FACTS OF THE CASE
The appellants were either owners or were operating restaurants and bars with the necessary license in an are where orchestra performances were already prevalent. To run orchestra, a licence is required under Licencing and Performance for Public Amusement, including Cabaret Performance, Melas and Tamashas Rule, 1960. The condition laid down in these rules are formulated by the police commissioner. The appellants challenged these two conditions-
a. Only four female and four male performers were permitted to be present on permitted stage through licences.
b. The number of performers present on the permitted stage were limited to be 8.
The Appellants had pleaded that the aforementioned conditions were ultra vires to Article 14 and Article 19(1)(g) of the Constitution of India. The writ petition was filed in the High Court of Bombay which held that the police commissioner was well within his powers to make such conditions under The Bombay Police Act, 1951. Hence, the petition was dismissed by the High Court. The appellants then went to the Supreme Court. The case was decided by a division bench consisting of Justice R Bhat and Justice Joseph.
- Whether the conditions imposed under the rules are violative of Article 14 of the Constitution of India?
- Whether conditions imposed on limiting the total number of employees and the number of female artists is violative of Article 19(1)(g) of the Constitution of India?
- APELLANTS- Mr Prasenjit Keswani and Mr Manoj K. Mishra, learned counsel for the appellants, argued that the contested conditions, which limit establishments to hiring only eight artists and strictly, four male and four female artists, violate Articles 14 and 19(1)(g) of the Constitution. They claimed that limiting the number of participants in an orchestral combination and adding a second restriction on their gender restricts both the performers’ rights and the organisers’ rights. The number restriction will have the effect of completely barring the participation of other kind of bands, if there are all-male bands, all-female bands, or orchestras, or any different combination of the two. This would go against Article 19(1)(g) and be totally unreasonable. It was emphasised that this provision would not be subject to any of the reasonable restriction clauses under Article 19(6). Further, they contended that such limitation has no rationale behind it and the composition of the band should be left on the discretion of the organizers. The Commissioner of Police has the authority to issue licences or regulations governing public amusement or entertainment venues under Sections 33(1)(w), (wa)(i), and (wa)(ii). The employment of artists and the behaviour of the artists and audience at such performances are also subject to change under these provisions if it is in the interest of public order, decency, or morality, or if it is in the general public’s interest. This clause specifies that only rules or orders may be used for licencing and controlling. Despite the fact that the commissioner has these powers, they must be used in accordance with Sections 33(2)(ii) and 33(6). Licencing and controlling can therefore only be done by rules, not through orders. If the commissioner is allowed to impose any condition according to his will, it will be a matter of excessive legislation. The rule cannot curtail the fundamental rights given under Article 19(1)(a) and 19(1)(g), since the conditions imposed under the said Rule continue to be executive instructions, they cannot curtail the enjoyment of Fundamental Rights as executive instructions are not law within the meaning of Article 13(3)(a) and for the purpose of Article 19(6). . The petitioners cite the previous decisions of this court and urged that this court in those decisions while rejecting the argument of public morals (banning dancing bars) by the state, also ruled that “dancing in bars could not be held to be res extra commercium.” These rules were deemed to be unjustifiable on the grounds of intelligible difference and the fact that women who perform in such venues typically come from underprivileged backgrounds, making them vulnerable to trafficking or being coerced into a profession to which they may not otherwise be drawn. Likewise, it is asserted, the limits in question in this case do not in any way advance the Police Act’s Statement of Objects and Reasons. And argued that the criteria being contested cannot be justified because they aim to stop illegal activity and violate public morals.
It was argued that the history of the law demonstrated that orchestra bars were used to take advantage of women by forcing them to do lewd dance moves and have sex with patrons. Article 15(3), which specifies that nothing in this article shall impede creating any particular provisions for women and children, has been amended to include the restriction of having just four women. Additionally, it is in the best interests of the general public and the safety of female artists and employees. The respondent argues in front of the court that the aforementioned circumstances do not contravene Article 14. As long as the classification is based on “intelligible differentia,” as allowed by Article 14, there must be some goal the classification is trying to accomplish. It isn’t necessarily true that fewer females have been allowed to participate, or that all venues have been allowed to use the same number of women in each production. Therefore, Article 14 of the Indian Constitution has not been violated. It was alleged in court that the establishment was a dancing bar, a location where musicians playing for the orchestra (waitresses or bar girls) were known to engage in lewd behaviour with patrons. The respondent claims in court that the conditions listed above do not infringe It developed into a location for prostitution contact points. According to recent research, a total of 217 complaints under Section 294IPC and 97 cases under Sections 3, 4, and 5 of the Immoral Trafficking (Prevention) Act (PITA) of 1956 were filed in Mumbai between 2009 and March 2013. It was argued that the criteria do not contravene Article 19(1)(g), since Article 19(6) permits the imposition of reasonable limitations for the benefit of the general public. The dignity of women must be upheld, and their exploitation must be avoided.
The state’s argument that the restrictions are required in the public interest to advance the welfare of women, prevent human trafficking and their exploitation, and that the restrictions are required in the interest of public morals has been repeatedly and decisively refuted by the court while deciding the case. The standard of judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate.  There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions recorded in the Preamble as well as the Statement of Objects and Reasons. Since it is obvious that each of the state’s arguments was considered in the context of challenges to statutory restrictions and licence requirements, the state was not justified in asking how the gender cap, as for a single orchestra or band, is regulated. Other conditions, such as requirements that the establishments be at least a kilometre away from religious and educational institutions, the safety of their structures, engineer inspections of the premises, and other regulatory requirements were taken into consideration in addition to the aforementioned ones. The restriction that “alcohol would not be served in the area where performance is done by dancers” is considered unreasonable, nonetheless. The court once again emphasized on the fact that ‘Society ascribes impossible virtues to a woman and confines her to a narrow sphere of behaviour by an expectation of conformity.’ – which was previously mentioned by the court in the Joseph Shine v. Union of India judgement. Court also stated the observation made in Anuj Garg & Ors. v. Hotel Assciation of India & Ors., where it held: “We do not intend to further the rhetoric of empty rights. Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging the proportionality should be a standard capable of being called reasonable in a modern democratic society.”  The court determined that the other rules and restrictions regarding the overall number of performers were valid and legal in the eyes of the law, but that the denial of performers based solely on their gender violated Articles 15 (1) and 19 (1) (g) of the Indian Constitution. The court highlighted that both licence holders and performers will be impacted. and determined that the terms of the agreement were unlawful and unenforceable. The Court ruled that the Rules, 1960 provision’s restriction on the number of women and men who can perform in orchestras and bands is invalid. While maintaining the eight-performer maximum as the overall cap. The court further explained that any performance that constituted obscenity would be punished in accordance with Section 294 of the Indian Penal Code, and the bar that allowed the offensive material would lose its licence.
According to the SC, the gender cap directly violated Articles 15 (1) and 19 (1) (g). The Bombay High Court’s contested decision was overturned, and the petition was partially granted. The SC decided as follows:
- The 1960 Rule’s condition that enforced the gender cap as well as other related clauses were void.
- Regardless of the composition, the 1960 Rule’s eight-performer maximum was to remain the cap.
It was emphasised that the State should go above and above to support women’s employment, rather than obstructing it and restricting their choice, if there were any genuine concerns for the safety of women.
DEFECTS OF LAW
Although the judgement upholds some noble concepts such as equality, safeguarding the livelihoods but there are some aspects of it which needs deeper scrutiny. In paragraph 5, when the petitioners’ submissions were recorded it is noted that along with the issue of gender-caps of four male and four female performers, “the impugned conditions restricting the establishments to engage only eight artists” was also a ground of contention for the petitioners. But then in Paragraph 6, the court notes that the Court notes that “while not disputing that the overall limit of eight performers on stage at any given point of time is reasonable, the insistence that limits the number of performers of either gender is unreasonable and manifestly arbitrary.” This a sheer contradiction. It is also unclear how the above-mentioned condition directly discriminates on the ground of gender, since what it prescribes is an equal number of men and women. Given, the fact that mostly women perform in these orchestras when compared to the number of men, therefore a gender-cap that is symmetrical on its face will have an asymmetricalimpact upon women which makes it a case of indirect discrimination. Furthermore, it would also be a case of intersectional.discrimination, given the class angle involved.  While the judgement is definitely correct but there needs to be some clarity in some areas.
AUTHORED BY – ARISIA MANDAL, 1ST YEAR, DHARMASHASTRA NATIONAL LAW UNIVERSITY
 Bijoe Emmanuel & Ors. v. State of Kerala, (1987) AIR 748
 Indian Hotel And Restaurant Association vs The State Of Maharashtra, (2019) 3 SCC 429
 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534
 Nandita Haksar, “Dominance, Suppression and the Law” in Lotika Sarkar and B. Sivaramayya (Eds.), Women and the Law: Contemporary Problems, 1994
 Joseph Shine v. Union of India, (2018) SC 1676
 Anuj Garg & Ors vs Hotel Association Of India & Ors, (2008) 3 SCC 1
 Gautam Bhatia, Direct and Indirect Discrimination: Conceptual Slippages in the Orchestra Bars Case, WordPress.com (19 June, 2023, 9:53 PM), https://indconlawphil.wordpress.com/2022/02/22/direct-and-indirect-discrimination-conceptual-slippages-in-the-orchestra-bars-case/