This article has been written by Itika Sindwani, pursuing the Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research And Editing Jobs from LawSikho.
Let us go in a flashback when in 2005 Maharashtra government amended the Bombay Police Act, 1951. By amendment, Section 33A and Section 33B were inserted in the act which prohibits dance performances in the eating areas and bars with a proviso which says such dance practices are permitted in three-star hotels. As a consequence of these amendments, too many dance performers lost their source of livelihood and became unemployed. And, because of loss of employment and discrimination between three-star hotels and others, petitions were filed under Article 226 in Bombay High Court challenging that these amendments violate the fundamental rights under Article 14 (right to equality), Article 15 (gender discrimination), 19(1)(a) (freedom of speech and expression), 19(1)(g) (right to practice any occupation) and Article 21(Right to life and personal liberty). The Bombay High Court in its judgement held that these new amendments are unconstitutional as there is an invasion of fundamental rights of the individual. But, Maharashtra government was not happy with the decision and the appeal was filed by the Maharashtra government in Supreme Court. Maharashtra government argued that they took such steps to protect the dignity of women. But, Apex court affirmed the decision given by the Bombay High Court. Supreme Court in this case even held this that Dancing is a fundamental right guaranteed under Article 19(1)(a) . SC urged the government if their sole purpose is the safety of women then they should try to find alternatives to ensure the safety and dignity of women instead of prohibiting dancing.
Thus, after this judgement Maharashtra government came up with Bombay Police (Second Amendment) Act, 2014 along with new legislation- Maharashtra government also introduced Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016.
After this, three petitions were filed and the main respondent in all petitions was the State Of Maharashtra. All petitions were heard together and disposed of by the single judgement by a bench of two judges consisting Justice Ashok Bhushan and A.K, Sikri:
- After the judgement of July 10, 2013, in case of State Of Maharashtra & Anr. Vs. Indian Hotel & Restaurants Assn. & Ors. Maharashtra Government came up with the new legislations which were based on the amended sections of the Bombay Police Act,1951. (Section 33A and Section 33B)
- Maharashtra government’s new legislation contains the provisions which were very strict in nature. Some of the provisions are mentioned below ( for full act PROHIBITION OF OBSCENE DANCE IN HOTELS, RESTAURANTS AND BAR ROOMS AND PROTECTION OF DIGNITY OF WOMEN (WORKING THEREIN) ACT, 2016 )
- Under this Act, to start any hotel, restaurant or any place where their dances have staged a person must obtain a licence under this act while following all the terms and conditions mentioned in this act.
- The licence can be granted only after the satisfaction of the authorities regarding the work conditions and provisions for safety for the women staff along with the people visiting the place. (Besides this, owners have to take a licence from other authorities too as earlier).
- The licence can’t be granted under this act if licence for discotheque or orchestra has been granted by Maharashtra Police Act and vice versa.
- Harsh Criminal and civil consequences must be there if any person does such business without licence. On conviction, a person can be punished with imprisonment for a term which may extend to five years or fine which may extend to rupees twenty-five lakhs, or with both. But, if there is a case of a continuing offence, a further fine of rupees twenty-five thousand for each day during which the offence continues.
- Owner or manager must not allow obscene dance performances or anything that is immoral in nature in any place. If any person found committing such act must be punished with imprisonment which may extend to three years or a fine which may extend to rupees ten lakhs, or with both. And, in case of continuance of such offence convicted shall be further charged with fine which may extend to rupees ten thousand for each day.
- No person is allowed to shower currency notes or coins on the dance floor or hand over personally to the dancer. Misbehaviour or indecency can’t be tolerated against any female worker. If any person does so he shall be punished with imprisonment which may extend to three months or with fine which may extend to twenty five thousand rupees or both.
- There are many terms and conditions which are to be followed in both the scenarios, i.e., before and after the licence is granted.
Some rules were also specified under the legislation, some of them are mentioned below:
- Such a place must be 1 kilometre away from religious and educational institutes.
- Fixed timings for public in bars, i.e. from 6.00 p.m. to 11.30 p.m.
- No alcoholic drinks are to be served in bars with dance stages.
- There should not be any alteration in the premises of such place without the consent of licensing authority.
- CCTV’s must be installed at the entrance along with the places of public entertainment.
- Working women, dancers, waitresses must be employed under a written contract and monthly salary to be deposited in their bank accounts.
- While granting licence it must ensure that person is possessing good character with no past criminal conviction.
- Because of this legislation there was a complete ban of dance in beer bars of the state which violates the fundamental rights under Article 14, 15,19 and 21 of Indian Constitution.
- Stringent conditions imposed by the government for obtaining the licence. Then how one should be able to enjoy his right under section 19(1)(g) , i.e. freedom to practice any profession, occupation or trade.
- Complete ban of alcoholic drinks in bars.
- Harsh punishments under this new legislation although punishment related to obscene act is already mentioned in Indian Penal Code, 1860. Isn’t it a violation of Article 14?
- Installation of CCTVs in bars infringes an individual’s right to life and personal liberty guaranteed under Article 21.
In this case, the Supreme Court upheld this new legislation with some alterations.
It was held that:
- There can’t be the total prohibition of dance in beer bars.
- The Supreme Court relaxed the terms and conditions associated with the grant of licence.
- A complete ban on serving of alcoholic drinks was also prohibited as it is considered disproportionate and arbitrary.
- Considering the famous K.S. Puttaswamy judgement, installation of CCTV cameras were allowed only at the entry of the beer bars.
- Condition of opening such places 1km away from educational and religious institutes was also removed as it infringes Article 19(1)(g).
- Showering of currency notes and coins was prohibited in dance bars while allowing that tip can be given by customers to the staff.
- Timing mentioned in this act was considered fine as it seems enough to the court.
- Court made it compulsory that there must be a written contract with the employees and wages are to be transferred in a bank account every month. Such contracts are to be deposited to the licensing authority.
- Obscenity is already punishable under Indian Penal Code, 1860 so any other law giving punishment for the same leads to the invasion of Article 14 of Indian Constitution.
This is the progressive judgement given by the Supreme Court. All the issues are resolved by critically examining the constitutionality of the provisions mentioned in the legislation while hearing the point of views of both the petitioners and defendants. The Supreme Court upheld Maharashtra’s government act by diluting some of its provisions so that everyone should enjoy their fundamental rights.
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