The Supreme Court of India on Thursday, January 17, 2019 in Indian Hotel And Restaurant Association (Ahar) v. State of Maharashtra set aside certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 imposing restrictions on licensing and functioning.
A bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan said that there cannot be total prohibition on dance bars by imposing unreasonable conditions.
Important observations of the bench are given below:
1. Even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars. The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced.
A bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan said that there cannot be total prohibition on dance bars by imposing unreasonable conditions.
Important observations of the bench are given below:
1. Even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars. The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced.
2. Applications for grant of licence shall consider more objectively and with open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act.
3. Many conditions are stipulated for obtaining the licence, which are virtually impossible to perform. It is this reason that not a single establishment has been issued licence under the impugned Act even when it was passed in the year 2014.
4. The impugned Act does not permit dance performances without obtaining licence under Section 3 of the Act. Further, it makes obscene dances as penal offence.
5. Condition No. 20 of Part B mandates installing of CCTV Cameras. This again would be totally inappropriate and amounts to invasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution.
6. Condition No. 12 of Part B prescribes serving of alcohol in the bar room where dances are staged. This is totally disproportionate, unreasonable and arbitrary. There cannot be a complete prohibition from serving alcoholic beverages. We, therefore, quash condition No. 12.
7. State is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses. However, such conditions have been held to be unreasonable by the Courts.
8. There may be aberrations or sporadic incidents of this nature which can happen not only at the places where dance performances are staged but at other places including bar rooms and even main restaurants. Other measures have to be adopted to check such a nuance.
9. Adverting to the condition No. 9 of Part B which prescribes timing of such dance performances only between 6 pm to 11:30 pm, we do not find it to be manifestly unreasonable. Merely because establishments are otherwise open until 1:30 am (next day) or 12:30 am (next day) does not mean that the State has no power to restrict the time of dance performances till 11:30 pm. Even a period of 6 pm to 11:30 pm for dance performances is quite sufficient and substantial as it allows 5½ hours of such performances. We, therefore, uphold this condition.
10. Insofar as provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts is concerned, it appears to be justified as it would make the conditions on which such working women, dancers and waiters/waitresses are employed, transparent thereby eliminating or minimising any chances of exploitation or other disputes.
11. The condition of employing such persons on monthly salary does not stand the judicial scrutiny. This shows that such persons are to be employed in a particular manner i.e. on monthly basis. There can be other modes of employment permissible in law and the employers have legal right to adopt such modes. For example, it could be employment on contract basis i.e. where the remuneration can be fixed for each performance. Moreover, it impinges upon the rights of such workers as well who may, otherwise, be free to give their performances at more than one place. Therefore, it imposes restriction even upon such employees and infringes their right under Article 19(1)(g).
12. The provisions adversely affect women dancers by (i) restricting their freedom to move from one bar to another at their will, if the work conditions or the returns are not suitable; (ii) prohibit them from monetizing dances other than by way of receiving salary or shared tips. More importantly, the State Government has failed to show any compelling public interest to curtail the choices of women performers. We find substance in the aforesaid submission and, therefore, set aside this part of Condition No. 2.
13. The provisions for written contract, deposit of the remuneration in the bank accounts of the employee as well as submission of these written contracts with the licensing authority are appropriate. Rest of the provision is struck down.
14. As far as condition No.11 of Part A is concerned which stipulates that the place where dance is to be performed shall be at least 1 km away from the educational and religious institutions, the petitioners are right in their submission that such a condition does not take into account the ground realities particularly in the city of Mumbai where it would be difficult to find any place which is 1 km away from either an education institution or a religious institution. This, therefore, amounts to fulfilling an impossible condition and the effect thereof is that, at no place, in Mumbai, licence would be granted. Therefore, this condition is also held to be arbitrary and unreasonable and is quashed, with liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.
15. Adverting to Condition No. 2 of Part A of general conditions (GOC), it can be dissected as under: (i) Size of stage in the bar room should not be less than 10 feet x 12 feet. There is no objection to this. (ii) It further stipulates that the stage in bar room has to be with non-transparent partition between hotel, restaurant and bar room area. In essence, it segregates bar room area from hotel and restaurant. (iii) Fixed partition is prescribed between permit room and dance room. We do not find any rationality or justification in imposing such a condition which appears to be quite unreasonable and there cannot be any rationale in this provision having regard to any objective sought to be achieved. Therefore, this provision is struck down.
16) As per Rule 3(3)(i), a person is entitled to obtain or hold licence who possesses a ‘good character’ and ‘antecedents’ and he should not have any history of ‘criminal record’ in the past ten years. However, the terms ‘good character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise. These expressions are capable of any interpretation and, therefore, it is left to the wisdom of the licensing authority to adjudge whether a particular person possesses good character or good antecedents or not. Likewise, insofar as history of criminal record is concerned, it is not spelled out as to whether such a criminal record is based on conviction in a case or mere lodging of FIR would be termed as criminal record. We, therefore, quash the provision in the present form, but, at the same time, give liberty to the rule making authority to have suitable provision of precise nature. Consequently, condition No. 16 of Part B in the present form is also set aside, with liberty as aforesaid.