SC nullifies ‘gender cap’ on performers in orchestra bars in Maharashtra, says stereotypical view has no place

 The Supreme Court has scrapped the condition imposed by Maharashtra authorities that limited the number of female and male performers in orchestra bars to four each, saying rules based on gender stereotypes have no place in the society.

“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,” it said in an order.

A bench of justices K M Joseph and S Ravindra Bhat, which set aside the Bombay High Court judgement, said the “gender-cap” appears to be the product of a stereotypical view that women who perform in bars and establishments belong to a certain class of society.

The High Court had rejected a plea against the licence condition to keep only four women and four male singers or artistes on the stage of the orchestra bars.

The top court said that the cap directly transgresses the fundamental rights of the performers as well as the licence owners under Article 15 (1) and Article 19 (1) (g) of the Constitution.

“As the authorities of this court have repeatedly emphasised, whenever challenges arise, particularly based on gender, it is the task of the judges to scrutinise closely, whether, if and the extent to which the impugned practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism.

“Such attitudes have no place in our society; recent developments have highlighted areas hitherto considered exclusive male ‘bastions’ such as employment in the armed forces, are no longer so.

“Similarly, in the present case, this court holds that the gender cap imposed by the impugned condition is void,” the bench said.

The top court said that it hopes that the present judgment would still the lingering and discordant note of a cymbal silenced long back by previous judgments of this court.

“For the foregoing reasons, the impugned judgment is hereby set aside.

“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 Licensing and Performance for Public Amusement including Cabaret Performance, Melas and Tamashas Rule, 1960 and other allied provisions, is void,” the apex court said.

The High Court had rejected the challenge to the conditions imposed by the Commissioner of Police, holding that the power to impose them was traceable to provisions of the Maharashtra Police 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.