Indian Hotel and Restaurant Association
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This article is written by Pratham Joshi.

Introduction

There are three organs of the government that work for the prosperity and welfare of the nation namely the Judiciary, legislature and Executive. From them the law-making power is in the hands of the legislature who passed certain laws for the welfare of the nation and in order to protect the fundamental rights which are guaranteed under Part 3 of the Constitution of India, that laws are then interpreted by the Judiciary that whether the laws are infringing any of the provision of the Constitution of India or not and at last are implemented by the executive in order to maintain law and order in between people. There are certain bodies of the government in rural and urban areas like Taluka, Nagarpalika and Municipal Corporation. Municipal Corporations are responsible for the development in the urban cities with a population of more than one million. Bombay Municipal Corporation( hereby referred to as BMC) is the local body responsible for the development in Mumbai and carry out different functions within their jurisdiction.

There are certain numbers of local laws that are to be followed by the people entering into the jurisdiction of Mumbai as “No Knowledge of law cannot be considered as excuses” in India. Certain laws are passed by the State legislature of Maharashtra applicable to the territory of Maharashtra. Laws were made for the people involved in the business of restaurant and hotel prohibiting bar dancers to dance at such places or restricting hotels and restaurant to keep bar dancers but in the case of Indian Hotel and Restaurant and Ors v. State of Maharashtra the Supreme Court upheld the judgment passed by the High Court of Mumbai and also upheld the rights of the Bar Dancers working at hotels and restaurants and is also considered as an landmark judgment.

Facts of the case 

There are many hotels and restaurants in Mumbai where there are bar dancers who work in the restaurant and hotels who have the license to keep bar dancers at their respective places. Bombay government amended the Bombay Police Act, 1951 with the purpose of securing the rights of girls and women living and working in Mumbai and to reduce the sex trafficking of minor girls. Two sections were inserted in the new amendment act of 1951 and they were Section 33A and Section 33B.

According to Section 33A of Bombay Police Act, 1951 “ there is a prohibition of performing all or any type of dances at eating houses, beer bars or any other public place”

According to Section 33B of Bombay Police Act, 1951 “ Permitting three star hotels and government associated places of entertainment to hold dance performances”

The High Court of Bombay passed the verdict and declared the said sections as unconstitutional and arbitrary and the same judgment was upheld by the Supreme Court of India declaring the said sections as unconstitutional and arbitrary. 

The government of Maharashtra introduced a new amendment in the year 2014 and eliminated Section 33 (B) but incorporated Section 33(A) which strictly banned the dances. So a writ petition was filed by Indian Hotels and Restaurant Associations and Ors challenging section 33(A) of Bombay Police Act, 1951 on the ground that the said section is violative of Article 14, 19(1)(a), 19(1)(g) and Article 21 of the Constitution of India.

  1. Discrimination against womens employed to dance in eateries and bars and those employed to dance in three star hotels and government associations by the another amending section 33B that is violative of Article 14 of the Constitution of India. 
  2. Interferences with their right to work and right to livelihood that is guaranteed under Article 19(1)(g) and 21 of the Constitution of India.

State filed counter affidavit against the said writ petition but the Court passed an order on October 15, 2015 declaring the aforesaid section which was enacted by government of Maharashtra in the year 2014 as unconstitutional as no form of dance can be expressed as “obscenity”.

The state enacted the legislation in the year 2016 with strict implications to ban the bar dance imposing various restrictions on hotels as well as restaurants also incorporated the word “obscenity” in the said act. The preamble of the act signifies that Act “prohibits obscene dance forms and it also emphasises that it was enacted with the impediment to protect the women working in such conditions from exploitation and to improve their conditions of work”.

Issues

  • Use of the word “obscene dance” defined under Section 2(8)(i) of the act.

For the issue no. 1 the Hon’ble judges were of the view that prurient interest in the context of dance performance imparts the meaning that the performance made by the dancers is targeted in order to encourage elicit interest in sexual matters. 

  • Whether section 6(4) of the said Act is violative of Article 19(1) of the Constitution of India or not.

For issue no. 2 the said provision prohibits grant of license for orchestra where license under the said act is granted meanwhile it also restricts grant of license for the place for which a license for orchestra was granted that means a license cannot be issued to the person to have both the orchestra and dancers at same place or for same purpose. For the said allegations the respondent replied that the purpose behind the said provision is to put stringent license conditions for bar dancers, which would not be possible if there is an orchestra at the same place of bar dancers. The Judges don’t find any relevant point in reply made by the respondent and declared the said provision as arbitrary and irrational and struck down Section 6(4) of the act declaring it as unconstitutional. 

  • Whether punishment provided under Section 8(2) of the act is discriminatory and violates Article 14 or not? 

The petitioners were of the view that “obscenity” is also a punishment under Section 294 of IPC in which a person can be punished for 3 months and Section 8(2) of the act declares punishment for 3 years which is contrary to the provision of IPC which is a Central law. This allegation made by petitioner was not relevant in eyes of the Judges as punishment given under Section 8(2) has to be read with Section 8(1) that if the place is used in contravention of section 3 then the person can be punished for 3 years. That if hotels and restaurants are working without granting license under Section 3 of the act. So, the allegations made by the petitioner were not allowed by the Judges.

  • Whether Section 8(4) of the Act is violative of Article 14 or not?

In issue no. 4, the Hon’ble Court is of the view that throwing of coin or money or any other monetary item on dancers is inappropriate but giving tip is appropriate. Hon’ble Court prohibited throwing of coins or any other monetary item and allows tips during billing time.

  • Pertaining to the legality of rule 3 of Act. 

According to rule 3(3), a person should have a record of good character with no criminal record. This rule was considered as vague and not appropriate by Hon’ble judges and declared it as not definite and precise but has given liberty to the state to redefine criminal record. Condition no. 16 of rule 3 was also set aside as both the provisions were talking about the same thing.

  • Condition 2 of part A of rule 3?

Issue no. 6 was struck down by Hon’ble judges on the grounds of “unconscionable”  as it talks about the size of bar rooms and construction of partitions for the same.

  • Condition no. 11 of part A of rule 3?

In issue no. 7, the provisions speak about not opening of places where bar dancers are to be placed within 1 km of educational or religious institutions. Provisions were declared as arbitrary because it is practically impossible in a city like Mumbai to find such locations for opening of hotels and restaurants with bar dancers.

  • Condition no. 2 of part B?

In issue no. 8, the said conditions talks about conditional contract and employment of dancers as salaried employees and timing prescribed in condition no. 9 as between 6:30 PM to 11:30 PM for bar dancers was also challenged. Hon’ble Court was of the view that to set aside the conditional contract but upheld provision relating to payment of remuneration through bank accounts and timing prescribed in condition no. 9 of part B was upheld.

  • Condition no. 12 of part B and 20 of part B?

Condition no. 12 of part B prohibits serving of alcohol at dance areas and condition no. 20 of part B mandates compulsory installment of CCTV cameras. Court held condition no. 12 of part B as unreasonable and disproportionate. Hon’ble Court also set aside Condition no. 20 of Part B as it infringes on the right to privacy which is a fundamental right guaranteed under Article 21 of the Constitution of India. So the same condition violates Articles 21, 14 and 19(1)(a) of the Constitution of India. 

Conclusion

This judgment is considered as one of the important and landmark judgment passed by the Hon’ble Supreme Court of India as it upheld the rights of dancers working at different hotels and restaurants and also declared the provisions added by the government as arbitrary as it violates Articles 14, 19(1) and 21 of the people involved in such kind of business. As per my view, the judgment passed by the Hon’ble Court was appropriate as steps should be taken by government in order to minimize the sex trafficking or for the safety of women but without taking away rights or without violating any of the Fundamental rights and here the steps taken by the government were for the safety of women but as the Hon’ble Court interpreted the provisions added by the government they were declared arbitrary and unconstitutional because it takes away fundamental rights of the dancers or owner of hotel or restaurant which were guaranteed by the Constitution.


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