– by Shruti Sinha
In the Supreme Court of India
|NAME OF THE CASE||Indian Hotel and Restaurant Association & Anr. v The State of Maharashtra & Ors.|
|CITATION||Writ Petition (Civil) No. 576 of 2016|
|DATE OF JUDGEMENT||January 17, 2019|
|PETITIONER/APPELLATE||Indian Hotel and Restaurant Association (AHAR) and Anr.|
|RESPONDENT||The State of Maharashtra and Ors.|
|JUDGE/BENCH||Justice A.K. Sikri, Justice A Bhushan|
|CONSTITUTION/STATUTES INVOLVED||Constitution of India, 1949; The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016|
|IMPORTANT ARTICLES/SECTIONS INVOLVED||Constitution Art. 14, 15, 19(1)(a) and (g), 21; Section 2(8)(i), 6(4), 8(1)-(2), 8(4) of The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016|
Three Writ Petitions had been filed, under Article 32 of the Indian Constitution, by an Association of various hotel and bar owners, the R.R. Patil Foundation and the Bhartiya Bargirls Union respectively, challenging the provisions of the impugned Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 (hereinafter, the ‘Prohibition Act’) and the Rules framed thereunder (hereinafter, the ‘Prohibition Rules’) for the encroachment on the fundamental rights of the Petitioners mandated by the Constitution of India under Articles 14, 15, 19(1)(a), 19(1)(g) and 21.
The case of Indian Hotel and Restaurant Association v The State of Maharashtra had dealt with the constitutional validity of the impugned legislation introduced by the Maharashtra Government with the intent to curb obscene behaviour and prostitution crimes at bars, hotels, and other such public amusement establishments in the State. These statutes, however, had also encroached upon several fundamental rights of the Petitioners who had met their livelihood within this business. The Apex Court had critically examined the scenario and had given this progressive judgement, protecting the interest of the public.
In 2005, the Maharashtra State had amended the Maharashtra Police Act, 1951, inserting two new sections therein whereby Section 33A had prohibited dancing performances at eating houses, permit rooms, beer bars, etc. while Section 33B had provided for an exception to this, permitting such performances at three-star hotels or theatres and clubs with members-only entry. This move had led to discrimination within the business and consequent unemployment, hence the amendment had been challenged before Bombay High Court where these changes had gotten annulled, and the Supreme Court had also supported this judgement in the repealing case of State of Maharashtra v Indian Hotel and Restaurant Association.
A year later, in 2014, the Maharashtra State had introduced not only the Maharashtra Police (Second Amendment) Act, 2014 which included the prohibitions of the previous Section 33A but without the exceptions of Section 33B, but also the Prohibition Act, 2016 and its Prohibition Rules, creating further such restrictions.
- Whether the provisions of the Prohibition Act and Rules violate the fundamental Right to Equality under Articles 14 and 15 of the Constitution?
- Whether the stringent conditions for obtaining the licence and the complete ban on serving alcohol restrict the Right to Trade under Article 19(1)(g) of the Constitution?
- Whether the provisions of the Prohibition Act and Rules contravene that of the Indian Penal Code, 1860?
- Whether the installation of CCTV cameras in bars violates the Right to Privacy under Article 21 of the Constitution?
Arguments from the Petitioner side
- Learned Counsel on the behalf of the Petitioners had submitted that the Respondent-State seeks to impose an absolute ban on dance performances at bars, hotels, etc. as had been evident from its conduct since the Amendment Act, 2005 – the State had not granted any licences even after the said amendment had been struck down by the Court; furthermore, the State had also introduced the impugned statutes that are colourable legislation trying to frustrate the judgement of the Court.
- Learned Counsel had further submitted that the impugned legislation had actually led to a result quite opposite to what it had aimed for – “instead of creating fresh job opportunities for women it takes away whatever job opportunities are already available to them.”2
- It had also been submitted that the reasoning of the Respondent-State that such dances arouse indecent behaviour held no merit as lust is a subjective reaction. Learned Counsel had observed that the definition of ‘obscene dance’ as per Section 2(8)(i) of the Prohibition Act had been “totally vague”2 and “totally loose expression incapable of any precise meaning”2 as different people get different feelings seeing the same act.
- Another reasoning by the Respondent that these dancers had been trafficked into prostitution had also been declared baseless as per the statements given by the dancers themselves that they had come into the business through community, street word, and so on; in fact, on the contrary, many of them had stated that they had previously been engaged in sex work but had joined dancing to lead a more dignified and safer life. Moreover, the State did not have any reliable data to back up its claims.
- It had also been submitted that the provisions of the Prohibition Act had been violative of the Right to Equality given by Art. 14, 15 of the Indian Constitution as licences had been granted to discotheques or orchestras but not to dance bars and the like.
- It had further been submitted that the practise of giving money to dancers was the same as giving ‘bakshish’ or tipping a waitress and it shall be unreasonably discriminatory to ban one and allow another.
- It had also been submitted that Section 8(2) of the Prohibition Act contravened the Indian Penal Code, 1860 where Section 294 had already punished for the offence of obscenity, and in such conflict between the Centre and the State legislature, the Central law shall prevail.
- It had been argued that Condition 11 of Part A of the Prohibition Rules cannot be adhered to because, in a congested city like Mumbai, educational and religious institutes existed within every 1km of the city, therefore such a criterion shall be impossible to fulfil and unfairly restrict business.
- It had also been contended that the curfew under Condition 9 of Part B was discriminatory when discotheque, orchestra, and liquor bars were allowed to be open till 1:30 am.
- It had also been argued that the installation of the CCTV cameras as per Condition 20 of Part B had been violative of the Right to Privacy which is a fundamental right as declared in K.S. Puttaswamy v Union of India.
Arguments from the Respondent side
- Learned Counsel on the behalf of Respondent had argued that the definition of the term ‘obscene dance’ mentioned in Section 2(8) of the Prohibition Act held a definite meaning and such was also acknowledged in Section 292 of the IPC.
- It had been argued that even if lust is subjective for everyone, there are different averages in different cultures for what they may consider obscene and the relevant context shall be referred to for the censorship of the actions that offend the prevalent sexual morality.
- It had been observed that there had been no violation of equality between bars and discotheques because the very rationale had been that there was no dance at the latter.
- It had also been observed that in the cultural context, showering money on a risqué dancer held a different connotation than simply tipping a bartender and both cannot be treated as one and the same thing.
- It had further been contended that Section 8(2) shall be read with Section 8(1) of the Prohibition Act which made it a separate offence distinct from IPC Section 292.
- It had also been stated that the laws were not encroaching upon any Fundamental Right to Freedom under Art. 19 as it is subject to the interest of public order, decency or morality.
- It had been further stated that similarly, no Right to Trade under Art. 19(1)(g) had been breached as the principle of res extra commercium applies.
Constitution of India, 1949
Article 14. Equality before law— The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
- The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
- No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
- access to shops, public restaurants, hotels and palaces of public entertainment; or
- the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
- Nothing in this article shall prevent the State from making any special provision for women and children
- Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
Article 19. Protection of certain rights regarding freedom of speech etc.
- All citizens shall have the right
- to freedom of speech and expression;
(g) to practise any profession, or to carry on any occupation, trade or business
Article 21. Protection of life and personal liberty— No person shall be deprived of his life or personal liberty except according to procedure established by law
The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016
Section 6(4). Notwithstanding anything contained in the Maharashtra Police Act, no licence shall be granted for Discotheque or Orchestra, in the place for which the licence under this Act is granted, nor a licence shall be granted under this Act for the place for which a licence for Discotheque or Orchestra has been granted.
Section 8. prescribes criminal and civil consequences for using the place in contravention of Section 3 i.e. without obtaining the licence. It is to the following effect:
- The owner or proprietor or manager or any person acting on his behalf, shall not allow any obscene dance or exploit any working woman for any immoral purpose in any place and the person committing such act shall, on conviction, be punished with imprisonment for a term which may extend to three years or a fine which may extend to rupees ten lakhs, or with both; and in case of continuing offence, further fine which may extend to rupees ten thousand for each day during which the offence continues.
- No person shall throw or shower coins, currency notes or any article or anything which can be monetized on the stage or hand over personally or through any means coins, currency notes or any article or anything which can be monetized, to a dancer or misbehave or indecently behave with the working women or touch her person, in any place. Any person who commits such act or abets the commission of such acts shall, on conviction, be punished with imprisonment for a term which may extend to six months or a fine which may extend to rupees fifty thousand, or with both.
The Hon’ble Supreme Court had prima facie approved the new State legislation but had also added a few improvements therein to uphold the interests of everyone involved. It had acknowledged the term ‘obscene dance’, mentioned in Section 2(8)(i) of the Prohibition Act and IPC Section 292, and the punishment thereof had also been held to be distinct from IPC Section 294; however, it had dissented from the perception of the State that dancing at such public entertainment establishments had led to the corruption of morals or the facilitation in sex trafficking crimes, opposite of which had actually been reflected in the studies conducted by various organizations including the SNDT University, Mumbai. In that view, there cannot be an absolute ban on dancing as instead of protecting vulnerable women, this action shall deprive them of their livelihoods which is what may instead push them towards the depraved resources.
The Apex Court had referred to State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat to reason that the standard of restriction ought to be in proportion such that any lesser alternative shall prove to be inadequate to it. Thus, it had also set aside the complete prohibition on alcohol and had relaxed the terms for obtaining the license of the said establishments. The Hon’ble Court had acknowledged that freedom is not absolute and subject to reasonable restrictions, however, those restrictions shall not be impossible to adhere to, or else it shall not be reasonable, thus striking down the need for the establishment to be 1km away from the religious or educational institution as these conditions had been restrictive to Article 19(1)(g).
The Court had allowed the curfew to stay and the cameras shall be installed at the entrance of the bars but not the inside. It had further held that the practice of giving extra money to performers had been an age-old practice, prevalent in many arenas like theatre, tamasha, circus, etc. aside from just dancing, hence the dancers could be tipped by giving the money to the staff. It had declared that even though the State Government had apparently enacted the provisions for the welfare and protection of vulnerable women, there had been no empirical evidence to back up its perception and claims of the dance performances being immoral and predatory, hence the Supreme Court had aptly considered the entire spectrum and had given its judgement accordingly.
It is the duty of the government to protect its citizens from crimes, and for that purpose, it has been equipped with the power to make laws for public welfare, but sometimes, such intent may clash with the interest of the very public and create a conflict where no one is essentially at fault. In such cases, it is the judiciary that shall be apt to judge and provide a remedy. The present case is an example of the progressive judgement given by the Apex Court where it had duly considered all the interests at stake and given an appropriate judgement to harmoniously balance them.
 Author is a 1st Year Student of Government Law College, Mumbai
 Indian Hotel and Restaurant Association v The State of Maharashtra, 2019 (3) SCC 429
 State of Maharashtra v Indian Hotel and Restaurant Association & Ors., (2013) 8 SCC 519
 K.S. Puttaswamy & Anr. v Union of India & Ors.
 The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, Act No. XII of 2016 (India)
 State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534