In this article, Sukruta Rajendra Babu pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses Reforms in laws related to Dance Bars in Maharashtra.
HISTORY OF DANCE BARS
Inception
“The city that never sleeps” aka Mumbai boasts of an active night life and some of the best bars in the country. Ever since 1986, under the provisions of the Bombay Police Act 1951, the bars in the city of Mumbai were instituted and have grown enormously from time to time.
Ban: Insertion of Section 33-A & 33-B to the Bombay Police Act
However, the Mumbai Police conducted a raid in the year 2005 which ultimately led to an amendment to the Bombay Police Act 1951 passed by the Maharashtra Legislative Assembly thereby closing the various dance bars across Maharashtra including Mumbai. The said ban imposed a complete prohibition on performance of dance in various establishments while the same was exempted in other establishments like 3-star hotels, drama theaters etc.[2] The said amendment by adding Section 33 (A) prohibited dance performances in eating house, permit rooms or beer bars allegedly on the pretext of checking prostitution and human trafficking in the city. The ban being admonishingly selective in nature exempted certain establishments like 3-star hotels and above under Section 33 (B) of the said Act. Various dancers and waitresses working in these bars were uprooted overnight and left jobless leading them to resort to prostitution to support themselves and their families. This lead to sharp criticism by various NGOs, Women Organizations and Unions. Thus came to be challenged Section 33-A & 33-B of the Bombay Police Act before the Maharashtra High Court.
Challenge of the Ban
The impugned provisions of the Bombay Police Act were challenged on the ground that the same was violative of Article 14 having prescribed different standards of morality in the institutions carrying similar activities without any reasonable nexus to its objectives; Article 15 for discrimination against female dancers on the ground of sex; Article 19 for imposing unreasonable restriction upon freedom of expression and right to carry on an occupation or profession and Article 21 for infringing right to life and livelihood. [3]
Court’s ruling
The Court ruled that the ban is not ultra vires Article 15 as it discriminates against identified establishments and not women. It also does not infringe upon freedom of expression or right to life under Article 21 as the dancers were restricted only in prohibited establishments and not elsewhere. However, the High Court struck down the ban as unconstitutional, holding the classification to be palpably arbitrary and imposing an unreasonable restriction upon freedom of profession. On appeal, the verdict was stayed by the Supreme Court and the struggle of the validation continued until the matter was reopened in 2013 in State of Maharashtra Vs Indian Hotels and Restaurants Association[4]. The Supreme Court struck down the ban as unconstitutional.
Amendment
Maharashtra Police (2nd amendment) Act 2014 was passed repealing Section 33-B of the Bombay Police Act in order to disregard the arbitrary discrimination contained therein and the exemption granted to 3 star hotels and above were thus no longer in practice. It is pertinent to note that the Supreme Court[5] while striking down the complete ban opined that instead of providing for stringent implementation the bars may be regulated with the intent to curb the menace in the society which heralded a new dawn for women upliftment in the society. The Supreme Court continued to reflect a similar attitude in subsequent judicial orders which harnessed hopes amongst women rights activists and dance bar owners.
New Act
As matters stood thus the Maharashtra Government passed the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working there in) Act 2016.
REGULATING THE DANCE BARS
Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working there in) Act 2016 & Rules (hereinafter referred to as Act & Rules)
The Maharashtra Government, with the object of prohibiting obscene dance in hotels, restaurants, bar rooms and other establishments and to improve conditions in works and protect the dignity and safety of women, in such places with the view to prevent their exploitation passed the Act[6] regulating permission, licensure, conditions for grant of license, eligibility for grant of license, suspension, revocation and cancellation of license, grievance mechanism etc. the Act also deleted Section 33(A) of Maharashtra Police Act.
The Act and Rules framed under Section 14 of the Act regulate the conditions of work of the employees of the dance bar.
The Schedule to the Rules provide for conditions to comply before grant of Licence:
- Separate hygienic and adequate toilet and locker facilities shall be provided for female employees;
- One stage should not be less than 10ft. x 12 ft. in size in bar room, with non-transparent partition between hotel, restaurant and bar room area. If the applicant is holding permit room licence then there shall be fixed partition between the permit room and dance room.
- The stage should be separated from all sides by a railing of 3 feet height and not by the non-removable partition.
- There shall be a distance of 5 ft. between the railing and the customers seating area.
- There shall be a barrier of not less than 6 inch height restricting the customers from crossing partition and entering the place where dances are staged.
- The applicant should be holding the certificate regarding health and fire safety from the concerned Municipal Corporation or the concerned local authority, as the case may be. The licensee shall comply with the terms and conditions mentioned in the certificate issued by such authorities in respect of fire prevention measures.
- At least one separate entry and one separate exit door should be operative at all times for free, safe and unobstructed movements of the visiting customers.
- Conditions, as laid down in Noise Pollution Control Rules, shall be strictly complied.
- The Licensee shall ensure that no concealed cavity or a room is created within the place in order to conceal performers/staff. But a green room may be allowed.
- The licensee shall provide adequate dedicated parking space as per Development Control Regulations.
- The place shall be at least one kilometer away from the educational and religious institutions.
- The place shall not be in the residential building. In case it is in partial residential building, the applicant shall obtain No Objection Certificate of at least three-fourth occupants of the building.
Conditions to be fulfilled after grant of Licence:
- The provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and of the Protection of Children from Sexual Offences Act, 2013, shall be complied with.
- The 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 (with all other benefits as required by law, including provident fund) and a copy of such contract must be deposited with the licensing authority.
- A register of names of the employees reporting for work in the hotel, restaurant and bar room shall be maintained. The attendance of all the employees be recorded by Biometric Identification System. The proprietor of the establishment must record all particulars of each employee including full name, age, educational qualification, complete address, recent passport size photograph, Aadhar card number (if any), citizenship and other necessary details. The proprietor of the establishment shall be responsible for verifying the information furnished.
- The provisions of the Maharashtra Shops and Establishment Act shall be applicable to all the employees in establishment.
- The establishment shall issue a photo ID card to each employee which shall be carried with by that employee at all times during the period of duty.
- Customer shall not be permitted 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. Customers may, however, make payment of a tip in appreciation of all the dancers by adding a sum to the amount of the bill. Such tip shall be paid by the licensee to the dancers of that evening and under no circumstances such sum shall be deducted from the monthly salary.
- Licensee shall ensure that there will not be any showering of any currency notes, coins or article or articles in token thereof, on performers, on stage or anywhere in the premises, by the customer himself or through the waiter or through any other person.
- A person below the age of 21 years shall not be permitted entry into the bar room under any circumstances. For this purpose such person shall be required to produce a valid identity card indicating his age.
- The bar room where dances are staged shall be open for public only between 6.00 P.M. to 11.30 P.M.
- Adequate security measures must be taken to prevent the sexual or other harassment in any form of any employee working in the hotel, restaurant and bar room. A provision of at least three female security guards for each establishment shall be made. A female employee may be allowed to remain in establishments beyond 9.30 p.m. only if she consents willingly in writing. In such event the establishment must ensure her safety including providing free and suitable travel arrangements to her place of residence. The proprietor of the establishment must make arrangements for adequate crèche facilities to be availed by any female employee.
- No intoxicating drugs, psychotropic substances or narcotics shall be permitted in the establishment.
- No alcoholic beverage shall be served in the bar room where dances are staged.
- The licensee may permit four dancers/artists to perform on the stage at one time but there can be other artists at green room inside the establishment.
- The licensee shall ensure that the age of the dancers is not below 21 years.
- The licensee shall obtain suitability certificate from “Rangbhumi Prayog Parinirikshan Mandal” for starting the performances after verifying the amusement of the Programme/Song Code.
- The Licensee shall ensure that the employees have no criminal antecedents.
- The Licensee shall not allow any modification or alteration in the premises without the permission of the licensing authority.
- The Licensee shall not appoint any manager or an agent to conduct the business on his behalf without obtaining the previous permission of the licensing authority which shall be endorsed on the license.
- The Licensee shall ensure that either the Licensee himself or his manager or his agent whose name has been endorsed on the license by the licensing authority shall remain present during the whole time for which premises are open to the public.
- The Licensee shall ensure that all entrances of the bar room, other places of amusement or public entertainment and the area which falls under the definition of public place shall be covered by CCTV cameras and recording shall be preserved for 30 days for the inspection by the Competent Police Authority, if it is requisitioned by him.
- The Licensee shall at all times allow free access to such place to any Police Officer not below the rank of Police Sub-Inspector on duty entering the same in the execution of his duty.
- Subject to the provisions of Prohibition of Smoking in Public Places Rules, 2008, the Licensee shall not allow any person including performers to smoke either on stage or in the entire premises.
- Licensee shall ensure that no performance of dance shall be expressive of any kind of obscenity, in any manner, even remotely.
- Licensee shall ensure that there is no violation of dignity of women through obscene dances.
- Licensee will be liable for legal action if any information furnished is found to be false or document furnished is found to be forged.
- The Licensee shall abide by the provisions of the Maharashtra Police Act, as well as all other laws applicable in this context.
- The Licensee shall conduct his or her occupation or business in such premises in an orderly manner.
A perusal of the aforesaid conditions makes it evident that the Act & the Rules thereunder elaborately regulates the conditions of work of the employees of the dance bar. Most importantly the Act and the Rules framed thereunder provides for various Labour Reforms and regulations of the working conditions of the employees in the Dance Bars. Some of them are broadly classified as under:
- Working
- Cleanliness
- Protecting the dignity of the employees
- Age permit.
- Inspection
- Monitoring
- Liability of the license
- Holidays
Applicability Of The Provisions Of The Maharashtra Shops And Establishments Act; Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 And Of The Protection Of Children From Sexual Offences Act, 2013:
It is pertinent to note that the provisions of Maharashtra Shops and Establishments Act are made applicable under Rule 4 of part B in the schedule of the Rules. The Applicability of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is made applicable under Rule 1 of Part B in the Schedule of the Rules. The Applicability of Maharashtra Shops and Establishments Act; Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and of the Protection of Children from Sexual Offences Act, 2013 is a huge step towards the reformation and regulation of the working conditions of the employees of the Dance Bars. It aims at ensuring the protection of the dignity and safety of the employees and prevents the exploitation of the employees.
CRITICISM OF THE REGULATION
The Act & Rules have been severely criticized as the definition of “obscene dance” is ambiguous, leaving scope for a flawed and unreasonable interpretation by the authorities. The provision mandating the installation of CCTV invades the privacy of the customers and patrons of the Dance Bars. Imposing a time restriction for the female workers of the Dance Bars on the grounds of safety has already been declared as an unreasonable encroachment of women’s fundamental rights. Furthermore, there is no rationale for prohibiting dance bars to function within a certain parameter of an educational and religious institution when no such condition prevails for granting liquor licences.
Taking some of these contentions, the Act is under challenge before the Supreme Court. It still remains to be seen the role that the Supreme Court would play in regulating and reforming the Dance Bars.
CONCLUSION
A duty is caste on the part of the State to ensure that the fundamental rights enshrined in the Constitution including dignity of women, right to livelihood, safe and secure working conditions, protection of its citizens against abuse, exploitation etc are enforced. Taking a leaf out of the Supreme Courts book, the Maharashtra Government has attempted to reform and regulate the Dance Bar Industry with a view to protecting the dignity and safety of women working therein, with the view to prevent their abuse and exploitation. The passing of the Act and Rules is step in the direction of regulating and reforming the Dance Bar Industry.
References
[2] Kritika Sethi, Constitutional Morality and Bar Dancers Judgement, (2014) PL February 58.
[3] Shruti Kheta, Towards Empowering Women: Judicial Responses to Maharashtra’s Ban on Dance Bars Published on December 14, 2016.
[4] (2013) 8 SCC 519.
[5] (2013) 8 SCC 519
[6] Preamble to the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working there in) Act 2016
