tuesday, 22 january of 2019

Law

India Supreme Court eases restrictions on Mumbai dance bars

The Supreme Court of India on Thursday upheld the constitutional validity of a law imposing restrictions on the licensing and functioning of dance bars in the state of Maharashtra and its capital Mumbai. At the same, it struck down certain provisions of the law that it deemed unconstitutional and unreasonable.

Dance bars have been at the heart of a decade-long struggle between the Maharashtra state executive and legislature on one side, and the judiciary on the other. The state government first banned dance bars in 2005, saying they “corrupted young people and were a front for crime and prostitution.” The Bombay High Court overturned the ban in 2006 and ruled that the prohibition was in violation of the fundamental right to equality of bar dancers and bar owners under Article 14 of the Constitution of India and the right to work in any profession, as guaranteed by Article 19(1)(g).

The verdict was challenged by the state government, which said the dance performances were vulgar and left women performers vulnerable to exploitation and human trafficking. In 2013 the Supreme Court ruled against the ban and upheld the Bombay High Court order. The Maharashtra government responded by amending Section 33A of the Maharashtra Police Act, prohibiting the “holding of a performance of dance, of any kind or type, in an eating house, permit room or beer bar.” In 2016 the state legislature enacted the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act. This was the statute impugned in the writ petition filed by the Indian Hotel and Restaurant Association and the subject of Thursday’s decision.

Section 2(8) of the statute defines an “obscene dance” as one that is, among other things, “designed only to arouse the prurient interest of the audience.” The apex court upheld the validity of the definition and rejected the contention that the terms used in the definition were “too vague and incapable of a definite connotation.” Section 8(4), which prohibits the showering of “coins, currency notes or any article or anything which can be monetized on the stage or handed over personally or through any means,” was read down partially. The court ruled that while the ban on showering coins and currency notes was justified, the ban on personally handing money over to the dancers is not justified. “Whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins,” judge AK Sikri said. Granting licenses to discotheques and orchestras in the same premises as dance bars was prohibited under Section 6(4). The court quashed the restriction for being unconstitutional and “totally arbitrary and irrational.”

Of the rules made under Section 14 of the parent legislation, the Supreme Court struck down rule 3(3)(i). It authorized a person to obtain or hold a dance bar license only if he or she possessed a “good character” and “antecedents,” terms that the bench found to be “not definite or precise.”

Condition 11 contained in “Part-A” of the schedule attached to the rules, stipulating that dance bars be situated at least one kilometer away from educational and religious institutions was quashed for being “arbitrary and unreasonable.” Condition 12 of “Part-B” of the schedule, prohibiting the sale of alcohol in dance bars was struck down too. “This is totally disproportionate, unreasonable and arbitrary. We see no reason as to why liquor cannot be served at such places,” Sikri stated.

Referring to its judgment in the KS Puttaswamy case, the Supreme Court found condition 20 of Part-B, which stipulated that CCTV cameras be installed in dance bars, to be unconstitutional as it amounted to an invasion of privacy and was thus in violation of Articles 14, 19(1)(a) and 21 of the constitution. A stipulation (condition 2 of Part-B) demanding that employees be hired under written contracts and that salaries be deposited directly in their bank accounts was found to be constitutionally valid.

The Supreme Court also criticized the Maharashtra government for trying to circumvent previous judicial pronouncements and “aiming to achieve something indirectly which it could not do directly.” “Such a situation is beyond comprehension and cannot be countenanced,” the judge’s concluding remarks read.

(Published by Jurist, January 18, 2019)

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