Case Summary by Mohd. Umar, Legal Thirst Campus Ambassador on the Case Law: Indian Hotel & Restaurant Association v. State of Maharashtra; this case deals with provisions of The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016.
In the Supreme Court of India
Case: Indian Hotel & Restaurant Association v. State of Maharashtra
Citation: 2019 SCC ONLINE SC 41
Appellant: Indian Hotel & Restaurant Association (AHAR) & Anr.
Respondent: The State of Maharashtra & Ors.
Coram: J. A.K. Sikri and J. Ashok Bhushan
- Constitution of India
- The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016
- The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016
- Article 14, 15, 19(1)(a), 19(1)(g) and 21 of the Constitution of India
- Following sections of ‘The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016’:-
- Section 2(8)(i): It was concerned with the definition of ‘obscene dance’. The issue was that it includes ‘a dance which is designed only to arouse the prurient interest of the audience’ which was totally a loose expression.
- Section 6(4): It barred the grant of license under the Act in respect of a place where a license for discotheque or orchestra is granted.
- Section 8(2): It provided punishment for contravening section 6(4).
- Section 8(4): It made throwing or showering coins, currency notes, or any article or anything which can be monetized on the stage or handing over personally such things, etc. to a dancer as an offense.
The following conditions of Rule 3 of the ‘Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016’:-
Rule 3 Part A
It stated that one stage should not be less than 10ft. x 12 ft. in size in the bar room, with a non-transparent partition between the hotel, restaurant, and Bar Room area. If the applicant is holding a permit room license then there shall be a fixed partition between the permit room and dance room
It stated that such dance bars should be at the distance of 1 km from the educational and religious institution.
Rule 3 Part B
It stated that 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.
It prevented the customer 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.
It states that bar room where dances were staged shall be open for public only between 6.00 P.M. to 11.30 P.M.
It stated that no alcoholic beverage shall be served in the bar room where dances are staged.
It stated that the licensee shall ensure that the employees have no criminal antecedents.
It stated that the licensee shall not allow any modification or alteration in the premises without the permission of the licensing authority.
It stated that the Licensee shall ensure that the areas which fall under the definition of public place shall be covered by CCTV cameras and recording shall be preserved for 30 days
The judgment pronounced by the Hon’ble Judges came as a massive verdict which prevented the bar dancers from losing their livelihood. The verdict was a huge relief for the restaurant owners and the women dancers who were exclusively dependent upon dancing in restaurants as professionals. It is a landmark case for women’s rights and has upheld the rights of women by nullifying the arbitrary sections of the corresponding legislature.
Filing of the aforesaid writ petitions are The Bombay Police Act, 1951 was enacted in the year 1951 with the object of consolidating and amending the law relating to the regulation of the exercise of powers and performance of the functions by the State Government for maintenance of public order. Section 33 of the Act authorizes the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas &Tamashas.
In 2005, the outright ban on dance bars by the Maharashtra government had encroached upon the livelihoods of many young girls and pushed them into a cauldron of poverty and helplessness. The said two terminologies have been used by the apex court when it itself observed that rather than searching for viable alternatives for women, the ban has resulted in large-scale joblessness among them.
On June 1, 2005, the State government passed a bill to introduce sections 33A and 33B which prohibited ‘any type of dancing’ in an ‘eating house, permit room or beer bar’ while allowing dance performances in three-star and above hotels and other ‘elite’ establishments. On August 15, 2005, The Bombay Police (Amendment) Act, 2005, came into force. All dance bar licenses stood canceled.
Then a petition was filed against the ban by India Hotel & Restaurant Association, a host of NGOs, and the Bhartiya Bar girls Union in the Mumbai High Court. The High Court set aside the ban in 2006 stating the ban as ‘void’ in law and held it was ‘not in the public interest’.
The state government had sought to justify that the dance bars had morphed into institutions that promoted “complete objectification and dehumanization of young women”. The State government forgot to think of the aftermath when it ordered to shut down the city night-light of the dance bars and prohibit women from continuing their dancing profession. After the ban in 2005, it had resulted in an increase in trafficking, and many women were found indulging in prostitution.
The State moved to the Supreme Court which on 16th July 2013 upheld High Court judgment and quashed the dance bar ban. Deciding on the constitutionality of the ban on dance performances in bars in Maharashtra imposed under The Bombay Police (Amendment) Act of 2005, the apex court gave its order in favor of the bar owners and dancers’ union who had contended that the ban on bar dances in some establishments while permitting them in others was contrary to the rule of equality enshrined in Article 14.
The State with strict implications to ban the bar dance, introduced legislation in the year 2016 imposing various restrictions on restaurants and bar dancers. It also incorporated the word ‘obscenity’ in dance performance and prohibited the same. The Preamble of the Act signifies that this Act prohibits obscene dance forms and it also emphasizes that it was enacted with the impediment to protect the women working in such conditions from exploitation and to improve their conditions of work. The Act also defines certain terms like ‘obscenity’, ‘dancer’, ‘bar room’ and the like under Section 3 of the Act. It imposes strict conditions on the part of the restaurants to obtain a license and duty to comply with the rules.
Section 8 of the Act prescribes penal provisions for non-compliance with the Act. It also imposes fines of up to 10 lakhs and imprisonment for a maximum of 5 years. Certain offenses are prescribed as even cognizable and non-bailable offenses. The provision of the Act puts forth restriction on throwing or showering of money or any materials that have a monetary value.
Rules pertaining to the Act also have various restrictions and a criterion is to be followed by the restaurants and hotels. For the application of License, Rule 3 of the Act imposes that the person prescribing for the license should possess a good character and not to have any “criminal record” but it does not define the ambit of “criminal record”. Rule 2 of the Act imparts a condition that the women dancers should be employed under a written contract, on a monthly salary, hence, restricting the freedom to shift to various stages, as they were earlier. Rule 12 restricts the serving of alcoholic beverages in the room where the dance is being performed. Rule 12 further adds that placing of CCTV cameras is a condition precedent to obtain the license and the recordings are to be monitored by the control room and are to be kept as a record, this in an instance is a violation of privacy the counsel argued.
Background of the Case:-
The case arose when the state legislature of Mumbai deliberated various licensing protocols and regulating procedures for the establishment of a restaurant. The case arose as an implication of certain rules pertaining to the Amendments in the Maharashtra Police Act, 1951. The said Amendment was struck down in violation of Article 19(1)(a) and 19(1)(g), Article 14 and Article 21 by the High Court of Bombay. Again fresh amendments have been incorporated in the same Act by the State. In the year 2013, the Supreme Court upheld the decision of the High Court and disposed off the case as infructuous. The case again came up in the Supreme Court in the year 2016 to check the constitutional validity of the Statute Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 (hereinafter referred to as Act) and the Rules, 2016 pertaining to the Act. The case was finally decided in January 2019 and has been discussed below.
Issues / Question of Law
The major issue surrounding the Act is to check the constitutional validity of the Act and its provisions that are said to regulate and protect the bar dancers from exploitation.
Issue 1: It pertains to the definition of “obscene dance” defined under Section 2(8)(i) of the Act.
The contention was that the definition was vague and un-explanatory of any meaning providing for that such dances were designed only to arouse the prurient interest of the visitors. In another contention, it was put forth that the definition is beyond the scope of section 294 IPC and so it stands derogatory to Central Law.
Issue 2: Whether Section 6(4) of the Act is violative of Article 19(1) of the Constitution?
Section 6(4) puts a restriction on obtaining two licenses. The license can be obtained either for the establishment of a dance bar or a discotheque/orchestra but not both. To put it simply, one place cannot have both, a dance bar and a discotheque. The submission by the petitioner’s counsel was that this section is completely irrational.
Issue 3: Whether the penal provisions provided under Section 8(2) are discriminatory of Article 14 of the constitution?
The submission for this question was that section 8(2) is violative of Article 14. It stands derogatory to section 294 of IPC which is a central law and supersedes state law if there is any derogation.
Issue 4: Whether Section 8(4) is arbitrary of Article 14 of the Constitution?
This section puts restrictions upon the visitors to throw or shower coins or any materials that can be monetized. Further, any tip given should be billed and not be given to performers.
Issue 5: Pertaining to the legality of Rule 3 of the Act
Rule 3 of the Act contains certain conditions that are alleged to be vague or un-explanatory.
Rule 3(3) states that a person is entitled to obtain a record of good character and not have any criminal record. The submission is that this is irrational and does not give any expansion of the term “criminal record”. Condition No 16. Rule 3 also possesses a similar provision.
Condition No 2 of Part A of General Conditions contained in Rule 3 regulates the size of the bar room and construction of partition and the like.
Condition No 11 of Part A of Rule 3 stipulates the location where the dance bar is to be placed. It is not to be located within 1 km of an educational or religious institution. The submission was that in a congested city like Mumbai it is impossible to find such a location as schools or religious institutions will be present within a km., as the city is crowded with constructions.
Condition No 2 of Part B speaks about the conditional contract clause and employment of the dancers as salaried employees. Condition No 9 of Part B contains the limited timing of dance performances and is stipulated to be between 6 p.m. to 11:30 pm. The contention is that the restaurant establishments are open till 12:30 am and this stipulation is unreasonable.
Condition No 12 of Part B of the rule prohibits serving of alcohol in the dance room. Condition No 20 of Part B imparts the compulsory installation of CCTV cameras.
Arguments by the Petitioner:-
1. Section 6(4) of the Act was violative of article 14 and 19 (1) of the Constitution of India. The purport behind this provision was to see that there would not be a license for a place, both for dance bars and discotheque or orchestra, at the same time. It was submitted that there was no rationale behind such a provision based on intelligible differentia.
2. It was argued that obscene dance that amounts to obscenity is already an offense under Section 294 of the Indian Penal Code (IPC) and is punishable with imprisonment which may extend to three months. It was further argued that such a provision (section 6(4) of the Act) was not only arbitrary and violative of Article 14; there was a clear conflict between the central law (i.e. the IPC) and the State Act (the impugned Act). Therefore, the section of the impugned act needed to be struck down.
3. It was argued that the prohibition under section 8(4) was only qua the dancers and not singers or waitresses. Contention was that giving such things to a dancer only amounts to tipping her on the appreciation of her performance which was the same thing as appreciating a singer for her performance or a waitress for her service and there was absolutely nothing wrong about it and such an act cannot be made an offense. It was, therefore, manifestly arbitrary and violative of Article 14.
4. Condition no. 2 of part A was challenged to be contrary to the order dated March 02, 2016 passed in Writ Petition (Civil) No. 793 of 2014.
5. It was argued that condition 11 of part A was not possible to be fulfilled because in a congested city like Mumbai where educational and religious institutions existed within 1 k.m. from each and every building.
6. Regarding Condition No. 6 it was argued that the State cannot impose a condition that an amount of tip has to be necessarily added in the bill.
7. Timings of the dance bars stipulated in Condition No. 9 of Part B was challenged on the ground that it does not serve any purpose. Moreover, on the other hand, discotheque or orchestra and liquor bars are allowed to be open till 01:30 a.m.
8. Condition 20 of part B was argued on the ground that the requirement for having CCTV cameras at such places will have a chilling effect, which was also violative of the right to privacy that is now declared as a fundamental right in K.S. Puttaswamy and Another v. Union of India and Others.
Arguments by the Respondent:-
1. Section 2(8) of the Act which defines ‘obscene dance’ was defended by arguing that the expression ‘prurient interest’ has a definite connotation in the dictionary and this expression finds presence in Section 292 of the IPC as well which makes obscenity as an offense.
2. It was argued that Section 8(2) has to be read along with Section 8(1) of the Act. Section 8(1) makes the Act of using the place in contravention of Section 3 as a punishable offense. In that sense, it was argued, Section 8(2) is a separate offense prescribed in a separate law that is under the Maharashtra Act which is distinct from Section 292 IPC.
3. In respect of Section 8(4), it was defended with the submission that it is a matter of cultural ethos of the society. In this vein, it was further said that such a provision was that showering money is a method of inducement which has to be checked. According to the respondents, Section 354A of IPC which is a moral code of the society and the State is only attempting to preserve this moral code by enacting such a provision.
4. Regarding Condition No. 11 of Part A it was argued that it is a matter of policy and is the prerogative of the law maker to fix the distance.
5. Regarding Condition No. 2 of Part B, submission of the respondent was that it is based on an economic reality that there is an exploitation of such working class and, therefore, the rule-maker rightly laid down the condition that the working women must be employed under a written contract on a monthly salary which needs to be deposited in their bank accounts.
6. Regarding Condition No. 20 of Part B, the specific submission was that the right to privacy comes to an end when there is a possibility of commission of trying and this clause aimed at preventing such a crime.
1. Bearing in mind the decision of the Rajasthan High Court in Raj Kapoor & Ors. v. State & Ors. The court held that it cannot be said that a dance that is aimed at arousing the prurient interest of the audience is a vague term, 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 section 2(8) (i) stands valid.
2. Section 6(4) in the court’s view was totally arbitrary and irrational and had no nexus with the so-called purpose sought to be achieved. It was therefore stuck down as being unconstitutional.
3. The offence under Section 8(2) was declared somewhat different from the offence that is stipulated in Section 294 IPC. Therefore, this section was held to be valid.
4. Section 8(4) has to be read with condition Nos. 6, 7, and 8 of Part B. It was held that whatever money, any appreciation of any dance performance, has to be given by handing over personally and not by throwing or showering such coins, etc. Therefore, provision for throwing or showering of currency stood valid. However, adding such tips thereto in the bills would deny the rightful recipient of the same. Further, State cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand. Therefore, the provision of giving the tips only by adding the same in the bills was struck down.
5. A condition similar to Condition 2 Part A, was struck down by this Court earlier. Even otherwise, there was rationality or justification in imposing such a condition therefore; this provision was again struck down.
6. For condition No. 11 of Part A was concerned it was held to be arbitrary and unreasonable and was quashed, with the liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.
7. In regards to Condition 2 part B the court upheld the provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts but struck down the condition of employing such persons on monthly salary because it imposes a restriction upon such employees and infringes their right under Article 19(1) (g).
8. The court did not find the timing mentioned in condition No. 9 of Part B to be manifestly unreasonable. The ground that other establishments are open till late does not restrict the power of the State to restrict the time of dance performances till 11:30 pm. Moreover, appropriate time of five and a half hours was given for such performances. This condition was therefore upheld.
9. The Court quashed Condition No. 12 of Part B stating that it is totally disproportionate, unreasonable, and arbitrary. The court was not convinced by the respondent’s argument that persons after consuming alcohol would misbehave with the dancers. Moreover, courts have also earlier set aside the same contention when applied to the Bar Rooms and restaurants.
10. The Court also set aside Condition No. 20 of Part B that mandates installing of CCTV Cameras as this again was totally inappropriate and amounted to an invasion of privacy and was, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution as held in K.S. Puttaswamy case.
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