‘Gender stereotypes and historical biases have no place in society,’ SC says of cap on female performers in bars

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The Supreme Court has declared that gender stereotypes and historical biases have no place in society, while declaring that a gender cap imposed by the Maharashtra government on female performers, limiting them to four, in dance bars and live band, sucked.

A bench consisting of Justices KM Joseph and S. Ravindra Bhat said: “The justification provided by the Respondents (Government of Maharashtra and others), for maintaining the restriction, inasmuch as they claim to protect women, in the opinion of this tribunal, expose it to the accusation of burying their aspirations.”

Judge Bhat, who wrote the judgment on behalf of the bench, said the state has not independently justified how the genre cap, such as for an orchestra or individual band, is regulatory. The court did not accept the assertion that the restrictions are necessary in the public interest, to promote the welfare of women, to prevent trafficking in women, and that the restrictions are also necessary in the interest of public morality.

Judge Bhat said that the authorities of this court have repeatedly stressed that whenever issues arise, particularly on the basis of gender, it is incumbent on judges to consider whether, if and to what extent these practices are rooted in historical prejudices, gender stereotypes and paternalism. . “Such attitudes have no place in our society; recent developments have shed light on areas that were once considered exclusive male ‘bastions’ such as employment in the armed forces, are no longer so,” he said. he added in a 23-page judgment delivered on Friday.

Justice Bhat pointed out that if there was a real concern for the safety of women, the state has a duty to create conducive situations for their work, to go the extra mile to facilitate their employment, rather than to thwart it. and stifle their choice. “Such measures – which claim protection, are actually destructive of Article 15(3) because they masquerade as special provisions and have the effect of limiting or completely excluding women’s choice of vocation” , Judge Bhat said.

The Supreme Court held that the restriction directly violated the fundamental rights of performers as well as licensees under Section 15(1) and Section 19(1)(g) of the Constitution.

The top court overturned the Bombay High Court, which refused to hear a plea challenging the license condition to keep only four women and four male singers or performers on the band bar scene. “In this case, this court finds the gender ceiling imposed by the impugned condition to be zero. It is hoped that this judgment would be yet another lingering and discordant note from a cymbal long silenced, by previous judgments of this court,” Judge Bhat said.

The lawyer, representing one of the licensees, Hotel Priya, argued that the restrictions on the establishment – hiring only eight artists and in addition, strictly, four men and four women – violated Article 14 and Article 19(1)(g) of the Constitution. Judge Bhat said: “The disputed gender cap (i.e. four women and four men, in any depiction) 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 higher court made it clear that while the overall limit of performers in a given performance cannot exceed eight, the line-up — all female, majority female, or male, or vice versa — can be any combination.

Concluding the judgement, Judge Bhat said “that the condition imposing a gender cap on the number of women or men, who may perform in orchestras and bands, in licensed bars under the rules (licences and Performances for Public Entertainment, Including Cabaret Shows, Melas and Rule of Tamashas), 1960 and other related provisions, is void”. Previously, the high court had ruled that a total ban on dance bars was not warranted.

Posted: Saturday February 19th 2022, 5:16 PM IST

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