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)
INDIA: LEGAL WATCH
MAHARASHTRA GOVT STILL RELUCTANT TO ALLOW DANCE BARS
SUPREME COURT MUST ENSURE IMPLEMENTATION OF ITS ORDER
Amritananda Chakravorty - 2019-01-23 16:03
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.