PRIYA HOTELS Vs. UNION OF INDIA.

FACTS OF THE CASE

1. The appellants were either owners or were operating restaurants and bars with the requisite licences and permissions. Orchestra performances are a common feature on these premises. Hence, they go by the appellation “Orchestra Bars”.
2. For obtaining a licence for orchestra bars, they are required to get one from Licencing and Performance for Public Amusement, including Cabaret Performance, Melas and Tamashas Rule, 1960 (hereafter “Rules, 1960”). Under this rule, the police commissioner exercises his power and imposes a few conditions. Out of these conditions two condition was challenged by petitioner. These conditions are:
   • The licensee is permitted to keep only four female singers or artists and four male singers or artists present on the permitted stage.
   • A maximum of eight artists are permitted to remain present on the permitted stage, i.e., four men and four women.
3. Before the High Court, the appellants had contended that the above-mentioned rules violated Article 14 and Article 19(1)(g) of the Constitution of India.
4. The High Court held that the conditions imposed by the commissioner are traceable to the provisions of the Act of 1951. And the commissioner is at liberty to grant such conditions and has acted well within its power. Hence, the court rejected the writ petition.

ISSUES RAISED

• 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
• Whether the total ban on orchestral performances in bars was justified
• Whether the rules made by the executive, i.e., the commissioner, under this clause are valid
• Whether other conditions mentioned in the rules are valid

ARGUMENTS

PETITIONER ARGUMENT

1. It was argued that the conditions restricting the establishments to engaging only eight artists, and further, strictly, four male and four female artists, are violative of Article 14 and Article 19(1)(g) of the Constitution. Restriction on the number of artists and imposing restriction on the basis of gender in an orchestral mixture is restrictive of the performers’ rights in addition to the rights of the organisers.
2. It was submitted before the court that the conditions had no rationale with the purported object sought to be achieved. A strict and inflexible numerical department of same gender participation withinside the orchestra band, serves no rational basis. There can be all female or all male, few female or few male, or vice versa, in any band, and transgender people can also be part of a band. So not disputing the overall limit of eight performers on stage at any given point in time is reasonable, but the insistence on the limits of the number of performers of either gender is unreasonable and manifestly arbitrary.
3. As per Sections 33(1)(w), (wa)(i), and (wa)(ii), the Commissioner of Police is empowered to make rules to licence or control places of public amusement or entertainment. Those provisions additionally empower making guidelines to adjust withinside the hobby of public order, decency, or morality or in or in the general public’s interest, the employment of artists and the conduct of the artists and audience at such performances. This provision makes it clear that licencing and controlling can only be done through rules or orders. Even though the commissioner has these powers, they have to be exercised under Section 33(2)(ii) and Section 33(6). Therefore, licencing and controlling can only be achieved by rules and not by executive instructions or decisions.
4. Those provisions on the basis of intelligible differentia and the fact that women who perform in such establishments belong to deprived backgrounds and are vulnerable to trafficking or forced into bar dancing, which they may not be otherwise inclined to, were held to be unjustified.
5. It is submitted that likewise, the restrictions impugned in the present case do not, in any manner, further the Statement of Objects and Reasons of the Police Act. And contended that the conditions challenged cannot be justified on the grounds that they seek to prevent prohibited activity and are injurious to public morals.

RESPONDENT’S ARGUMENT

1. It was contended that the history of the legislation showed that orchestra bars are the places for exploitation of women by making them do obscene dance moves and also engage in sexual activities with the customers. The stipulation of having only four women has been made under Article 15(3), which states that nothing in this article shall prevent making any special provision for women and children. And it is for the safety of female employees and artists, as well as in the interest of the general public.
2. Respondent submits before the court that the above-mentioned conditions do not violate Article 14. As Article 14 permits ‘reasonable classification’ as long as it is based upon ‘intelligible differentia, if it is under classification then there must be some object the classification seeks to achieve. It isn’t always the case that a smaller variety of girls have been authorised or that all establishments have been permitted to engage the same number of women in each performance. Hence, there is no violation of Article 14 of the Constitution of India.
3. It was argued before the court that it was a dance bar, a place where artists performing for the orchestra (waitresses or bar girls) are known to indulge in explicit activities with the customers. It became a place for points of contact for prostitution. As per the recent report, between 2009 and March 2013, in Mumbai, a total of 217 cases were registered under Section 294IPC and 97 cases under Sections 3, 4, and 5 of the Immoral Trafficking (Prevention) Act (PITA) of 1956.
4. It was contended that the conditions are not in violation of Article 19(1)(g) as, according to Article 19(6), reasonable restrictions can be imposed in the interests of the general public. It is necessary to protect the dignity of women and prevent their exploitation.

JUDGEMENT ANALYSIS

1. While deciding the case, Court rejected the argument of the state that the restrictions are necessary in the public interest, to promote the welfare of women, prevent human trafficking of women, and their exploitation, and that the restrictions are necessary in the interest of public morals, are well worn, and have been decisively rejected.thus it is  clear that each of the arguments on which the state is relying on, were considered in the context of challenges to statutory prohibitions, as well as license conditions, and the state was not justified, for asking that how the gender-cap, as for an individual orchestra or band, is regulatory.
2. Apart from the above mentioned conditions, other conditions such as stipulations that the establishments should be located at least a kilo meter away from the religious and educational institutions, the safety of their structures, inspection of the premises by engineers, and other regulatory conditions were considered. But the stipulation that the “alcohol would not serve in the area where performance are done by dancers”, is held to be unreasonable.
3. Court emphasised that 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.
4. Court while deciding the case articulated his view by giving reference to Joseph Shine v. Union of India[1] where it was emphasized that:
5. “Society ascribes impossible virtues to a woman and confines her to a narrow sphere of behaviour by an expectation of conformity. [ Nandita Haksar, “Dominance, Suppression and the Law” in Lotika Sarkar and B. Sivaramayya (Eds.), Women and the Law: Contemporary Problems, (Vikas Publishing House 1994).] Raising a woman to a pedestal is one part of the endeavour. The second part is all about confining her to a space. The boundaries of that space are defined by what a woman should or should not be. A society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack….. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. This is part of the process of raising women to a pedestal conditioned by male notions of what is right and what is wrong for a woman.” (2008) 3 SCC 1.
6. Court also stated the observation made in   Anuj Garg & Ors. v. Hotel Assciation of India & Ors[2]., where it held:
7. “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.”
8. Court held that the other regulations, stipulations on overall no. of performer was held to be valid and legitimate in eye of law but the findings that the restriction is upon the gender, i.e.  debar no. of performers on the basis of gender  directly transgresses Article 15 (1) and Article 19 (1) (g)  of constitution of India. Court emphasised it will effect  both performers as well as licence owners. And held the conditions imposed as unenforceable and void, is “law
9. Court declared that the condition imposing a gender cap as to the number of women or men, who can perform in orchestras and bands, under the Rules, 1960 provision , is void. While the overall limit of performers i.e. eight,is held as valid.
10. The court further clarified that if any performance amounted to obscenity, it would be punishable under law Section 294, Indian Penal Code and  the bar which permitted the obscene will lose the license.

CONCLUSION

In this judgement, court disapprove gender stereotypes notions, then the supreme court held that the conditions which imposes gender gap as no. of men or women to be performed at orchestra and bands , in license bars is unconstitutional. Thus, we can say that the Conditions mentioned under Rules was declared by court as void and unconstitutional as it is in violation of Article 15 and Article 19 (1)(g). However the overall limits of the performers in any of the performance cannot exceed eight.

[1] 2018 SC 1676

[2]  (2008) 3 SCC 1

written by – Vartika Singh

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