INDIAN HOTEL AND RESTURANT ASSOCIATION v. STATE OF MAHARASTRA

INDIAN HOTEL AND RESTURANT ASSOCIATION v. STATE OF MAHARASTRA

AIR 2019 SC 24

Court: Supreme Court of India

Bench: Justice A. Sikri and Justice A. Bhushan

Date of Judgment: 17th January, 2019

Parties:

Petitioner: Indian Hotel & Restaurant Association & Ors

Respondent: State of Maharashtra

INTRODUCTION

The Maharashtra Government in 2005 imposed a ban on bar dancers all over the state. Such a ban resulted in the fate of over 75,000 women who worked in bars as dancers for livelihood. Later, Maharashtra government in 2016 came up with two legislation Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar rooms and protection of the dignity of women (Working therein) Act 2016 and Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar rooms and protection of the dignity of women (Working therein) Rules 2016. The rules and conditions according to new legislation was so stringent that it was difficult for bar owners to fulfil. The main aim of the state government was to protect women dignity and obscenity. Women working in bar as dancers for livelihood was just a side of a coin there also existed illegal business such as trafficking of women’s overseas, rape, prostitution and so on.

A special leave petition was filed by petitioner (AHAR) before the Supreme Court regarding the constitutional validity of ban by state government against dance performance in bars across Maharashtra. The court in its decision focused on the constitutional rights to carry on any profession or occupation and to equality. The court addressed the issue of women empowerment.

FACTS

• In the year 2005, the Maharashtra government amended the Bombay Police Act,1951 with the object of securing public order, the dignity of women, and reducing exploitation of women which included trafficking of minor girls. Two sections were inserted into the act under section 33A it prohibited the performance of all types of dances in eating houses, beer bars, or permit rooms. Under section 33B it permitted three-star hotels and Government Association places of entertainment to hold dance performances. The public rationale offered was that performances were obscene and morally corrupt. All dance performance licenses were canceled with immediate effect resulting in unemployment.

• AHAR filed a writ petition challenging Section 33A of the Bombay Police Act, 1951 before the Bombay High Court. On the ground that it is discrimination against the women employed to dance in eateries and bars and interferes with their right to work and right to earn a livelihood, this is a violation of the Indian Constitution.

• It was held by the Bombay High Court that Section 33 of the Bombay Police act violates Article 14 and Article 19(1)(g) of the Indian Constitution.

• The Government of Maharashtra in its appeal before the Supreme Court with the contention that the term “All dance” in section 33A be read down as “dances which are obscene and derogatory to the dignity of women” so while the court strikes off the provision it must also ensure the right of work of women has not interfered.

• The Supreme Court upheld the judgment of the Bombay High Court.

• The Respondent swiftly and cleverly came up with 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 similar and abiding 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 no one could fulfill them. This resulted in the situation that to date no license had been issued to any of the establishments.

• Under Article 32 of the Constitution of India three writ petitions were filed, namely, WRIT PETITION (CIVIL) NO. 576 of 2016, WRIT PETITION (CIVIL) NO. 24 of 2017 and WRIT PETITION (CIVIL) NO. 119 of 2017 in the Supreme Court of India challenging the same. Since all three Writ Petitions had raised similar issues and prayers, they were heard together and disposed of by a common judgment

ISSUES

• Whether sections of Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar rooms and protection of the dignity of women (Working therein) Act, 2016 and Condition of Rule 3 of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar rooms and protection of the dignity of women (Working therein) Rules, 2016 violates fundamental rights of petitioners under Article 14, 15, 19(1)(a)(g) and 21 of Indian Constitution?

• Whether right to occupation and profession of bar owner and bar dancers were violated under fundamental rights of Indian Constitution?

Following are the sections and conditions which are mentioned above in Acts and Rule in issue which violated Articles of India Constitution

ACTS:

• Section 2(8)(i): It delivered 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 a loose expression.

• Section 6(4) It barred the grant of license under the Act in respect of a place where a license for discotheque or orchestra is granted.

• Section 8(2) provides punishment for contravening Section 6(4)

• Section 8(4) activities such as throwing or showering of coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such things to a dancer as an offense

RULES

PART A

• Condition 2: It stated that one stage should not be less than 10ft. x 12ft.in size in a barroom, with non- transparent partition between hotel, restaurant, and barroom area. If the applicant is holding a permit room license, then there shall be fixed partition between the permit room and dance room

• Condition 11: It stated that such dance bars should be at a distance of 1km from educational and religious institutions.

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 barroom, where dancers were staged, shall be open for public only between 6:00 PM to 11:30 PM

• Condition 12: it stated that no alcoholic beverage shall be served in the barroom 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 o 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 a public place shall be covered by CCTV cameras and recording shall be preserved for 30days

JUDGMENT

• The Apex court considered its decision in case of 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 a vague term, incapable of definite connotation. The court said, “it is, more so, when section 292 of IPC particularly uses this expression in deeming provision relating to obscenity”. Therefore Section 2(8)(i) stood valid.

• Section 6(4) in the court’s view was arbitrary and irrational and had no nexus with the so-called purpose sought to be achieved. It was stuck down as being unconstitutional.

• The offense under section 8(2) was declared different from the offense that is stipulated in section 294 IPC. It was held valid.

• Section 8(4) read with condition No 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. However, this provision stood valid. Adding to it, the court stated further, the state cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer or visitor. Therefore, the provision of giving tips only by adding on bills was stuck down.

• Condition 11 of Part A was held arbitrary and unreasonable and was quashed, with the liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.

• Condition 2 of Part B the court upheld one part of the provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts but struck down condition of employing such person on monthly salary because it imposes a restriction upon such employees and infringes their right under Article 19(1)(g).

• The court did not find the timing mentioned in condition 9 of Part B to manifestly unreasonable.

The court quashed condition 12 of Part B stating that it is disproportionate, unreasonable, and arbitrary. The court was not convinced by the Respondent argues that people after consuming alcohol would misbehave with the dancers.

The Court also set aside Condition 20 of Part B that mandates installing of CCTV cameras as this again was inappropriate and amounted to an invasion of privacy and was, thus, violates of Article 14, 19(1)(a) and 21 of the constitution was held in K.S Puttaswamy Case (2017)

CONCLUSION

The new law by the state government of Maharashtra was not leading a total prohibition as feared by dance bar owners. The government came up with certain conditions to protect women’s dignity in society and to stop anyone below 21 years of age to enter the dance bar nor to perform as a dancer below this age. As highlighted in news and articles more than 75,000 women were into this profession and after state implementation of such conditions have lost their jobs.

Everybody has the right to work for their livelihood but protecting women’s dignity is necessary to save society. Similarly, every person has a right to work in a dignified and safe surrounding rather not for someone’s amusement. In India, maximum reports and articles say a woman who gets into professions like prostitution, dancers or any other obscene job for which they have to hide their identity as to what job they do to earn a livelihood is by compulsion and not by choice. Crime against women is alarming in number. They should be saved and have the right to live a dignified life by working from choice and not by compulsion.