Indian Hotel and Restaurant a Association (Ahar) & Anr. vs The State of Maharashtra & Ors.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.6(4) – Forbidding grant of licence for discotheque or orchestra where licence under this Act is granted – Whether s.6(4) is violative of equality clause enshrined in Art.19(1) of the Constitution – Held: s.6(4) forbids grant of licence for discotheque or orchestra where licence under this Act is granted – Conversely it also forbids grant of licence under this Act for the place for which a licence for discotheque or orchestra has been granted – It means that in respect of a particular place, a licence would be granted either for dance bars or for discotheque/orchestra and not for both purposes – The impugned provision is totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved – s.6(4) of the Act is struck as unconstitutional – Constitution of India – Art.19(1).

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.8(2) – Whether punishment provided under s.8(2) of the Act is discriminatory and offends Art.14 of the Constitution – Held: Sub-section (2) has to be read along with subsection (1) of s.8 – Under s.8(1), if the place is used in contravention of s.3, it is made a punishable offence – It means that where a hotel, restaurant, bar room or any place is used for staging dances without obtaining a licence under s.3 of the Act, that is made a punishable offence – However, even if licence is obtained, that would not mean that place can be used for obscene dance performances or for exploiting working women for any immoral purpose – It is these acts which are made punishable under sub-section (2) – In this manner, the offence under s.8(2) is somewhat different from the offence that is stipulated in s.294 IPC – Challenge to the validity of s.8(2) of the Act, therefore, failed – Constitution of India – Art.14. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.8(4) – Whether s.8(4) of the Act is arbitrary and violative of Art.14 – This provision is to be read with condition Nos. 6, 7 and 8 of Part B – It banned throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such notes, to a dancer and treated it as an offence – Further stipulation in these provisions is that any tip to be given should be added in the bill only and is not to be given to the performers etc. – The justification given by the State was that showering of money etc. is a method of inducement which has to be curbed keeping in view that Act aims to protect the dignity of women – Held: Insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident since the said Act has tendency to create a situation of indecency – Therefore, whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins etc. – However, there may not be any justification in giving such tips only by adding thereto in the bills to be raised by the administration of the place – On the contrary, if that is done, the person who is rightful recipient of such tips may be denied 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 is upheld insofar as it prohibits throwing or showering of coins, currency notes or any article or anything which can be monetised on the stage – However, handing over of the notes to the dancers personally is not inappropriate – The provision of giving the tips only by adding the same in the bills is also set aside – Constitution of India – Art.14.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – r.3(3)(i) – Legality of, challenged on the ground that it is vague – As per this sub-rule, 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 – Held: The terms ‘good character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise – These expressions are capable of any interpretation and, therefore, 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 – Therefore, the provision is quashed in the present form, but, at the same time, liberty is given 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.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 2 of Part A of general conditions (GOC) – 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 i.e. it prescribes fixed partition between permit room and dance room – Justification of – Held: There is no rationality in imposing such a condition having regard to any objective sought to be achieved – Therefore, this provision is struck down.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No.11 of Part A – Stipulation that the place where dance is to be performed should be at least 1 km away from the educational and religious institutions – Held: Such a condition does not take into account the ground realities particularly in the city of Mumbai where it is 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 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. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No.2 of Part B – Imposition of an obligation on the employers to the effect that working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary and their monthly salary should be deposited in their bank accounts with all the benefits required under the law and copy of such contracts should be deposited with the licensing authority as well – Held: The provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts is justified as it 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 – However, the condition of employing such persons on monthly salary impinges upon the rights of such workers as well who may, otherwise, be free to give their performances at more than one place – This imposes condition of employment 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 – Therefore, it imposes restriction even upon such employees and infringes their right under Art.19(1)(g) – The State Government failed to show any compelling public interest to curtail the choices of women performers – This part of Condition No. 2 is set aside – However, 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 – Constitution of India – Art.19(1)(g).

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 9 of Part B – Prescribing timing of dance performances only between 6 pm to 11:30 pm – Held: It is not 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 – This condition is upheld.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 12 of Part B – Prescribing that no alcohol should be served in the bar room where dances are staged – Held: This is totally disproportionate, unreasonable and arbitrary – There is no reason as to why the liquor cannot be served at such places – State seemingly 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 – 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 – There cannot be a complete prohibition from serving alcoholic beverages – Therefore, condition No. 12 is quashed.

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 20 of Part B – Installing of CCTV Cameras – This would be totally inappropriate and amounts to invasion of privacy and is, thus, violative of Arts.14, 19(1)(a) and 21 of the Constitution – Constitution of India – Arts.14, 19(1)(a) and 21.

Morality – Extent to which the State can go in imposing morality on its citizens – Held: It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same – On the other hand, obscenity is treated as immoral – Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances – However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’.

Partly allowing the Writ petitions, the Court

HELD: 1. Argument of morality – To what extent the State can go in imposing ‘morality’ on its citizens? There may be certain activities which the society perceives as immoral per se. It may include gambling, prostitution etc. The standards of morality in a society change with the passage of time. A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral. Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances. However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’. Furthermore, and in any case, any legislation of this nature has to pass the muster of constitutional provisions as well. [Para 77][449-A-D]

State of Punjab & Anr. v. Devans Modern Breweries Ltd. & Anr. (2004) 11 SCC 26 : [2003] 5 Suppl. SCR 930; Gobind v. State of Madhya Pradesh & Anr. (1975) 2 SCC 148 : [1975] 3 SCR 946 – referred to.

2. Principle of res extra commercium. Insofar as dance performances are concerned, it has already been held that it is not res extra commercium. The decision in Indian Hotel and Restaurants Association (1) dealt with the aspects of Human Trafficking, injury to public morals and res extra commercium. [Para 78][449-E; 450-C, E]

State of Maharashtra & Anr. v. Indian Hotel and Restaurants Association & Ors. (2013) 8 SCC 519 : [2013] 7 SCR 654 – relied on.

3. Re: Section 2(8)(i) of the Act – Section 2(8) defines obscene dance. In the main body, it states that any dance which comes within the meaning of Section 294 of IPC and any other law for time being in force, shall be treated as ‘obscene dance’. The argument is that the definition of obscene dance is expanded beyond Section 294 of the IPC. The submission is that in Section 2(8)(i), the expression ‘arouse the prurient interest of the audience’ is vague, incapable of giving precise meaning thereto. This submission is not accepted for the reason that in explaining as to what kind of books, pamphlets, papers, writings, drawings, paintings, representations, figures or any other object will be deemed as obscene, Section 292 of the IPC itself uses this very expression when it lays down that such books etc. shall be deemed to be obscene if they are ‘lascivious or appeals to the prurient interest...’. In a way, therefore, Section 2(8) incorporates the definition of obscenity as laid down in the IPC which also makes obscene books etc. (Section 292 IPC) as well as obscene acts and songs (Section 294 IPC) as punishable offences. Prurient interest in the context of dance performance would be a performance which has or which encourages an excessive interest in sexual matters. It cannot be said that a dance which is aimed at arousing the prurient interest of the audience is vague term, incapable of definite connotation. It is, more so, when Section

292 IPC particularly uses this expression in the deeming provision relating to obscenity. [Paras 79-81, 84, 89][450-G-H; 451-A, CE; 452-C; 455-H; 456-A] Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43 : [1980] 1 SCR 1081 – relied on.

Amitabh Bachhan Corporation Ltd. v. Om Pal Singh Hoon 1996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB) 87 – referred to.

Brockett v. Spokane Arcades Inc. 1985 SCC Online US SC 165 : 472 US 491 (1985) : 105 S.Ct. 2794; Patrick v. Minister of Safety and Security 1996 SCC Online ZACC 8 : [1996] ZACC7 – referred to.

4. Re: Whether Section 6(4) of the Act is violative of equality clause enshrined in Article 19(1) of the Constitution?

This provision forbids grant of licence for discotheque or orchestra where licence under this Act is granted. Conversely it also forbids grant of licence under this Act for the place for which a licence for discotheque or orchestra has been granted. It means that in respect of a particular place, a licence would be granted either for dance bars or for discotheque/orchestra and not for both purposes. The impugned provision is totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved. Therefore, Section 6(4) of the Act is struck as unconstitutional. [Para 90][456-B, D-E]

5. Re: Whether punishment provided under Section 8(2) of the Act is discriminatory and offends Article 14 of the Constitution?

Sub-section (2) has to be read along with sub-section (1) of Section 8. Under Section 8(1), if the place is used in contravention of Section 3, it is made a punishable offence. It means that where a hotel, restaurant, bar room or any place is used for staging dances without obtaining a licence under Section 3 of the Act, that is made a punishable offence. However, even if licence is obtained, that would not mean that place can be used for obscene dance performances or for exploiting working women for any immoral purpose. It is these acts which are made punishable under sub-section (2). In this manner, the offence under Section 8(2) is somewhat different from the offence that is stipulated in Section 294 IPC which is clear from the language of Section 294. Challenge to the validity of Section 8(2) of the Act, therefore, fails. [Paras 91, 92][456-G-H; 457-A, D]

6. Re: Whether Section 8(4) of the Act is arbitrary and violative of Article 14?

This provision is to be read with condition Nos. 6, 7 and 8 of Part B. It makes throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such notes, to a dancer is banned and treated as an offence. Further stipulation in these provisions is that any tip to be given should be added in the bill only and is not to be given to the performers etc. Insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident as the said Act has tendency to create a situation of indecency. Therefore, whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins etc. However, there may not be any justification in giving such tips only by adding thereto in the bills to be raised by the administration of the place. On the contrary, if that is done, the person who is rightful recipient of such tips may be denied 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. [Para 93][457-D-H; 458-A]

7. Legality of Rule 3(3)(i) challenged on the ground that it is quite vague.

As per this sub-rule, 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. Therefore, the provision is quashed in the present form, but, at the same time, liberty is given 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. [Para 95]458-D-F]

8. Condition No. 2 of Part A of general conditions (GOC) was that size of stage in the bar room should not be less than 10 feet x 12 feet; that the stage in bar room has to be with nontransparent partition between hotel, restaurant and bar room area. In essence, it segregated bar room area from hotel and restaurant and Fixed partition is prescribed between permit room and dance room. There is no objection to the condition that the size of stage in the bar room should not be less than 10 feet x 12 feet. However, as regards the partition, there is no 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. [Paras 96, 97][458-G-H; 459-A-C]

9. Condition No.11 of Part A stipulates that the place where dance is to be performed shall be at least 1 km away from the educational and religious institutions. Such a condition does not take into account the ground realities particularly in the city of Mumbai where it is 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 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. [Para 98][459-C-E]

10. Condition No.2 of Part B imposes an obligation on the employers to the effect that working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary and their monthly salary should be deposited in their bank accounts with all the benefits required under the law and the copy of such contracts should be deposited with the licensing authority as well. 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. However, 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). The State Government has failed to show any compelling public interest to curtail the choices of women performers. This part of Condition No. 2 is set aside. 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. [Para 99][459-F-H; 460-AD]

11. Condition No. 9 of Part B prescribes timing of such dance performances only between 6 pm to 11:30 pm. It is not 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. [Para 100][460-E-F]

12. Condition No. 12 of Part B prescribes that no alcohol shall be served in the bar room where dances are staged. This is totally disproportionate, unreasonable and arbitrary. State seems to be more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. 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. There cannot be a complete prohibition from serving alcoholic beverages. Therefore, condition No. 12 is quashed. [Para 101][460-F-H; 461A]

13. Condition No. 20 of Part B mandating installing of CCTV Cameras is totally inappropriate and amounts to invasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution. [Para 102][461-B]

K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1: [2017] 10 SCR 569 –

followed.

M.P. AIT Permit Owners Assn. and Another v. State of M.P. (2004) 1 SCC 320 : [2003] 6 Suppl. SCR 331; Engineering Kamgar Union v. Electro Steels Castings Ltd. and Another (2004) 6 SCC 36 : [2004] 1 Suppl. SCR 301; Nikesh Tarachand Shah v. Union of India and Another (2018) 11 SCC 1 : [2017] 12 SCR 358; State of Maharashtra v. Joyce Zee alias Temiko (1973) ILR 1299 (Bom); Sadhna v. State (1981) 19 DLT 210; Narendra H. Khurana v. Commissioner of Police (2004)

2 Mah LJ 72; Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors. [1959] SCR 279; State of

Maharashtra & Anr. v. Basantibai Mohanlal Khetan & Ors. (1986) 2 SCC 516 : [1986] 1 SCR 707; M/s Laxmi Khandsari & Ors. v. State of U.P. & Ors. (1981) 2 SCC

600 : [1981] 3 SCR 92; Ranjit D. Udeshi v. State of Maharashtra [1965] 1 SCR 65; Pawan Kumar v. State of Haryana & Anr. (1996) 4 SCC 17 : [1996] 2 Suppl. SCR 392; Director General, Directorate General of Doordarshan & Ors. v. Anand Patwardhan & Anr. (2006)

8 SCC 433 : [2006] 5 Suppl. SCR 403; Ajay Goswami v. Union of India & Ors. (2007) 1 SCC 143 : [2006] 10 Suppl. SCR 770; State of Bombay v. R.M.D.

Chamarbaugwala & Anr. [1957] SCR 874; State of Tamil Nadu represented by its Secretary, Home, Prohibition and Excise Department & Ors. v. K. Balu & Anr. (2017) 2 SCC 281 : [2016] 11 SCR 244 – referred to.

Feminist Contributions from the Margins: Shifting Conceptions of Work and Performance of the Bar Dancers of Mumbai XLV Econ. & Pol. Weekly (48) 2010; RCWS (SNDT University, Mumbai), ‘Working Women in Mumbai Bars: Truths behind the controversy’ (Jul’ 2005); RCWS (SNDT University, Mumbai),

‘After the Ban – Women Working in Dance Bars’ (Dec’ 2006); Dalwai, Sameena, ‘Performing caste: the ban on bar dancing in Mumbai’ Keele University (2012); Anna Morcom, Courtesans, Bar Girls and Dancing Boys: Illicit Worlds of Indian Dance (Hachette India, 2014); A. Etzioni and E. Etzioni (eds.), Social Change (1964); W. Moore, Social Change (1963), W. Moore and R. Cook (eds.), Readings on Social Change (1967) – referred to.