Case Summary: Dance Bar Case | Indian Hotel and Restaurant Association (AHAR) & Anr. v. State of Maharashtra & Ors (2019)

Indian Hotel and Restaurant Association (AHAR) & Anr. v. State of Maharashtra & Ors (2019) case is popularly known as the Dance Bar case. The ruling is a major victory for pub performers, as it guaranteed their livelihood throughout the future. In January 2019, the tribunal issued its decision upon this writ petition, that was a massive blessing towards cafe holders as well as females that rely primarily on performing in cafes for something like a living. The dispute has a lot of ramifications regarding female issues. It maintained some rules while declaring others unreasonable and unconstitutional.

• Name of Case: Indian Hotel and Restaurant Association (AHAR) & Anr. v. The State of Maharashtra & Ors
• A.K.A: Dance Bar Case
• Judgment dated: January 17, 2019
• Citation – “WRIT PETITION (CIVIL) NO. 576 OF 2016”
• Bench: Justice Sikri, Justice Bhushan

Facts of the Case

This case was popularly known as the Dance Bar case. The Maharashtra government introduced Sections 33A as well as 33B to the Maharashtra Police Law 1951, through the Mumbai Police Amendment Bill, 2005.

Previously “Bombay Police Act, 1951” that “prohibited any kind of dance performance in an eating-house, permit room or, beer bar”, this was stated in section 33A of the said Act but an exception was made to it, if the dancing presentation took place in a theatre or a nightclub (within which just members were allowed to enter) this had made a limitation on the places to dance, which means that dance performances can be conducted in the three-star hotels and above but in one or two-star hotel no dance performances can be made, this was stated in section 33B of the Act.

A contention was made in the Mumbai state high tribunal that prohibition violates the the appellants’ constitutional privileges are covered by Articles like 14, 19 and 21 of the Constitution. The respondent had stated “it noticed that prostitution rackets were being run in hotel establishments in which dance programs were being conducted. Even such dance forms were observed as obscene by the State”.

The abovementioned clauses were declared unconstitutional by the Bombay High Tribunal, The Bombay High Command held that the statewide prohibition on dancing events in pubs is unlawful and in infringement of the Constitutional Freedoms enshrined in Article 14, 19(1)(a), 19(1)(g), and 21 of the Federal Charter.

After the particular judgment, the state of Maharashtra introduced the second amendment to the 2014 Act which was said to be “The Maharashtra Police (Second Amendment) Act, 2014”, wherein the section 33B was deleted but section 33A was still enacted. A writ petition against the same was filed (2), where Section 33A was challenged on the same ground violating Article of the India’s Constitutional Law like 14, 19 and 21. In 2015 the tribunal had stayed that operation as well as said that “No performance of dance shall remotely be expressive of any kind of obscenity.”

The State had enacted “Maharashtra Prohibition of Obscene Dance within Hotel, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016”. Many provisions of specific Act violated Fundamental Rights. Section 9 of the Act had imposed restrictions on the opening timing of barroom from 6 pm to 11:30 pm, further section 12 restricted the serving of alcohol in a barroom.

An appeal has been filed in front of the honourable SC of India against the Bombay High Tribunal judgment to strike down the Maharashtra government’s statewide prohibition on the dance performances in the bars by the Government of Maharashtra. In response, many writs were filed by the restaurants and hotel association, Bhartiya Bar Girls Union, and others. But only three writs under article 32 were accepted one by the Association of various Hotels owners and Bar owners, second by R.R. Patil foundation, and last by Bhartiya Bargirls Union.

Issues

1. Dance has been outlawed throughout all of the district’s local breweries as a result of the whole legislative changes. Is it a violation of the Indian Constitution’s Articles 14, 15, 19, and 21 on civil liberties?
2. The administration imposes strict prerequisites for acquiring a permit Is it in contravention of law 19(1)(g), which guarantees the right to exercise whatever career, employment, or commerce?
3. Strict penalties within this latest regulation despite the fact that the penalty for absurd acts has already been referenced in the Indian Penal Code of 1860. Isn’t this a breach of Section 14?
4. Does the setup of Surveillance cameras in nightclubs encroach on an adult’s freedom to exist as well as human dignity as ensured by Article 21?

Contentions made by the Government of Maharashtra

• The government justified their position by claiming that almost all of the females that operate in the dancing clubs or prohibited establishments come from one of the most disadvantaged sections of communities and that the majority of them are smuggled towards nightclub dancers.

The Supreme Court of India had denied the contention of the government that most of the girls are trafficked. The Hon’ble Supreme Court said that the above legislation is made on the possibility that various dancing clubs are being utilised as a pick-up point for the girls and all the girls are trafficked into this.

• The following argument was focused on the extent of environmental damage incurred by the prohibited enterprises. The court cited Ram Krishna Dalmia Case where it was held that legislation can take measures to recognize the degree of harm, but here the government of Maharashtra had faltered to provide justification for the distinction amongst excluded versus forbidden entities and their surrounding atmosphere in the context of vulnerability. Unfortunately in this case the appellant is under the presumption that the rich and elite class of the society has higher standards, morality, and decency. Court held these contentions as “misconceived notions of a bygone era”.

Argument Made By The Hotel And Restaurant Association

The SNDT Report shows that only 17.40% are from Maharashtra and the Bar owners have been exploiting them by cutting their pay and sharing the tips received. The females employed in the field of bar dancing or as waitresses are not generally given appropriate profit and salary and solely dependent on the tips which are also shared in 30 to 60% with the bar owners. They submitted that this activity of the young girls is Res extra commercium.

Such dances or activities which are obscene shall be considered as res extra commercium and is the subject matter of Article 19(1)(g) of the Indian Constitutional Law. Due to that ban, 75000 women workers became unemployed, many of which did not have any other marketable skills. Research shows 68% of the women in the dance bars were sole bread earners of their families. ‘

Joblessness caused a number of former female nightclub dancers to flee the province then turn to trafficking, with most of them committing suicide as a result. The prohibition violates the Fundamental Rights enshrined under various articles of Indian Constitution like 14, 19(1)(a), 19 (1)(g) as well as 21 among others.

Judgment

• The Honourable Indian Supreme Court upheld certain rights pertaining to the Bar Dancers.
• Dancing is a natural liberty of bar performers that could never be restricted by calling it “res extra commercium”
• The freedom to practise ones personal career or job was already abused by the restriction against performing.
• Banning dance in some establishments while allowing them in others violates the fundamental rights to equality enshrined within Article 14 of the Indian Constitution.
• In Maharashtra, there can’t be a full ban on dancing bars since the SC has recently overturned the administration’s intransigent requirements for obtaining a dancing bar licence.
• No blanket ban on Maharashtra dance bars shall be made.
• There shall be no educational or religious institution within1 kilometre of any dancing, orchestra or alcohol bars. Every court allowed the restriction of 75metres from the bars that serve liquor as a valid provision and no educational or religious institution shall be there within the prescribed distance.
• The dancing bars’ hours were set to remain the constant between 6 to 11:30 p.m., however nightclubs, orchestras, and alcohol nightclubs were permitted to stay operating until 1:30 a.m.
• The provision prohibiting the consumption of liquor in the crowded bar whereby dancing is held. These circumstances are unjust, unreasonable, as well as subjective.
• CCTV Camera shall not be installed in the barroom as it will violates right to privacy as held in Justice K.S. Puttaswamy case. But there must be CCTV at the entrance of the bar.

Conclusion

The Judiciary Bench has issued a conservative decision. Many of these questions were addressed through objectively reviewing every lawfulness of the proposal’s requirements by considering both the petitioners’ as well as respondents’ viewpoints. The Constitutional Justice retained Maharashtra’s government law after weakening several of the rules to ensure that almost anyone can exercise equal constitutional freedoms

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Sources

1. Full Judgment Text: Indian Hotel and Restaurant Association (AHAR) & Anr. v. The State of Maharashtra & Ors, Available Here
2. Maharashtra Police Act 1951, Available Here
3. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (working therein) Act, 2016 (Mah. Act No. XII of 2016), Available Here

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