HOTEL PRIYA, A PROPRIETORSHIP versus STATE OF MAHARASHTRA & ORS.

Citation: [2022] 16 S.C.R. 322 · Decided: 18-02-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 16 S.C.R.
HOTEL PRIYA, A PROPRIETORSHIP
v.
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 1459 of 2022)
FEBRUARY 18, 2022
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Licensing and Performance for Public Amusement including
Cabaret Performance, Melas and Tamashas Rules, 1960 – rr.108,
109, 120, 122 and 123 – Constitution of India – Article 15(1),
19(1)(g) – Impugned conditions inter alia imposed a gender cap as
to the number of women or men, who can perform in orchestras
and bands in licensed bars – Challenge to – Conditions upheld by
High Court – On appeal, held: Impugned gender cap is the product
of stereotypical view that women who perform in bars and
establishments, like the appellants, belong to a certain class of
society – Such measures that claim to protect the women, in reality
are destructive of Art.15 (3) – This restriction directly transgresses
Art. 15(1) and Art. 19 (1) (g)- the latter provision both in its effect
to the performers as well as the license owners – 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 1960 Rules
and other allied provisions, is void – However, the regulation on
the overall number of performers, or even the dimensions of a stage
(on which a performance can take place) cannot be characterized
as a restriction; they can fall within the legitimate domain of the
authority of the commissioner or the government which formulates
such conditions – Thus, 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 – Impugned judgement set aside – Maharashtra Police
Act, 1951 – ss.2(9), 2(10), 33(1), 33(2), 162(1) & 162(2).
Allowing the appeals, the Court
HELD: 1.1 The arguments advanced in the present case,
that the restrictions are necessary in the public interest, to
promote the welfare of women, prevent human trafficking in
[2022] 16 S.C.R. 322
322
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women, and their exploitation, and that the restrictions are
necessary in the interest of public morals, are well worn, and
have been decisively rejected. Apart from regurgitating the same
rejected submissions, the state has not justified, independently,
how the gender-cap, as for an individual orchestra or band, is
regulatory. The order of this court dated 02.03.2016 (in Writ
Petition (C) No. 793/2014) had recorded that the conditions could
limit 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 as
per approved plan of the Excise Department for F.L.-III with
non-transparent partition between restaurant and permit room
area.” The court was informed that the limit on the number of
performers would be four. While an overall limit of the number of
performers, which is eight in the present case, cannot be
considered unreasonable, since the enclosure (120 sq feet) would
also include instrumentalists, that order did not have any occasion
to consider the gender-cap for the troupe or band. [Paras 39,
40][344-C-F]
State of Maharashtra & Anr. v. Indian Hotel and
Restaurant Association & Ors. (IHRA-I) (2013) 8 SCC
519 : [2013] 7 SCR 654; Indian Hotel and Indian Hotel
and 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 four
males, in any performance) appears to be the product of a
stereotypical view that women who perform in bars and
establishments, like the appellants, belong to a certain class of
society. The justification provided by the respondents, to sustain
the restriction, in so far as they claim to protect the women, in the
opinion of this court, lay it open to the charge of entombing their
aspirations. 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. Such measures – which claim protection, in
reality are destructive of Article 15 (3) as they masquerade as
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS.
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SUPREME COURT REPORTS
[2022] 16 S.C.R.
special prov

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