December 3, 2020

Case Brief :Indian Hotel and Restaurant Association (Ahar) & Anr. v. The State of Maharashtra &a

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 576 OF 2016

BENCH: JUSTICE ASHOK BHUSAN, JUSTICE ARJAN KUMAR SIKRI

The Apex Court on 15 October, 2015 stayed the operation of 2014 amendment in the Maharashtra police (Second Amendment) Act, 2014 that had banned dance performances at bars and some other places, covering the way for reopening of dance bars across the state.

The Supreme Court however added a rider to its interim order and allowed the licensing authorities in the state to regulate indecent dance performances at bars and other places.

The apex court has fixed the petition filed by Indian Hotel and Restaurant Association for final hearing on November 5, 2015 and said that the matter pertaining to the similar issue had already been decided by this court in July 2013.

The Maharashtra government had brought the Bombay Police (Amendment) Act, 2005 with the object of securing public order, morality, dignity of women, and reducing exploitation of women including trafficking of minor girls. Section 33A was inserted that prohibited performance of all types of dance in eating houses or permit rooms or beer bars. Section 33B was inserted that permitted three-star hotels and Government associated places of entertainment to hold dance performances. The Indian Hotel & Restaurants Association filed a writ petition challenging Section 33A of the Bombay Police Act, 1951 before the Bombay High Court on the grounds that such prohibition:

(a) Discriminates against women employed to dance in eateries and bars and those employed to dance in three-star hotels and government establishments;

(b) Interferes with their right to work and right to earn a livelihood, and thus is violative of the Indian Constitution. The Bombay High Court held that Section 33A is violative of Articles 14 (equality) and 19(1)(g) (right to work), of the Indian Constitution.

The Maharashtra Government filed an appeal before the Supreme Court and prayed that the terms “All dance” found in Section 33A be read down to mean “dances which are obscene and derogatory to the dignity of women” instead of striking it off altogether to ensure that the right to work of women is not interfered with. The Supreme Court on July 16, 2013 upheld the judgement of the Bombay High Court. It declared that Section 33A violates Article 14 the Constitution of India on the ground that such law is based on an unacceptable presumption that the so-called elite (i.e. wealthy and the famous) have higher standards of decency, morality or strength of character than their counterparts who have to content themselves with lesser facilities of inferior quality in the dance bars.

It declared that Section 33A violates Article 19(1)(g) on the ground that it interferes with the right of women to work and that, contrary to the ban’s purpose, it resulted in forcing some women into prostitution. The Court further advice the government to take affirmative action to ensure the safety and improve the working conditions of the persons working as bar dancers who primarily constitute of women.

In Indian Hotel and Restaurant Association (IHRA) v State of Maharashtra, the Supreme Court (SC) was asked to consider the constitutional validity of a 2016 Maharashtra law, which was ostensibly passed to “regulate” bar dancing. The law was enacted on the heels of an SC judgment in July, 2013, which had struck down a previous legislative attempt by the government to ban bar dancing entirely by the Bombay Police (Amendment) Act, 2005. The response of government to that judgment was to pass a fresh law in 2016, which imposed such a stringent set of conditions and licensing requirements, that made bar dancing virtually impossible.

Supreme Court Partially upholding the validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and the Rules made thereunder, the bench of Dr. AK Sikri and Ashok Bhushan held that the State must have an “open mind” in matters relating to staging dance performances in dance bars. It said:

“State cannot take exception to staging dance performances per se. It appears from the history of legislative amendments made from time to time that the respondents have somehow developed the notion that such performances in the dance bars do not have moralistic basis.”

In its judgment delivered, the SC struck down some of the important provisions:

Giving the tips only by adding them in the bills: State cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand.

Licence to person of “good character”: Provision proving that a person is entitled to obtain or hold licence who possesses a ‘good character’ and ‘antecedents’ and he should not have any history of ‘criminal record’ in the past ten years, struck down for being vague.

1 KM distance from educational and religious institutions: Such a condition does not take into account the ground realities particularly in the city of Mumbai where it would be difficult to find any place which is one km away from either an education institution or a religious institution.

Monthly Salary to performers : The condition of employing such persons on monthly salary does not stand the judicial scrutiny. This shows that such persons are to be employed in a particular manner i.e. on monthly basis.

Prohibition on serving of alcohol in the bar room where dances are staged: This is totally disproportionate, unreasonable and arbitrary. State is influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers and if this is so, such a presumption would be equally applicable to rooms (bars rooms) where the alcohol is served by women waitresses.

Installing of CCTV Cameras: It is totally inappropriate and amounts to invasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution.

Supreme Court: Partially upholding the validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and the Rules made thereunder, the bench of Dr. AK Sikri and Ashok Bhushan held that the State must have an “open mind” in matters relating to staging dance performances in dance bars. It said:

“State cannot take exception to staging dance performances per se. It appears from the history of legislative amendments made from time to time that the respondents have somehow developed the notion that such performances in the dance bars do not have moralistic basis.”

The Court, however, upheld the following provisions:

1. Provision disallowing throwing or showering coins and currency notes on the performers.

2. Provision relating to employer and performer entering into a written contract as well as depositing of the remuneration in the bank accounts

3. Provision prescribing timing of such dance performances only between 6 pm to 11:30 pm

Before parting with the judgment, the Court also noticed that many conditions were stipulated in the Act for obtaining the licence, which are virtually impossible to perform. On this, the Court said:

It is this reason that not a single establishment has been issued licence under the impugned Act even when it was passed in the year 2014. In fact, after the amendment in Maharashtra Police Act in 2005, no licences have been granted for dance bars. Thus, even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars. The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced.”

The SC’s judgment on bar dancers arrives at an unsatisfactory halfway house: it lifted some of the most draconian restrictions on the basis that constitutional rights were being violated, but failed to take its own constitutional reasoning to its logical conclusion. The judgment — as mentioned above — provides a breather, but also leaves wide loopholes for continued exploitation by the police and the government.

The Court said that it hoped that after this judgment, the applications for grant of licence shall now be considered more objectively and with open mind so that there is no full ban on staging dance performances at designated places prescribed in the Act.

Author Details: Ayush Chaurasia (National Law University, Jabalpur)

The views of the author are personal only. (if any)

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