By
Amritananda Chakravorty
The
issue of the operation of dance bars in Maharashtra has been in the news again,
wherein the Supreme Court struck down some of the conditions of license to run
dance bars as arbitrary and violative of the fundamental freedom of trade
guaranteed under Articles 14 and 19(1)(g) of the Constitution. It may be noted
that in 2005, the Maharashtra Government introduced Sections 33A and 33B, vide the
Bombay Police Amendment Act, in the Bombay Police Act, 1951, which prohibited
any kind of dance performance in an eating house, permit room or beer bar,
subject to the exception in Section 33B if the dance performances was held in a
theatre, or a members only restricted club. This was held to be
unconstitutional by the Bombay High Court for being vague, arbitrary and
violating the right to carry on business, which was then affirmed by the
Supreme Court in 2013 in State of Maharahtra & Anr. V. Indian Hotel &
Restaurant Association (2013) 8 SCC 519.
In
2013, the Court had held that there was no distinction between the dance
performance held in dance bars and in three star establishments, so the
prohibition in the former was totally illegal. The Court also held that dance
was a form of expression, and any prohibition on such expression is an
unreasonable restriction on the fundamental right to expression under Article
19(1)(a), and not protected under Article 19(2) of the Constitution. The Court
further rejected the State’s argument that most of the bar dancers were
allegedly trafficked women or highly vulnerable to trafficking, on the basis
that there was no evidence to that effect.
Thereafter,
the State Government again passed the Bombay Police (Second Amendment) Act,
2014, which retained Section 33A, and deleted Section 33B, and this was again
challenged in the Supreme Court. The Court then stayed the operation of Section
33A in October, 2015. The State Government then passed the Maharashtra
Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and
Protection of Dignity of Women (Working therein) Act, 2016, and the Maharashtra
Prohibition of Obscene Dance in Hotels, Restaurant, and Bar Rooms and
Protection of Dignity of Women (Working therein) Rules, 2016, which were also
challenged.
The
main challenge in the petition pertained to the definition of ‘obscene dance’
(Section 2(8) of the 2016 Act, as well as certain licensing conditions of the
Act. In terms of the definition of ‘obscene dance’, the law went beyond the
ambit of Section 294, IPC and included those dance which were aimed at arousing
prurient interest in the audience. This was argued to be vague and incapable of
precise explanation, but the Court found that it clearly meant dances that were
aimed at encouraging the sexual interest of the audience and would not be
vague.
The
judgment also upheld Section 8(2) which punishes running a dance bar without a
licence with imprisonment upto 3 years, while the IPC only punishes with 3
months for obscene acts. The Court clarified that the section does not punish
exhibiting obscene acts but running a bar without a licence and the offences
are not the same, so the provision could be upheld. The Court also upheld time
restrictions as to the running of the bars – between 6PM and 11:30PM. The court
also found that the provisions for written contract, deposit of the
remuneration in the bank accounts of the employee as well as submission of the
written contracts with the licensing authority are valid stipulations.
The
court struck down some parts of the statute as well. Money cannot be thrown at
the dancers now but it can be personally handed to the dancers. The dancers who
are rightful recipients of such tips cannot be denied the tips and a manner of
tipping cannot be imposed on the patrons and so handing over money to the
dancer cannot be held as inappropriate. Any condition stipulating the character
of the person who can obtain licences for running a bar was quashed by the
court. Further the Court struck down the condition that the dancers have to be
employed on a monthly salary. The Court said that the employees have the choice
to decide between different modes of payment and the State could not impose a
particular method, including on contract.
In
all, the Supreme Court struck down some rules, while upholding others, based on
sometimes contradictory positions. Though the Court came down heavily on the
State’s attempt to impose their notion of morality on the citizens, in the same
vein, the Court upheld the definition of ‘obscene dance’ on the basis of a
vague test of ‘arousing prurient’ in the patrons.
In
any case, the bar owners and dancers have been litigating on this issue for
almost 13 years, and despite winning at every forum, they have not been able to
operate dance bars in Mumbai. Despite a categorical Supreme Court decision in
2013, not a single license has been granted by the State of Maharashtra, who
has tried every trick in the book to defeat the mandate of the highest
Constitutional Court of this country, thereby violating the fundamental rights
of the thousands of bar dancers in India. Most of them have been left without
any sustainable means of livelihood, leaving them in penury and distress. It is
hoped that the present decision would bring some hope in their lives, and they
would able to work as bar dancers, after more than a decade.
[Indian Hotels and Restaurants
Association v State of Maharashtra, Writ Petition (Civil) No. 576 of 2017,
dated 17.01.2019] (IPA Service)
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