2).G

Allowing the appeals, the Court

HELD: 1.1 The arguments advanced in the present case,that the restrictions are necessary in the public interest, topromote the welfare of women, prevent human trafficking in H

women, and their exploitation, and that the restrictions arenecessary in the interest of public morals, are well worn, andhave been decisively rejected. Apart from regurgitating the samerejected submissions, the state has not justified, independently,how the gender-cap, as for an individual orchestra or band, isregulatory. The order of this court dated 02.03.2016 (in WritPetition (C) No. 793/2014) had recorded that the conditions couldlimit the size of the stage (where performances were to be held)to an area of 10 ft x 12 ft size “in restaurant area/permit room asper approved plan of the Excise Department for F.L.-III withnon-transparent partition between restaurant and permit roomarea.” The court was informed that the limit on the number ofperformers would be four. While an overall limit of the number ofperformers, which is eight in the present case, cannot beconsidered unreasonable, since the enclosure (120 sq feet) wouldalso include instrumentalists, that order did not have any occasionto consider the gender-cap for the troupe or band. [Paras 39,40][344-C-F]

State of Maharashtra & Anr. v. Indian Hotel andRestaurant Association & Ors. (IHRA-I) (2013) 8 SCC519 : [2013] 7 SCR 654; Indian Hotel and Indian Hoteland Restaurant Association v. State of Maharashtra(IHRA-II) (2015) 16 SCC 100; Restaurant Association& Anr. v. State of Maharashtra & Ors. (IHRA -III) (2019)3 SCC 429 : [2019] 1 SCR 371 – referred to.

1.2 The impugned gender-cap (i.e. four females and fourmales, in any performance) appears to be the product of astereotypical view that women who perform in bars andestablishments, like the appellants, belong to a certain class ofsociety. The justification provided by the respondents, to sustainthe restriction, in so far as they claim to protect the women, in theopinion of this court, lay it open to the charge of entombing theiraspirations. In case there were any real concern for the safety ofwomen, the state is under a duty - as highlighted by Anuj Garg, tocreate situations conducive to their working, to run that extramile to facilitate their employment, rather than to thwart it, andstifle their choice. Such measures – which claim protection, inreality are destructive of Article 15 (3) as they masquerade as ABC

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Aspecial provisions and operate to limit or exclude altogetherwomen’s choice of their avocation. [Paras 42, 46][345-A; 347-E-G]

Anuj Garg & Ors. v. Hotel Association of India & Ors.(2008) 3 SCC 1 : [2007] 12 SCR 991 – relied on.

B1.3 In the present case, the regulation on the overall numberof performers, or even the dimensions of a stage (on which aperformance can take place) cannot be characterized as arestriction; they can fall within the legitimate domain of theauthority of the commissioner or the government whichCformulates such conditions. In view of this court’s conclusion andfindings that the restriction is upon the gender, in the sense thatit seeks to cap the number of performers on the basis of gender.This restriction directly transgresses Article 15 (1) and Article19 (1) (g)- the latter provision both in its effect to the performersas well as the license owners. In view of these findings, this courtDis of the opinion that it is unnecessary to address the question asto whether the condition imposed- and held to be unenforceableand void, is “law”. As the authorities of this court have repeatedlyemphasized, whenever challenges arise, particularly based ongender, it is the task of the judges to scrutinize closely, whether,Eif and the extent to which the impugned practices or rules ornorms are rooted in historical prejudice, gender stereotypes andpaternalism. Such attitudes have no place in our society; recentdevelopments have highlighted areas hitherto consideredexclusive male “bastions” such as employment in the armedforces, are no longer so. Similarly, in the present case, this courtFholds that the gender cap imposed by the impugned condition isvoid. One hopes that the present judgment would still a lingeringand discordant note of a cymbal silenced long back, by previousjudgments of this court. The impugned judgment is set aside. Itis hereby declared that the condition imposing a gender cap as toGthe number of women or men, who can perform in orchestras andbands, in bars licensed under the Rules, 1960 and other alliedprovisions, is void. While the overall limit of performers in anygiven performance cannot exceed eight, the composition (i.e.,all female, majority female or male, or vice versa) can be of anycombination. The appeals are allowed, but with no order on costs.H[Paras 47-49][347-H; 348-A-F]

HOTEL PRIYA, A PROPRIETORSHIP v. STATE OFMAHARASHTRA & ORS.

Joseph Shine v. Union of India (2019) 3 SCC 39 :[2018] 11 SCR 765 – followed.

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Karnataka Live Band Restaurants Association v. Stateof Karnataka (2018) 4 SCC 372 : [2018] 1 SCR 533 –distinguished.

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C.B. Muthamma v. Union of India (1979) 4 SCC 260 :[1980] 1 SCR 668 – relied on.

Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)3 SCC 615 : [1986] 3 SCR 518; Union of India v.Naveen Jindal (2004) 2 SCC 510 : [2004] 1 SCR 1038;State of Punjab v. Devans Modern Breweries Ltd & Anr.(2004) 11 SCC 26 : [2003] 5 Suppl. SCR 930 – referredto.

C

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1459of 2022.

From the Judgment and Order dated 06.05.2011 of the High Courtof Judicature at Bombay in Writ Petition No. 7962 of 2010.

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With

Civil Appeal Nos. 1460 and 1461 of 2022.

Prasenjit Keswani, Satyajit Saha, Upmanyu Tewari, Mrs. V. D.Khanna, Manoj K. Mishra, Umesh Dubey, Prateek Som, Alok Pandey,Dr. Bheem Pratap Singh, Advs. for the Appellant.

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ASachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,Vivekanand Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

B1. Leave granted. These appeals arise from a judgment of theHigh Court of Bombay (and an order which followed it subsequently)[1]which upheld the conditions imposed under order dated 12.09.2009.

Summary of Facts

2. The appellants are either owners or are operating restaurantsCand bars with the requisite licenses/permissions. Orchestra performancesare a common feature in their premises. They, hence, go by the appellation“Orchestra Bars”. For this feature, they are required to secure Premisesand Performance licenses under Licensing and Performance for PublicAmusement including Cabaret Performance, Melas and Tamashas Rule,D1960 (hereafter “Rules, 1960”) framed under the Maharashtra PoliceAct, 1951 (hereafter “Act, 1951”). The Commissioner of Police, BrihanMumbai, 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 209of the Rules, 1960, by orders dated 12.09.2009 in additional to the existingconditions mentioned in the Premises License, added several conditions.ECertain conditions were challenged by the petitioners in W.P No. 7962/2010 and connected matters. However, at the stage of hearing, thechallenge 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 onFpermitted stage.

(2) Only eight artists are permitted to remain present on thepermitted stage (four male and four women).

3. Before the High Court, the appellants had contended thatidentification of particular number of artists or imposing any restrictionsGon the number of artists, whether male or female, has no bases either inAct, 1951 or Rules, 1960 and violates Article 14 and Article 19(1)(g) ofthe Constitution of India.

1 Dated 6th May 2011 in W.P. No. 7962/2010 and connected cases; as well as thejudgment and order dated 19.12.2012 in WP 2883/2012, which had followed the decisionHin the judgment dated 6[th] May 2012.

4. The High Court repelled the challenge to the conditions imposedby the Commissioner, holding that the power to impose them was traceableto provisions of the Act, 1951, and rules framed under it. It was also heldthat the commissioner was granted liberty to issue such conditions aswere essential, for the operation of the orchestra bars. The High Court,therefore, rejected the writ petitions, holding that the Commissioner actedwell within the power to impose such conditions.

Submissions of the Parties

Submissions of the Parties

5. Mr. Prasenjit Keswani and Mr. Manoj K. Mishra, learnedcounsel for the appellants submitted that the impugned conditionsrestricting the establishments to engage only eight artists and further,strictly, four male and four female artistes, are violative of Article 14 andArticle 19(1)(g) of the Constitution.Counsel argued that the restrictionon the number with a further restriction on gender of the performers inan orchestral combination is restrictive of the performers’ right as wellas the right of the organisers, i.e. the bar or owners of the place ofentertainment. If there are all-male bands orchestras or all-female bandsor orchestras or any of them containing different permutations, thenumerical restriction will have the impact of altogether prohibiting theparticipation of such bands. This would be completely unreasonable andwould violate Article 19(1)(g). It is pointed out that none of the reasonablerestrictions clauses under Article 19(6) would be attracted to save suchcondition.

6. The Appellants submitted that the conditions have no rationalewith the purported object sought to be achieved. It is pointed out that anartistic performance such as orchestra, or single band performance canhave different permutations and combinations with respect to the numberand gender of the performers. The composition of performers, is entirelyon how the band or the group wishes to organize its business. This woulddepend on what is played, how popularly or well received it is, and whichof the performers have popularity A strict and rigid numerical division ofequal gender participation in the orchestra band, serves no rational basis.Counsel argued that in a given situation, an item or piece can involve allmale performers, or all females, or few males and majority female, orvice versa. There may also be participation of transgender persons. Whilenot disputing that the overall limit of eight performers on stage at anygiven point of time is reasonable, the insistence that limits the number ofperformers of either gender is unreasonable and manifestly arbitrary.

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ALearned counsel submitted even a rule or provision of the plenaryenactment which contains such a condition cannot be justified and wouldbe struck down as arbitrary. It would also fail the test of classification.

7. Counsel urged that it is pernicious on the part of the licenseconditions governing an orchestra performance requiring restriction onBthe number or gender of the artists. The petitioners cite the decision ofthis court in State of Maharashtra & Anr. v. Indian Hotel andRestaurant Association & Ors.[2](hereafter (“IHRA-I”) and IndianHotel and Restaurant Association & Anr. v. State of Maharashtra& Ors. (hereafter “IHRA-III”)[3], and urge that this court in those decisionswhile rejecting the argument of public morals (banning dancing bars) byCthe state, also ruled that “dancing in bars could not be held to be res extra commercium.”

extra commercium.”

8. The appellants submit that under Sections 33(1)(w), (wa)(i)and (wa)(ii), the Commissioner of Police is empowered to make rules tolicense or control places of public amusement or entertainment and alsoDto frame rules with respect to matters relating to licensing or controllingin the interest of public order, decency, or morality or in the interest ofgeneral public, the musical, dancing, mimicry, or any other performancesfor public amusement. Those provisions also empower making rules toregulate in the interest of public order, decency, or morality or in theEinterest of general public the employment of artists and the conduct ofthe artists and audience at such performances. The Commissioner’spowers are not under challenge. The appellants however urge that onreading of those provisions, it is clear that the licensing and controllingcan onlybe through rules or orders. Even though the commissioner hasthe powers, such powers have to be exercised under Section 33(2)(ii)Fand Section 33(6). Under Section 33(2)(ii), the power of making, alteringor rescinding rules under clauses of Sub-section 1 [except for clause (a)and (c)] are subject to the previous sanction of that government; andunder Section 33(6)- a previous publication of the alteration in the rulesis mandated. Therefore, the licensing and controlling can only be achievedGby rules and not by executive instructions/decisions.

9. It is argued that the powers of the commissioners are governedby Rules 108, 108A, 109, 118, 120, 121, 122, Form-D and Form -E of theRules, 1960. The appellants argue that Rule 108-A of the Rules, 1960, - 2 (2013) 8 SCC 519.H3 (2019) 3 SCC 429.

does not include restrictions on the number of artistes or the gender ofsuch artistes who can be engaged by the establishments in the OrchestraPerformances. Further, that the conditions for grant of license as underSections 108A, 120 and 122, have already enacted the norms in publicinterest, to protect the dignity of women, public order, and public morals.This court in IHRA-I while considering these rules held that this statutoryregime was sufficient to safeguard the dignity of women. (Paras 127,128, 129, 130, 131, 132). It is also submitted that Section 162 of the Actdoes not empower the Commissioner to impose any conditions, it onlyenvisages that the license granted would specify the conditions andrestrictions subject to which the license has been granted.

10. Discussing Rule 109, the appellants submits that if the LicensingAuthority is allowed to construe that Rule 109 empowers theCommissioner to, in the exercise of her or his discretion, impose anytype of condition, such power would suffer from the vice of excessivedelegation. The rule cannot curtail the fundamental rights given underArticle 19(1)(a) and 19(1)(g), since the conditions imposed under thesaid Rule continue to be executive instructions, they cannot curtail theenjoyment of Fundamental Rights as executive instructions are not lawwithin the meaning of Article 13(3)(a) and for the purpose of Article19(6). Reliance is placed on the judgments of this court in BijoeEmmanuel & Ors. v. State of Kerala & Ors[4] and Union of India v.Naveen Jindal[5]. Hence, imposition of restriction on number of the artistsand their gender has no basis in law.

11. Attacking the reasoning advanced by the state to justifyimposition of the numerical restrictions that they are in the interests ofthe general public; subserve the larger interests of public morality, tendto protect women and to improve their working conditions so thatorchestra bars do not take advantage of the situation and exploit womenartists and waitresses, the appellants submit that the reasoning has nobasis in fact. Even though they were accepted by the High Court, byvirtue of this Court’s decision in IHRA-I, that reasoning is no longeracceptable. In IHRA-I, Sections 33A and 33B of the Act, 1951 whichhad completely banned dancing, in liquor bars, but permitted them inclubs and three starred hotels and higher establishments were in issue.This court held that such provisions are discriminatory and thus violates 4 (1986) 3 SCC 615.

5 (2004) 2 SCC 510.

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AArticle 14, and that the total ban on dance in liquor bars was not justifiedas a reasonable restriction under 19(6) of the Constitution. It is submittedthat the same logic would apply in the present case because the restrictionon the number of performers tends to keep out a number of performerswho might otherwise be entitled to join a band. It tends to regulate thebusiness and occupation of the performers and in that sense, they haveBto bear a disproportionate burden by ensuring that in all bars inMaharashtra, the bands do not have a certain number of performersbelonging to either gender. Hence, limiting the number of performers toa certain gender has no rational basis, is excessive, and thereforeunreasonable.C

12. Further, dealing with the argument of the state that therestrictions are necessary in the interest of protection of public moralityit was pointed out that the same judgements extensively deal with thisaspect. Additionally, that the standards of morality in a society changewith the passage of time, thus a particular activity treated as immoral atDone-time may not be so later. The court was dealing with danceperformance and held that dignified forms of dance are socially acceptableand nobody can take exception. Reliance was placed upon theobservations that a practice which may not be immoral by societalstandards cannot be thrusted upon the society as immoral by the statewith its own notion of morality and thereby exercise social control.EFurthermore, any legislation of this nature has to pass the muster ofconstitutional provisions as well in court. It is therefore argued that therestriction imposed by the condition in challenge cannot be justified onthe grounds that it seeks to prevent prohibited activity and is injurious topublic morals.F

13. Learned counsel relied heavily on the judgment in IHRA-IIIwhich had struck down the Prohibition of Obscene Dance in Hotels,Restaurants and Bar Rooms and Protection of Dignity of Women(working therein) Act, 2016 (Act of 2016). It was pointed out by counselthat the state’s argument to justify those provisions on the basis ofGintelligible differentia and that women who perform in such establishmentsbelong to deprived backgrounds and are vulnerable to trafficking or forcedinto bar dancing which they may not be otherwise inclined to was held tobe unjustified. It is submitted that likewise, the restrictions impugned inthe present case, do not in any manner further the Statement of Objectsand Reasons of the Police Act. Hardly any material was placed on theH

record to show how the numerical restriction furthered the case of thestate that public order is achieved.

14. Mr. Sachin Patil, arguing for the respondent, urged that thehistory of the legislation showed that orchestra bars are a new form ofdance bars where the same women who were previously employed inthe dance bars, now perform as orchestra artistes. These places exploitwomen by making them do obscene dance moves and also engage insexual activities with the customers. The condition of having only fourwomen has been made under Article 15(3) for safety of womenemployees/artistes and in the interest of general public.

15. It was contended that there are in all 254 establishments whereorchestral shows are held and only three of them (the present appellants)have challenged the impugned conditions. Several criminal cases havebeen filed against these three establishments. Further, counsel submitsthat the said conditions have not been challenged by a single artist orassociation of artists.

16. Next, the respondent submits that the impugned conditions donot violate Article 14. Article 14 permits reasonable classification aslong it is based upon intelligible differentia and such differentia hasreasonable nexus to the object sought to be achieved by the law, or theexecutive measure. Article 15(3) allows the state to make specialprovisions for women. To violate Article 14, two conditions have tosatisfied. Firstly, that the person aggrieved has been treated differentlyfrom others and also from the similarly situated persons; and secondly,such treatment has to be meted out without any rational basis and withoutjustification. In the present case, the conditions apply to all 254establishments. It is not the case that fewer number of women havebeen permitted or vice versa; all establishments have been permitted toengage the same number of women, in each performance. Therestrictions have only been applied to protect the interests of womenand prevent their exploitation. It is submitted that instrumentalists arebesides the artistes.

17. It is urged by the respondent that in the W.P. No. 793/2014,(filed by the Indian Hotels and Restaurants Associations of which theappellants are members) the petitioner-Association had, after detaileddeliberation accepted the conditions with respect to the number ofdancers. Reference is made to this court’s order dated 02.03.2016 in AB

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AWrit Petition (C) No. 793/2014. By that order, this Court approved thedimensions of the stage (10 ft x 12 ft) on which performances can beupheld, and the overall number of artistes.

18. It is urged that the orchestras that perform in other venueslike auditoriums, halls, grounds etc. are altogether different from theBkind of orchestras in hotel bar establishments like the appellants. In caseof the former the orchestras or theatrical programs are the sole eventsand members of the public attend them as audiences. In the hotel barestablishments like that of the appellants, orchestra performances areonly ancillary to the alcohol served there. Such programs are notprofessional like the public performances of orchestra or musical groups.CThese establishments under the pretext of artists performing for theorchestra actually require waitresses or bar girls who are known to indulgein explicit activities with the customers within the premises of theestablishment or who go away with customers. The profits generatedfrom such activities, induce the license holders to misuse such places ofDpublic amusement as contact points for prostitution. It was urged thatbetween 2009 and March 2013, in Mumbai, a total of 217 cases wereregistered under Section 294 IPC and 97 cases under Sections 3,4,5 ofthe Immoral Trafficking (Prevention) Act, (PITA) 1956.

19. The respondents submit that the said conditions are not inEviolation of Article 19(1)(g) as reasonable restrictions can be imposedunder Article 19(6) in the interests of the general public. Such restrictionsare also essential to protect the dignity of women and prevent theirexploitation; they are reasonable and saved, in addition, by Article 15 (3)of the Constitution of India.

F20. The respondent state urges that the later judgment inKarnataka Live Band Restaurants Association v. State of Karnataka[6]recognized the need for regulations, of the kind that have been challenged.Therefore, the present impugned conditions are reasonable.

Analysis and FindingsGI.Statutory provisions

21. By Section 2 (9) of Act, 1951 a “place of publicamusement”is defined as follows:

H6 (2018) 4 SCC 372.

Analysis

“place of public amusement” means any place where music,singing dancing, or any diversion or game, or the means ofcarrying on the same, is provided and to which the public areadmitted either on payment of money or with the intentionthat money may be collected from those admitted and includesa race course, circus, theatre, music hall, billiard room,bagatelle room, gymnasium, fencing school, swimming poolor dancing hall.

Section 2 (10) of Act, 1951 defines a “place of publicentertainment” as follows:

“place of public entertainment” means a lodging-house.boarding and lodging-house or residential hotel, and includesany eating- house in which any kind of liquor or intoxicatingdrug is supplied (such as a tavern, a wine shop, a beer shopor spirit, arrack, toddy, ganja, bhang or opium shop) to thepublic for consumption in or near such place.

Section 33 of Act, 1951 is the rule and regulation making power;it inter alia, reads as follows:

“Section 33. Power to make rules or regulations of trafficand for presentation of order in public place, etc.

(1) The Commissioner with respect to any of the mattersspecified in this sub section, the District Magistrate withrespect to any of the said matters (except those falling underClauses[(a), (b), (d). (db), (e), (g), (r), (t) and (u)]) thereofand the Superintendent of Police with respect to the mattersfalling under the clauses aforementioned read with Clause(y) to this sub-section], in areas under their respective chargesor any part thereof, may make, alter or rescind rules or ordersnot inconsistent with this Act for-…….

(w) (i) licensing or controlling places of public amusement orentertainment; (ii) prohibiting the keeping. of places of publicamusement or entertainment or assembly, in order to preventobstruction, inconvenience, annoyance, risk, danger ordamage to the residents or passengers in the vicinity;

…..

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334SUPREME COURT REPORTS

A(wa) (i) licensing or controlling 2[in the interest of publicorder decency or morality or in the interest of the generalpublic with such exceptions as may be specified, the musical,dancing, mimetic or theatrical or other performances forpublic amusement, including melas and tamashas; B(ii) regulating in the interest of public order, decency ormorality or in the interest of the general public, the employmentof artists and the conduct of the artists and the audience atsuch performances; Section 33(1) (2), Act, 1951 enables the making, alteration orCrescinding of rules; it inter alia, reads as follows:

“Section 33 (1)…..

(2) (i) The power of making, altering or rescinding rules underClauses (a), (b) and (c) of sub-section (1) shall be subject tothe control of the State Government.D(ii) The power of making, altering, or rescinding rules underthe remaining clauses of sub- section (1) shall be subject tothe previous sanction of that Government.”

22. The power to make, alter or rescind rules (under Section 33(2))

is circumscribed by the condition in Section 33 (6) of previous publicationEin the concerned locality. Section 162 (1) enacts those licenses and writtenpermissions have to specify conditions, etc; Section 162 (2) enablesrevocation of licenses or written permissions.

23. As precondition for the grant of the licences required forfunctioning of the said premises, applicants have to fulfil several conditionsFsuch as[7]:

(i) Any application for premises licence shall be accompanied bythe site plan indicating inter alia the distance of the site from anyreligious, educational institution or hospital.

G(ii) The distance between the proposed place of amusement andthe religious place or hospital or educational institution shall bemore than 75 m.

(iii) The proposed place of amusement shall not have been locatedin the congested and thickly populated area.

H7 Rules 108, 109 and 120 of the 1960 Rules.

(iv) The proposed site must be located on a road having width ofmore than 10 m.

(v) The owners/partners of the proposed place of amusementmust not have been arrested or detained for anti-social or anysuch activities or convicted for any such offences.

(vi) The distance between two machines which are to be installedin the video parlour shall be reflected in the plan.

(vii) No similar place of public amusement exists within a radiusof 75 m.

(viii) The conditions mentioned in the licence shall be observedthroughout the period for which the licence is granted and if thereis a breach of any one of the conditions, the licence is likely to becancelled after following the usual procedure.

24. The above provisions are supplemented with the regulationsprotecting the dignity of women. The provisions of the Bombay PoliceAct, 1951 and more particularly Section 33 (1) (w) empowers the licensingauthority to frame rules.

25. Rules 122 and 123 of the Amusement Rules, 1960 also prescriberestrictive conditions for holding performances. These restrictions includeany profanity or impropriety of language; any indecency of dress, dance,movement or gesture; Similar conditions and restrictions are alsoprescribed under the performance licence; any exhibition or advertisementwhether by way of posters or in the newspapers, photographs of nudeor scantily dressed women; any performance at a place other than theplace provided for the purpose; any mixing of the cabaret performerswith the audience or any physical contact by touch or otherwise withany member of the audience.

II. Previous litigation

26. This court is no stranger to controversies relating to prohibition,and restriction in participation of women from performances inestablishments in Maharashtra. The first judgment: IHRA-I consideredthe validity of Sections 33A and 33B, introduced to the Act, 1951, witheffect from 14.8.2005. Section 33A, prohibited, absolutely, the holding“of a performance of dance, of any kind or type, in an eating house,permit room or beer bar”. Existing licenses too were cancelled; tohold such performances became an offence. By Section 33B (introduced A

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Aby the amendment of 2005) the prohibition was inapplicable, “to theholding of a dance performance in a drama theatre, cinema theatreand auditorium; or sports club or gymkhana, where entry is restrictedto its members only, or a three starred or above hotel or in anyother establishment or class of establishments” having regard to”(a)the tourism policy of the Central or State Government for promotingBthe tourism activities in the State; or (b) cultural activities, the StateGovernment may, by special or general order, specify in this behalf.”

27. The two provisions (Sections 33A and 33B) were the subjectmatter of challenge before the Bombay High Court, which, by a commonjudgment, held them to be violative of Articles 14 and 19 (1)(g) of theCConstitution of India.[8] The State of Maharashtra appealed; this courtupheld the view of the Bombay High Court (in IHRA-I).

28. The stage was now set for the second innings, as it were. TheState amended the Act, 1951, enacting new provisions with effect from26.05.2014. containing fresh restrictions. The Indian Hotel & RestaurantDAssociation challenged these amendments, by filing a writ petition[9]. Thiscourt, by its reasoned order, having regard to IHRA-I, stayed operationof the impugned provision (newly inserted Section 33A). The said orderIndian Hotel and Restaurant Association v. State of Maharashtra[10](hereafter IHRA-II) stated, inter alia thatE

“…we think it appropriate to stay the operation of theprovisions enshrined under Section 33-A(1) of the Act.However, we add a rider that no performance of dance shallremotely be expressive of any kind of obscenity in any manner.We may hasten to clarify that in the earlier judgment, it hasFbeen clearly stated that sufficient power is vested with thelicensing authority to safeguard any violation of the dignityof women through obscene dances.”

29. The Maharashtra legislative Assembly intervened again; thistime, by a further enactment[11] Section 33A was repealed. As aGconsequence, this court had no occasion to consider the validity of the 8 In the judgment reported as State of Maharashtra v Indian Hotel & Restaurant Assn,2006 SCC Online Bom 418.9 W.P. No. 793/2014.10 (2015) 16 SCC 100.H11 Maharashtra Act No. 12 of 2016.

amendments, made in 2014. The writ petition in IHRA-II was disposedof by an order dated 30.08.2018.[12]

30. The Maharashtra Legislative Assembly, through the Actrepealing the 2014 amendment (with effect from 30.08.2016), also enactedthe Act of 2016. The Indian Hotel and Restaurant Association onceagain approached this court, under Article 32 of the Constitution,complaining that the provisions of the Act, 2016 were unconstitutional,and enacted on the teeth IHRA-I. This court, in its elaborate judgment inIHRA-III, held several provisions of the enactment, as well as rulesframed under it, and conditions imposed by forms, etc (under the rules)to be violative of Articles 14 and 19 (1) (g) of the Constitution.

III. Discussion

31. It is apparent from the above discussion that the power of thestate to regulate has not been disputed. However, what is in issue, iswhether the restriction imposed through conditions of license, areimpermissible because they are not part of the rules or have not beenenacted in any provision of law, and whether the conditions are violativeof Articles 14 and 19 (1) (g) of the Constitution of India.

32. In the previous decisions of this court, the issue decided waswhether a total ban on dancing in bars was justified, and whether itviolated Articles 14 and 19 (1) (g) of the Constitution of India. The issuein IHRA-I was the validity of Sections 33A and 33B of the Act, 1951.This court rejected two submissions of the state: one, that there was areasonable classification between establishments that were three starand above rating hotels and restaurants, where dancing was permittedin bars, and others, because of the nature of their likely clientele; andtwo, that the women who performed as dancers, were from deprivedbackgrounds and susceptible to exploitation. It was held in IHRA-I interalia, that:

“119. The next justification for the so-called intelligibledifferentia is on the ground that women who perform in thebanned establishment are a vulnerable lot. They come fromgrossly deprived backgrounds. According to the appellants,most of them are trafficked into bar dancing. We are unableto accept the aforesaid submission. A perusal of the Objectsand Reasons would show that the impugned legislation 12 The order is reported as 2018 SCC Online (SC) 3127.

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proceed on a hypothesis that different dance bars are beingused as meeting points of criminals and pick-up points of thegirls. But the Objects and Reasons say nothing about anyevidence having been presented to the Government that thesedance bars are actively involved in trafficking of women. Infact, this plea with regard to trafficking of women wasprojected for the first time in the affidavit filed before theHigh Court. The aforesaid plea seems to have been raisedonly on the basis of the reports which were submitted afterthe ban was imposed. We have earlier noticed the extractsfrom the various reports. In our opinion, such isolatedexamples would not be sufficient to establish the connectionof the dance bars covered under Section 33-A withtrafficking. We, therefore, reject the submission of theappellants that the ban has been placed for the protection ofthe vulnerable women.

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D120. The next justification given by the learned counsel forthe appellants is on the basis of degree of harm which is beingcaused to the atmosphere in the banned establishments andthe surrounding areas. Undoubtedly as held by this Court inRam Krishna Dalmia case [AIR 1958 SC 538] , the legislatureis free to recognise the degrees of harm and may confine itsErestrictions to those cases where the need is deemed to be theclearest. We also agree with the observations of the US Courtin Patsone case [58 L Ed 539 : 232 US 138 (1914)] that theState may direct its law against what it deems the evil as itactually exists without covering the whole field of possibleFabuses, but such conclusion have to be reached either on thebasis of general consensus shared by the majority of thepopulation or on the basis of empirical data. In our opinion,the State neither had the empirical data to conclude thatdancing in the prohibited establishment necessarily leads todepravity and corruption of public morals nor was thereGgeneral consensus that such was the situation. The threereports presented before the High Court in fact have presenteddivergent viewpoints. Thus, the observations made in Patsone[58 L Ed 539 : 232 US 138 (1914)] are not of any help to theappellant. We are also conscious of the observations madeHby this Court in Mohd. Hanif Quareshi [AIR 1958 SC 731] , D

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wherein it was held that there is a presumption that thelegislature understands and appreciates the needs of its peopleand that its laws are directed to problems made manifest byexperience and that its discriminations are based on adequategrounds. In the present case, the appellant has failed to giveany details of any experience which would justify such blatantdiscrimination, based purely on the class or location of anestablishment.

121. We are of the opinion that the State has failed to justifythe classification between the exempted establishments andprohibited establishments on the basis of surroundingcircumstances, or vulnerability. Undoubtedly, the legislatureis the best judge to measure the degree of harm and makereasonable classification but when such a classification ischallenged the State is duty-bound to disclose the reasonsfor the ostensible conclusions. In our opinion, in the presentcase, the legislation is based on an unacceptable presumptionthat the so-called elite i.e. rich and the famous would havehigher standards of decency, morality or strength of characterthan their counterparts who have to content themselves withlesser facilities of inferior quality in the dance bars. Such apresumption is abhorrent to the resolve in the Preamble of theConstitution to secure the citizens of India “equality of statusand opportunity and dignity of the individual”. The StateGovernment presumed that the performance of an identicaldance item in the establishments having facilities less thanthree stars would be derogative to the dignity of women andwould be likely to deprave, corrupt or injure public moralityor morals; but would not be so in the exempted establishments.These are misconceived notions of a bygone era which oughtnot to be resurrected.

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123. In our opinion, the activities which are obscene or whichare likely to deprave and corrupt those whose minds are opento such immoral influences, cannot be distinguished on thebasis as to whether they are performing in five-star hotels orin dance bars. The judicial conscience of this Court wouldnot give credence to a notion that high morals and decent AB

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Abehaviour is the exclusive domain of the upper classes,whereas vulgarity and depravity is limited to the lower classes.Any classification made on the basis of such invidiouspresumption is liable to be struck down being whollyunconstitutional and particularly contrary to Article 14 ofthe Constitution of India.”B

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–33. After considering the existing legal and regulatory regime including the Act of 1951, and the rules involved in this the judgmentconcluded as follows:

“132. The Rules under the Bombay Police Act, 1951 haveCbeen framed in the interest of public safety and social welfareand to safeguard the dignity of women as well as preventexploitation of women. There is no material placed on recordby the State to show that it was not possible to deal with thesituation within the framework of the existing laws except forthe unfounded conclusions recorded in the Preamble as wellDas the Statement of Objects and Reasons. [See State of Gujaratv. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534 :AIR 2006 SC 212] wherein it is held that: (SCC p. 573, para75) the standard of judging reasonability of restriction orrestriction amounting to prohibition remains the same,Eexcepting that a total prohibition must also satisfy the testthat a lesser alternative would be inadequate.] TheRegulations framed under Section 33(1)(w) of the BombayPolice Act, more so Regulations 238 and 242 provide that thelicensing authority may suspend or cancel a licence for anybreach of the licence conditions. Regulation 241 empowersFthe licensing authority or any authorised police officer, notbelow the rank of Sub-Inspector, to direct the stoppage ofany performance forthwith if the performance is found to beobjectionable. Section 162 of the Bombay Police Actempowers a competent authority/Police Commissioner/DistrictGMagistrate to suspend or revoke a licence for breach of itsconditions. Thus, sufficient power is vested with the licensingauthority to safeguard any perceived violation of the dignityof women through obscene dances.”

34. The next decision to examine the same issue, was IHRA-III.HThe 2016 Act sought to completely prohibit dancing in bars. This court HOTEL PRIYA, A PROPRIETORSHIP v. STATE OFMAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]

cited State of Punjab v. Devans Modern Breweries Ltd & Anr[13], inthe context of the argument that the regulations impugned were essential,having regard to public morals. The court, in Devans had observed that:

“48. Dealing in a commodity which is governed by a statutecannot be said to be inherently noxious and pernicious. Asociety cannot condemn a business nor there exists apresumption in this behalf if such business is permitted to becarried out under statutory enactments made by the legislaturecompetent therefor. The legislature being the final arbiter asto the morality or otherwise of the civilised society has alsoto state as to business in which article(s) would be criminalin nature. The society will have no say in the matter. Thesociety might have a say in the matter which could have beenconsidered in a court of law only under common-law rightand not when the rights and obligations flow out of statutesoperating in the field. Health, safety and welfare of the generalpublic may again be a matter for the legislature to define andprohibit or regulate by legislative enactments. Regulatorystatutes are enacted in conformity with clause (6) of Article19 of the Constitution to deal with those trades also whichare inherently noxious and pernicious in nature; andfurthermore, thereby sufficient measures are to be taken inrelation to health, safety and welfare of the general public.The courts while interpreting a statute would not take recourseto such interpretation whereby a person can be said to havecommitted a crime although the same is not a crime in termsof the statutory enactment. Whether dealing in a commodityby a person constitutes a crime or not can only be the subject-matter of a statutory enactment.”

35. In IHRA-III, this court relied and followed the previous rulingin IHRA-I where the argument about injury to public morals, and alsothat it offended the dignity of women:

“…Injury to Public Morals: The Court categorically rejectedthe contention that the dance bars affect or cause harm topublic morale. In pertinent part, this Court stated that:

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“120. ..In our opinion, the State neither had the empiricaldata to conclude that dancing in the prohibited establishmentnecessarily leads to depravity and corruption of public moralsnor was there general consensus that such was the situation...”

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(iii) Res Extra Commercium: The State Government contendedBthat the dance performances in such establishments affectthe dignity of women and leads to corruption of public morals.Thus, the respondent justified that the prohibition is areasonable restriction necessary “in the interest of generalpublic” as under Article 19 (6) of the Constitution. This Courtcategorically rejected the said contention, and held that theCrespondent “failed to establish that the restriction isreasonable or that it is in the interest of general public”. ThisCourt further added that the prohibition fails to satisfy thedoctrine of ‘direct and inevitable effect’ to justify suchrestriction, and the insufficiency of the existing regulatoryDframework.”

36. The court clarified that if any performance amounted toobscenity, it would be punishable under law (Section 294, Indian PenalCode and in addition, Section 8 (2) of the Act of 2016). It also observedthat the term “obscenity” is known to law. Furthermore, any premisesEwhich permitted obscene shows ran the risk of losing its license:

“However, even if licence is obtained, that would not meanthat place can be used for obscene dance performances orfor exploiting working women for any immoral purpose. It isthese acts which are made punishable under sub-section (2).FIn this manner, the offence under Section 8 (2) is somewhatdifferent from the offence that is stipulated in Section 294IPC.”

The court repelled the challenge to Section 8 (2), saying that theprovision for a higher penalty (3 years) in respect of an act which is anoffence under Section 294 was reasonable.G

37. The court, in IHRA-III then proceeded to consider the challengeto conditions, which prohibited throwing currency notes and coins, orshowering them, on the performers; the condition also required that anytip offered to the performers, should be included in the bill of theestablishment. The court held that throwing or showering monies wasH

not a desirable practice; at the same time, the imposition on the performersto forgo tips meant for them, was held to be invalid:

“We are of the opinion that insofar as throwing or showeringcoins, currency notes etc. is concerned, the provision is welljustified as it aims at checking any untoward incident as theaforesaid Act has tendency to create a situation of indecency.Therefore, whatever money, any appreciation of any danceperformance, has to be given, can be done without throwingor showering such coins etc. However, there may not be anyjustification in giving such tips only by adding thereto in thebills to be raised by the administration of the place. On thecontrary, if that is done, the person who is rightful recipientof such tips may be denied the same. Further, State cannotimpose a particular manner of tipping as it is entirely a matterbetween an employer and performer on the one hand and theperformer and the visitor on the other hand. We, therefore,uphold the provision insofar as it prohibits throwing orshowering of coins, currency notes or any article or anythingwhich can be monetised on the stage. However, handing overof the notes to the dancers personally is not inappropriate.We also set aside the provision of giving the tips only byadding the same in the bills.”

38. Other conditions, such as stipulations that the establishmentsshould be located at least a kilometer away from religious and educationalinstitutions, the safety of their structures, inspection of the premises byengineers, and other regulatory conditions were considered. Theseincluded the size of the stage, its area, etc. The court was of the opinionthat such regulations were unexceptionable. However, the court’sconclusion in respect of one condition i.e., that alcohol could not be servedin the area where performances were held, was that such a conditionwas unreasonable:

“Condition No. 12 of Part B prescribes serving of alcohol inthe bar room where dances are staged. This is totallydisproportionate, unreasonable and arbitrary. We see noreason as to why the liquor cannot be served at such places.It seems that State is more influenced by moralistic overtonesunder wrong presumption that persons after consumingalcohol would misbehave with the dancers. If this is so, such AB

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Aa presumption would be equally applicable to bar rooms wherethe alcohol is served by women waitresses. However, suchconditions have been held to be unreasonable by the Courts.There may be aberrations or sporadic incidents of this naturewhich can happen not only at the places where danceperformances are staged but at other places including barBrooms and even main restaurants. Other measures have to beadopted to check such a nuance. There cannot be a completeprohibition from serving alcoholic beverages. We, therefore,quash condition No. 12.”

39. It is thus clear that each of the arguments which the state isCrelying on, were considered in the context of challenge to statutoryprohibitions, as well as license conditions. The arguments advanced inthe present case, that the restrictions are necessary in the public interest,to promote the welfare of women, prevent human trafficking in women,and their exploitation, and that the restrictions are necessary in the interestDof public morals, are well worn, and have been decisively rejected. Apartfrom regurgitating the same rejected submissions, the state has notjustified, independently, how the gender-cap, as for an individual orchestraor band, is regulatory.

40. The order of this court dated 02.03.2016 had recorded thatEthe conditions could limit the size of the stage (where performanceswere to be held) to an area of 10 ft x 12 ft size “in restaurant area/permit room as per approved plan of the Excise Department forF.L.-III with non-transparent partition between restaurant and permitroom area.” The court was informed that the limit on the number ofperformers would be four. While an overall limit of the number ofFperformers, which is eight in the present case, cannot be consideredunreasonable, since the enclosure (120 sq feet) would also includeinstrumentalists, that order did not have any occasion to consider thegender-cap for the troupe or band.

41. As far as the decision of this court in Karnataka Live BandGRestaurants Association (supra) is concerned, the requirement of havingto secure a license for a live band was challenged. This court held thatthe legal requirement of having to obtain a license was reasonable. There,the licensing conditions were not disputed. Therefore, that decision hasno bearing on the controversy in the present case.

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42. The impugned gender-cap (i.e. four females and four males,in any performance) appears to be the product of a stereotypical viewthat women who perform in bars and establishments, like the appellants,belong to a certain class of society. Perceptibly, this court observed this,in IHRA-I:

“The reason for the oppressive and moralistic attitude againstdance bars takes root from a patriarchal view that women“engaging in any kind of work or profession outside the homeor domestic sphere’ carried ‘low societal status’”

43. In Anuj Garg & Ors. v. Hotel Assciation of India & Ors.[14]this court examined restrictions on women’s employment in the contextof the state’s arguments that such measures were necessary, to protectthem from injury and observed as follows:

36. we do not intend to further the rhetoric of empty rights.Women would be as vulnerable without State protection as bythe loss of freedom because of the impugned Act. The presentlaw ends up victimising its subject in the name of protection.In that regard the interference prescribed by the State forpursuing the ends of protection should be proportionate tothe legitimate aims. The standard for judging theproportionality should be a standard capable of being calledreasonable in a modern democratic society.

37. Instead of putting curbs on women’s freedom, empowermentwould be a more tenable and socially wise approach. Thisempowerment should reflect in the law enforcement strategiesof the State as well as law modelling done in this behalf.”

Later, in the course of the same judgment, it was observed that:

“47. No law in its ultimate effect should end up perpetuatingthe oppression of women. Personal freedom is a fundamentaltenet which cannot be compromised in the name of expediencyuntil and unless there is a compelling State purpose.Heightened level of scrutiny is the normative threshold forjudicial review in such cases.”

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A44. This thought was articulated more poignantly in one of theconcurring judgments of this court in Joseph Shine v. Union of India[15]where it was emphasized that:

“Society ascribes impossible virtues to a woman and confinesher to a narrow sphere of behaviour by an expectation ofBconformity. [ Nandita Haksar, “Dominance, Suppression andthe Law” in Lotika Sarkar and B. Sivaramayya (Eds.), Womenand the Law: Contemporary Problems, (Vikas PublishingHouse 1994).] Raising a woman to a pedestal is one part ofthe endeavour. The second part is all about confining her toa space. The boundaries of that space are defined by what aCwoman should or should not be. A society which perceiveswomen as pure and an embodiment of virtue has no qualmsof subjecting them to virulent attack….. As an embodiment ofvirtue, society expects the women to be a mute spectator toand even accepting of egregious discrimination within theDhome. This is part of the process of raising women to a pedestalconditioned by male notions of what is right and what is wrongfor a woman.”

45. Long ago, in C.B. Muthamma v. Union of India[16], this courtrecognized the unfairness and discrimination apparent in a service rule,Ewhich required a woman official of the Indian Foreign Service to securepermission before getting married, and armed the government with powerto terminate her services if it was”satisfied that her family anddomestic commitments are likely to come in the way of the due andefficient discharge of her duties as a member of the service”. Thiscourt in very forthright terms held the rule to be void as discriminatory:F

“5. Discrimination against women, in traumatic transparency,is found in this rule. If a woman member shall obtain thepermission of government before she marries, the same riskis run by the Government if a male member contracts amarriage. If the family and domestic commitments of a womanGmember of the Service are likely to come in the way of efficientdischarge of duties, a similar situation may well arise in thecase of a male member. In these days of nuclear families,inter-continental marriages and unconventional behaviour, 15 (2019) 3 SCC 39.H16 (1979) 4 SCC 260.

one fails to understand the naked bias against the gentler ofthe species. Rule 18 of the Indian Foreign Service(Recruitment, Cadre, Seniority and Promotion) Rules, 1961,runs in the same prejudicial strain:

“(1)-(3) * * *

(4) No married woman shall be entitled as of right to beappointed to the service.”

6. At the first blush this rule is in defiance of Article 16. If amarried man has a right, a married woman, other things beingequal, stands on no worse footing. This misogynous postureis a hangover of the masculine culture of manacling theweaker sex forgetting how our struggle for national freedomwas also a battle against woman’s thraldom. Freedom isindivisible, so is Justice. That our founding faith enshrinedin Articles 14 and 16 should have been tragically ignoredvis-a-vis half of India’s humanity viz. our women, is a sadreflection on the distance between Constitution in the bookand law in action. And if the executive as the surrogate ofParliament, makes rules in the teeth of Part III especially whenhigh political office, even diplomatic assignment has beenfilled by women, the inference of diehard allergy to genderparity is inevitable.”

46. The justification provided by the respondents, to sustain therestriction, in so far as they claim to protect the women, in the opinion ofthis court, lay it open to the charge of entombing their aspirations. Incase there were any real concern for the safety of women, the state isunder a duty - as highlighted by Anuj Garg, to create situations conduciveto their working, to run that extra mile to facilitate their employment,rather than to thwart it, and stifle their choice. Such measures – whichclaim protection, in reality are destructive of Article 15 (3) as theymasquerade as special provisions and operate to limit or exclude altogetherwomen’s choice of their avocation.

47. As far as the question whether a condition entrenched in alaw or a rule, goes, the previous judgments of this court in Bijoe Emmanuel(supra), Naveen Jindal (supra), were cited by the appellants. In thepresent case, the regulation on the overall number of performers, oreven the dimensions of a stage (on which a performance can take place)

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Acannot be characterized as a restriction; they can fall within the legitimatedomain of the authority of the commissioner or the government whichformulates such conditions. In view of this court’s conclusion and findingsthat the restriction is upon the gender, in the sense that it seeks to capthe number of performers on the basis of gender. This restriction directlytransgresses Article 15 (1) and Article 19 (1) (g)- the latter provisionBboth in its effect to the performers as well as the license owners. Inview of these findings, this court is of the opinion that it is unnecessaryto address the question as to whether the condition imposed- and held tobe unenforceable and void, is “law”.

48. As the authorities of this court have repeatedly emphasized,Cwhenever challenges arise, particularly based on gender, it is the task ofthe judges to scrutinize closely, whether, if and the extent to which theimpugned practices or rules or norms are rooted in historical prejudice,gender stereotypes and paternalism. Such attitudes have no place in oursociety; recent developments have highlighted areas hitherto consideredDexclusive male “bastions” such as employment in the armed forces, areno longer so. Similarly, in the present case, this court holds that the gendercap imposed by the impugned condition is void. One hopes that the presentjudgment would still a lingering and discordant note of a cymbal silencedlong back, by previous judgments of this court.

E49. For the foregoing reasons, the impugned judgment is herebyset aside. It is hereby declared that the condition imposing a gender capas to the number of women or men, who can perform in orchestras andbands, in bars licensed under the Rules, 1960 and other allied provisions,is void. While the overall limit of performers in any given performancecannot exceed eight, the composition (i.e., all female, majority female orFmale, or vice versa) can be of any combination. The appeals are allowed,but with no order on costs.

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Divya Pandey and Amarendra Kumar(Assisted by : Adnan Khan, LCRA)

Appeals allowed.

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