Limits Womens Choice of Avocation under the Guise of Protection: Supreme Court Quashes Gender Cap in Orchestra Bars
Case: Hotel Priya A Proprietorship Vs State Of Maharashtra
Coram: Justices KM Joseph and S. Ravindra Bhat
Case No.: SLP (C) NO. 13764 OF 2012
Court Observation: “Practices or rules or norms are rooted in historical prejudice, gender stereotypes and paternalism have no place in our society”
“Such measures – which claim protection, in reality are destructive of Article 15 (3) as they masquerade as special provisions and operate to limit or exclude altogether women’s choice of their avocation”
“..recent developments have highlighted areas hitherto considered exclusive male “bastions” such as employment in the armed orces, are no longer so”
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 special provisions and operate to limit or exclude altogether women’s choice of their avocation.
In view of this court’s conclusion and findings that the restriction is upon the gender, in the sense that it seeks to cap the number of performers on the basis of gender. This restriction directly transgresses Article 15 (1) and Article 19 (1) (g)- the latter provision both in its effect to the performers as well as the license owners.
In view of these findings, this court is of the opinion that it is unnecessary to address the question as to whether the condition imposed- and held to be unenforceable and void, is “law”.
As the authorities of this court have repeatedly emphasized, whenever challenges arise, particularly based on gender, it is the task of the judges to scrutinize 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. One hopes that the present judgment would still a lingering and discordant note of a cymbal silenced long back, by previous judgments of this court.
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Keywords
Guise of Protection, Gender Cap, Women’s Guise of Protection
