Citation: Writ Petition Civil No.576 of 2016
Date of Judgement: 17th January 2019
Name of Appellate: Indian Hotel and Restaurant Association (AHAR)
Name of Respondent: The State of Maharashtra and Ors.
Bench: Justice A. K. Sikri and Justice A. Bhushan
Legal Provisions: Article 14, 15, 19(1)(a), 19(1)(g), 21; Section 2(8)(i), 6(4), 8(1), 8(4) of the Maharashtra prohibition of obscene dance in hotels, restaurants, and bar-rooms; Protection of dignity of women (working therein) 2016.
Facts
1. Indian Hotel and Restaurant Association (AHAR) and Anr. V. The State of Maharashtra and Ors. was a case decided by the Supreme Court in January 2019.
2. This case was decided as the livelihood of dancers and the life of dance bars were in question due to the amendment made in the Bombay Police Act 1951.
3. This case was filed due to the discrimination against dance bars that were below three-star ratings with three-star or more hotels.
4. Due to the amendment, many dancers in the dance bars below three-star hotels lost their employment as dance was prohibited in dance bars.
5. The Indian Hotel and Restaurant Association (AHAR) filed a petition in the Bombay High Court under Article 226 stating that the amendments made violate the fundamental rights under Article 14 (right to equality); Article 19(1)(a) (freedom of speech and expression); Article 19(1)(g) (right to practice any occupation) and Article 21 (right to life and personal liberty)
6. The Bombay High Court held that these amendments were unconstitutional as the fundamental rights of individuals were invaded.
7. Not being happy with the decision, the Maharashtra government filed an appeal in the Supreme Court.
8. Three petitions were filed by the State of Maharashtra one by one where final judgement was given in 2019.
Issues Raised
1. Whether the ban on dance in dance bars violates the fundamental rights under Article 14, 15, 19, and 21 of the Constitution?
2. Whether the strict conditions imposed on obtaining the license to run dance bars and dancing in bars violate the fundamental right under 19(1)(g) – the right to practice any occupation.
3. Whether the ban on alcoholic drinks in bars is right or not?
4. Whether the punishments mentioned under the new legislation are repeated and harsh – Is it not violating Article 14?
5. Whether installing CCTV cameras in bars violate Article 21 of the constitution?
Contention
Arguments from Petitioner’s Side:
1. Section 6(4) mentioned was violative of Article 14 and 19(1) under the constitution. The section stated that notwithstanding anything with the Maharashtra Police Act, the license to run a discotheque or orchestra has been rejected, to the people who can actually have a license to conduct the discotheque or orchestra.
2. The learned counsel further stated that even though sections 33A and 33B were inserted by the police act, no license has been granted to the date. The petitioner then filed the case, the state mentioned that the act was changed, and rules were included. The court asked the state to make certain changes and issue licenses within one week of judgment. The state even when the court gave judgment did not make any changes and issue licenses. Even after the court’s judgment, the state made no effort to issue licenses as the state had no intention to issue licenses to dance bars and even though changes were being made, applications were being rejected every time.
3. The definition of dance mentioned under section 2(8) was vague and not proper. The definition of obscene was vague as to what form of dance is obscene as a proper definition defining both terms is absolutely necessary as every person’s perspective is different from another person’s perspective.
4. Obscenity under section 294 of IPC is already a punishment. By mentioning punishment again in the new act, a conflict is formed between central and state acts.
5. According to section 8(4) giving any kind of currency, coins or anything to the dancers is an offense while the same given to singers and waitresses is not an offense as it was a major part of earnings for singers, and waitresses.
6. Having a CCTV camera in the room violates the right of privacy which is a fundamental right.
7. The learned counsel further stated that the women dancing in the bar were doing it out of consent and free will and the allegations of them being involved in prostitution and trafficking were baseless and it had been rejected by the dancers himself.
8. The learned counsel also argued that condition 11 of Part A cannot be fulfilled because, in cities like Mumbai, every institution exists within 1 kilometre so such criteria of not having dance bars near education and religious institutions are impossible.
9. It was also stated that the bars’ closing time while the other bars can be opened up to late midnight was also said to have no importance.
Arguments from the Respondent’s side
1. The respondent stated that the act was for the protection and safety of women. They also stated that arbitrariness and unreasonableness are parameters that are the things to be seen while passing legislation.
2. It also stated that the definition of dance was not vague, and it includes dance that arouses other persons.
3. It also stated that the definition of obscene was not vague and it need not be seen with the definition that is mentioned in the legislature.
4. It is also stated that the purpose behind the introduction of the act is to have strict conditions and to avoid any chance of obscene dancing.
5. Section 8(2) is a separate offense and is different from section 292 of IPC.
6. Condition 2 of Part B is based on the reality of economic conditions and that is the reason that the conditions of having contract-based employment with the women for their society.
7. It also further stated that if there is the possibility of commission then the right to privacy comes to an end.
8. It was also stated that there was no discrimination between the dance bars and discotheques.
9. It also stated that no fundamental right has been encroached.
Judgment
In its decision, the court considered the case of Raj Kapoor & Ors. V. State of Ors. (1980 (1)1081) where it held that it cannot be said that a dance that is aimed at arousing the interest of an audience is vague and incapable of definite connotation. The court said, “It is, more so, when section 292 IPC particularly uses this expression in the deeming provision relating to obscenity”. Therefore 2(8)(i) stood valid.
The offense of section 8(2) was declared to be different from that which is mentioned in legislation. So, this stood valid. It was held that whatever money, any appreciation, or tip shall be given in hand and not thrown on them. As far as condition number 11 of Part A, it was held to be arbitrary, and unreasonable and was quashed.
The court also did not find it right that the timings of bars were mentioned where every other place of the same industry is opened till late at midnight i.e., 1:30. Also regarding condition number 12 of Part B the court quashed on basis that, it is totally misappropriated, unreasonable to assume or tell that persons are misbehaving with dancers after drinking alcohol.
The court also set aside condition number 20 of Part B which acquires the installation of CCTV cameras as it is inappropriate because it is an invasion of the right to privacy and violates basic fundamental rights. The court also set aside the complete prohibition of alcohol and also relaxed certain terms for obtaining licenses of the bars. The court made it compulsory the written contract of employees with their employers.
Defects of the Law
In the present case, the court had difficulty balancing the rights of both the petitioner and respondent. As there is some correctness on both sides, the court managed to satisfy both sides in this case. Through this judgment, the court tried to have an open approach towards the women who were dancing in bars and gave a clearance that all these women were not victims of trafficking or prostitution although had no proof. Although, the court said that the acts done by the state cannot be fully accepted as protecting their dignity, it did not tell any other ways.
Certain agreements were not looked at deeply. One of the petitioners raised a point that the word obscenity has a vague meaning, but the court declared that the dance that arouses a person is termed obscene. This test has been done in the part and there was a shift in the jurisprudence that nobody questioned. While giving judgment, it seemed like moral values were given more importance than the Constitution.
Conclusion
The judgment given by the Supreme Court is a progressive judgment. The court while keeping in mind the job of people gave a judgment that did not take away people’s profession. It also changed some of the provisions in the acts so that both sides in the judgment seemed satisfied. Not only it tries to do justice for women but also gives a positive decision for owners where they can have licenses. Therefore, the present case even though is progressive in some areas is not progressive.
References
1. Ipleaders – https://blog.ipleaders.in/case-analysis-indian-hotel-restaurant-association-others-vs-state-maharashtra/
2. Anshita Agarwal – https://acrobat.adobe.com/link/track?uri=urn:aaid:scds:US:244c4cc6-be50-38cb-8d52-2a40ceaa2d18
3. Law Bhoomi – https://lawbhoomi.com/case-brief-indian-hotel-and-restaurant-association-ahar-anr-v-the-state-of-maharashtra-a/#IMPORTANT_ARGUMENTS_BY_THE_PETITIONER
4. Rishabh Jain – https://bnwjournal.com/2020/10/07/indian-hotel-and-restaurant-association-ahar-anr-v-the-state-of-maharashtra-ors/
K. Lakshmi Manasa
Keshav Memorial College of India.
Hyderabad, Telangana.