The bench comprising Justices AK Sikri and Ashok Bhushan considering the submissions about ‘morality’ made by the Maharashtra State Counsel Senior Advocate Shekhar Naphade made a judgement “A practice which may not be immoral by societal standards cannot be thrust upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control'”
INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR. …..APPELLANT(S)
THE STATE OF MAHARASHTRA & ORS. …..RESPONDENT(S)
Facts of the case
Filing of the aforesaid writ petitions are The Bombay Police Act, 1951 was enacted in the year 1951 with the object of consolidating and amending the law relating to the regulation of the exercise of powers and performance of the functions by the State Government for maintenance of public order. Section 33 of the Act authorises the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas &Tamashas
In 2005, the outright ban on dance bars by the Maharashtra government had encroached upon the livelihoods of many young girls and pushed them into a cauldron of poverty and helplessness. What should we call it? An overreaction or lack of thinking? These two terminologies have been used by the apex court when it itself observed that rather than searching for viable alternatives for women, the ban has resulted in large-scale joblessness among them.
On June 1, 2005, the State government passed a bill to introduce sections 33A and 33B which prohibited ‘any type of dancing’ in an “eating house, permit room or beer bar” while allowing dance performances in three-star and above hotels and other ‘elite’ establishments. On August 15, 2005, The Bombay Police (Amendment) Act, 2005, came into force. All dance bar licences stood cancelled.
Then a petition was filed against the ban by India Hotel & Restaurant Association, a host of NGOs and the Bhartiya Bargirls Union in the Mumbai High Court. The High Court set aside the ban in 2006 stating the ban as ‘void’ in law and held it was ‘not in public interest.’
The state government had sought to justify that the dance bars had morphed into institutions which promoted “complete objectification and dehumanization of young women”. The State government forgot to think of the aftermath when it ordered to shut down the city night-light of the dance bars and prohibit women from continuing their dancing profession. After the ban in 2005, it had resulted in an increase in trafficking and many women were found indulging into prostitution.
The State moved to the Supreme Court which on 16th July 2013 upheld High Court judgment and quashed dance bar ban. Deciding on the constitutionality of the ban on dance performances in bars in Maharashtra imposed under The Bombay Police (Amendment) Act of 2005, the apex court gave its order in favour of the bar owners and dancers’ union who had contended that the ban on bar dances in some establishments while permitting them in others was contrary to the rule of equality enshrined in Article 14.
Dancing had always been a tradition in our country since ancient India and during the Mughal period. Nowadays, it is used as entertainment as well as a profession. Those women who use it as a profession cannot be restrained from doing the same because they have a fundamental right under Article 19(1)(g) of the Indian Constitution. If there is an increase in prostitution or trafficking the State government must focus on that issue and try to take appropriate step. Rooting out the whole plant is not going to eradicate problems but on the contrary, it would help to fuel other problems.
For example, when fatal accidents were on the rise because of the recklessness of drunken drivers, driving while drunk was held as being criminal and punitive measures had also been framed. But rather than limiting such crimes if we ban the distribution of alcohol, that is not just and further, it would lead to black marketing of drinks. Similarly, banning on the dance bars by the Maharashtra government was not proper or fair which reflected lack of thinking on their part.
Justice SS Nijjar said while authorizing the main judgment in State of Maharashtra & Anr. v. Indian Hotel & Restaurants Assn. & Ors. :
“The restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure the safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the state is the safety of women.”
The Supreme court bench, referring to earlier judgments in this regard, said: “It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling (though that is also becoming a debatable issue now), prostitution etc. It is also to be noted that standards of morality in a social change with the passage of time. A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in the social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral. Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances. However, a practice which may not be immoral by societal standards cannot be thrust upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control'” While quashing the condition imposed that the liquor cannot be served at such places where dances are staged, the bench said that such stipulations are totally disproportionate, unreasonable and arbitrary.