Court: Supreme Court of India
Coram: J. A.K. SIKRI, J. ASHOK BHUSHAN
Theme: How far had Maharashtra Prohibition of Obscene Dance and Protection of Dignity of Women (Working therein) Act, 2016 and Maharashtra Prohibition of Obscene Dance and Protection of Dignity of Women (Working therein) Rules 2016 had worked in favour of the dance bar establishments and the people working therein.
Subject: Constitutional law
BRIEF FACTS OF INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR. V. THE STATE OF MAHARASHTRA
To begin with, in 2005 the Maharashtra government had imposed a ban on dance performances in bars with the exception of hotels rated in 3 stars and above, as provided for, under section 33 A and 33 B of the Bombay Police Act. The Public rational offered was that these performances were obscene and morally corrupt. All the dance performance licences were cancelled with the immediate effect resulting in unemployment of approx. 75,000 women workers which led the affected parties to file petitions in the Bombay High court. The high court gave judgement against the government which led to appeal in the Supreme Court. In 10 July 2013 the Supreme Court affirmed the high court’s order.
But the respondents instead of abiding by with the superior court’s order, had swiftly and cleverly come up with 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, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 which had provisions on the same lines as that of the section 33A and 33B of the Bombay Police Act.
The provisions of the said Act and the conditions mentioned in the said Rules were so stringent that it was impossible for anyone to fulfill them. This resulted in the situation that till date no license had been issued to any of the establishments. Therefore, three writ petitions were filed under Article 32 of the Constitution of India, namely, WRIT PETITION (CIVIL) NO. 576 OF 2016, WRIT PETITION (CIVIL) NO. 24 OF 2017 and WRIT PETITION (CIVIL) NO. 119 OF 2017 before the Supreme Court of India challenging the same. Since this batch of three Writ Petitions had raised similar issues and prayers, they were heard together and disposed by a common judgment.
ISSUES IN INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR. V. THE STATE OF MAHARASHTRA
Following sections of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and conditions of Rule 3 of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 were challenged as being violative of fundamental rights of the petitioners under article 14, 15, 19(1)(a), 19(1)(g) and 21 of the Constitution of India:-
1. Section 2(8)(i): It was concerned with the definition of ‘obscene dance’. The issue was that it includes ‘a dance which is designed only to arouse the prurient interest of the audience’ which was totally a loose expression.
2. Section 6(4): It barred the grant of licence under the Act in respect of a place where licence for discotheque or orchestra is granted.
3. Section 8(2): It provided punishment for contravening section 6(4).
4. Section 8(4): It made throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such things, etc. to a dancer as an offence.
1. Part A
- Condition 2: It stated that one stage should not be less than 10ft. x 12 ft. in size in bar room, with non-transparent partition between hotel, restaurant and bar room area. If the applicant is holding permit room licence then there shall be fixed partition between the permit room and dance room.
- Condition 11: It stated that such dance bars should be at the distance of 1 km from the educational and religious institutions
2. Part B
- Condition 2: It stated that working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary to be deposited in their bank accounts.
- Condition 6: It prevented the customer to throw or shower coins, currency notes or any article or anything which can be monetized on the stage in the direction of the dancer.
- Condition 9: it states that bar room where dances were staged shall be open for public only between 6.00 P.M. to 11.30 P.M.
- Condition 12: It stated that no alcoholic beverage shall be served in the bar room where dances are staged.
- Condition 16: It stated that the licensee shall ensure that the employees have no criminal antecedents.
- Condition 17: It stated that the licensee shall not allow any modification or alteration in the premises without the permission of the licensing authority.
- Condition 20: It stated that the Licensee shall ensure that the areas which fall under the definition of public place shall be covered by CCTV cameras and recording shall be preserved for 30 days
IMPORTANT ARGUMENTS BY THE PETITIONER
1. Section 6(4) of the Act was violative of article 14 and 19 (1) of the Constitution of India. The purport behind this provision was to see that there would not be a license for a place, both for dance bars and discotheque or orchestra, at the same time. It was submitted that there was no rational behind such a provision based on intelligible differentia.
2. It was argued that obscene dance that amounts to obscenity is already an offence under Section 294 of the Indian Penal Code (IPC) and is punishable with imprisonment which may extend to three months. It was further argued that such a provision (section 6(4) of the Act) was not only arbitrary and violative of Article 14, there was a clear conflict between the central law (i.e. the IPC) and the State Act (the impugned Act). Therefore, the section of the impugned act needed to be struck down.
3. It was argued that the prohibition under section 8(4) was only qua the dancers and not singers or waitresses. Contention was that giving such things to a dancer only amounts to tipping her on appreciation of her performance which was the same thing as appreciating a singer for her performance or a waitress for her service and there was absolutely nothing wrong about it and such an act cannot be made an offence. It was, therefore, manifestly arbitrary and violative of Article 14.
4. Condition no. 2 of part A was challenged to be contrary to the order dated March 02, 2016 passed in Writ Petition (Civil) No. 793 of 2014.
5. It was argued that condition 11 of part A was not possible to be fulfilled because in a congested city like Mumbai where educational and religious institutions existed within 1 k.m. from each and every building.
6. Regarding Condition No.6 it was argued that the State cannot impose a condition that an amount of tip has to be necessarily added in the bill.
7. Timings of the dance bars stipulated in Condition No. 9 of Part B was challenged on the ground that it does not serve any purpose. Moreover, on the other hand, discotheque or orchestra and liquor bars are allowed to be open till 01:30 a.m.
8. Condition 20 of part B was argued on the ground that requirement for having CCTV cameras at such places will have chilling effect, which was also violative of the right to privacy that is now declared as a fundamental right in K.S. Puttaswamy and Another v. Union of India and Others (2017 10 S.C.C 1).
IMPORTANT ARGUMENTS BY THE RESPONDENT
1. Section 2(8) of the Act which defines ‘obscene dance’ was defended by arguing that the expression ‘prurient interest’ has a definite connotation in dictionary and this expression finds presence in Section 292 of the IPC as well which makes obscenity as an offence.
2. It was argued that Section 8(2) has to be read along with Section 8(1) of the Act.
Section 8(1) makes the Act of using the place in contravention of Section 3 as punishable offence. In that sense, it was argued, Section 8(2) is a separate offence prescribed in a separate law that is under the Maharashtra Act which is distinct from Section 292 IPC.
3. In respect of Section 8(4), it was defended with the submission that it is a matter of cultural ethos of the society. In this vein, it was further said that such a provision was that showering money is a method of inducement which has to be checked. According to the respondents, Section 354A of IPC which is a moral code of the society and the State is only attempting to preserve this moral code by enacting such a provision.
4. Regarding Condition No. 11 of Part A it was argued that it is a matter of policy and is the prerogative of the law maker to fix the distance.
5. Regarding Condition No. 2 of Part B, submission of the respondent was that it is based on economic reality that there is an exploitation of such working class and, therefore, the rule maker rightly laid down the condition that the working women must be employed under a written contract on a monthly salary which needs to be deposited in their bank accounts.
6. Regarding Condition No. 20 of Part B, specific submission was that right to privacy comes to an end when there is a possibility of commission of trying and this clause aimed at preventing such a crime.
JUDGEMENT: INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR. V. THE STATE OF MAHARASHTRA
1. Considering the decision of the court in Raj Kapoor & Ors. v. State & Ors. (1980 SCR (1)1081) the court held that it cannot be said that a dance which is aimed at arousing the prurient interest of the audience is vague term, incapable of definite connotation. The Court said, “It is, more so, when Section 292 IPC particularly uses this expression in the deeming provision relating to obscenity”. Therefore section 2(8)(i) stood valid.
2. Section 6(4) in the court’s view was totally arbitrary and irrational and had no nexus with the so-called purpose sought to be achieved. It was therefore stuck down as being unconstitutional.
3. The offence under Section 8(2) was declared somewhat different from the offence that is stipulated in Section 294 IPC. Therefore, this section was held to be valid.
4. Section 8(4) has to be read with condition Nos. 6, 7 and 8 of Part B. It was held that whatever money, any appreciation of any dance performance, has to be given by handing over personally and not by throwing or showering such coins etc. Therefore, provision for throwing or showering of currency stood valid. However, adding such tips thereto in the bills would deny rightful recipient of the same. Further, 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. Therefore, the provision of giving the tips only by adding the same in the bills was struck down.
5. A condition similar to Condition 2 Part A, was struck down by this Court earlier. Even otherwise, there was rationality or justification in imposing such a condition therefore, this provision was again struck down.
6. As far as condition No.11 of Part A was concerned it was held to be arbitrary and unreasonable and was quashed, with liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.
7. In regards to Condition 2 part B the court upheld the provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts but struck down the condition of employing such persons on monthly salary because it imposes restriction upon such employees and infringes their right under Article 19(1)(g).
8. The court did not find the timing mentioned in condition No. 9 of Part B to be manifestly unreasonable. The ground that other establishments are open till late does not restrict the power of State to restrict the time of dance performances till 11:30 pm. Moreover, appropriate time of five and half hours was given for such performances. This condition was therefore upheld.
9. The Court quashed Condition No. 12 of Part B stating that it is totally disproportionate, unreasonable and arbitrary. The court was not convinced by the respondent’s argument that persons after consuming alcohol would misbehave with the dancers. Moreover, courts have also earlier set aside the same contention when applied to the bar rooms and restaurants.
10. The Court also set aside Condition No. 20 of Part B that mandates installing of CCTV Cameras as this again was totally inappropriate and amounted to invasion of privacy and was, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution as held in K.S. Puttaswamy case (2017 10 S.C.C 1).
PRESENT STATUS OF THE JUDGMENT:
Contributed by: Phalguni Garg