Towards Empowering Women: Judicial Responses to Maharashtra's Ban on Dance Bars

The fate of dance bars in Maharashtra has remained unsettled for a decade now. After failing to impose a total ban upon the dance bars, the State Government has now enacted the Dance Bar Regulation Bill, 2016 which introduces unreasonable conditions on the working of such bars. In a series of orders condemning these restrictions, the Supreme Court has emerged as a torchbearer of progressive attitude towards women rights. On November 24, an interim order [1] was passed by the Court directing the Government to issue licences to the dance bars in accordance with the old guidelines. [2] The matter is listed in January for final disposal.

The ban dates back to 2005 when the Government, by amending the Bombay Police Act, 1951[3], added Section 33-A prohibiting dance performances in eating houses, permit rooms or beer bars in order to check the growing prostitution and human trafficking in the city. The ban, however, was selective in nature as Section 33-B exempted certain establishments including three starred or above hotels. The stakeholders challenged inter alia the constitutionality of the amendment before the High Court[4] as violative of Article 14 for prescribing different standards of morality for institutions carrying similar activities without any reasonable nexus to its objectives, Article 15 for discrimination against female dancers on the grounds of sex, Article 19 for imposing unreasonable restriction upon freedom of expression and right to carry on an occupation or profession and Article 21 for infringing right to life and livelihood. The court ruled that the ban is not ultra vires Article 15 as it discriminates against identified establishments and not women. It also does not infringe upon freedom of expression or right to life under Article 21 as the dancers were restricted only in prohibited establishments and not elsewhere. However, the High Court struck down the ban as unconstitutional, holding the classification to be palpably arbitrary and imposing an unreasonable restriction upon freedom of profession.

On appeal, the verdict was stayed by the Supreme Court. The dance bars, therefore, continued to struggle for validation until the matter was reopened in 2013 in State of Maharashtra v. Indian Hotel and Restaurants Assn.[5] Holding such institutions responsible for immoral trafficking, exploitation and depravation of the dignity of women, the appellants argued to declare the ban intra vires the Constitution. It was emphasised that the imposed curbs did not violate Article 19(1)(g) as owners were not prohibited from running their business but were only disallowed to use dancing as a form of entertainment. Besides, such restriction was justified as reasonable for protecting public order and morality. Dismissing these contentions, the Supreme Court ruled against the constitutionality of the ban. It remarked that by prohibiting dance performance in establishments having lesser facilities on the ground of it being derogatory and corruptive of the public morality while allowing the same in the exempted establishment tantamount to making a classification on the basis of investment and paying capacity which is constitutionally impermissible and violative of right to equality. Further, the law compelled the dancers to resort to prostitution to provide for themselves, which in turn, infringed upon the guarantee under Article 19(1)(g).

Several attempts have been made by the Maharashtra Government to remove the base of the 2013 verdict. Maharashtra Police (Second Amendment) Act, 2014 was passed, repealing Section 33-B in order to eliminate the defect of arbitrary discrimination. Resultantly, the exemption granted to three starred or above hotels was no longer in effect. The provision was, however, stayed by the Supreme Court.[6] Recently the Government took another step towards nullifying the ban imposed by the judiciary by enacting Dance Bar Regulation Bill, 2016 which provides 26 stringent conditions that applicants need to fulfil for procuring a dance bar licence. These included, inter alia, installing CCTV cameras in the dance bar area, restricting their timings between 6 p.m. and 11.30 p.m., forbidding liquor in the performance area, prohibiting construction of bars within a kilometer of educational or religious bodies and so on. The Supreme Court slammed these conditions as “absurd” and “regressive” and reinstated the old terms.[7] Moreover, criticising the attempt to ban liquor in such establishments, Justice Mishra remarked that the State Government wanted “juice bars instead of real ones”. Few conditions are yet to be tested on the touchstone of law as the matter is listed for final disposal.

As opined by the Supreme Court, a complete ban, instead of providing for stringent implementation, is not the solution to curb the menace in the society. The 2013 proved to be a watershed decision that heralded a new dawn for women’s upliftment in the society. The judgment has been widely celebrated by women rights activists and dance bar owners. A similar progressive attitude reflected by the Court in subsequent judicial orders has been a harbinger of hope for those who are being adversely affected by the new legislation. An incisive examination of Dance Bar Regulation Bill reveals that it suffers from several fallacies. The definition of “obscene dance” is ambiguous, leaving scope for flawed interpretation by the authorities to cause harassment. Installing CCTV invades the privacy of the patrons. Imposing time restriction on the grounds of safety has already been declared as an unreasonable encroachment of women’s fundamental rights in Anuj Garg v. Hotel Assn. of India [8]. Also, there is no rationale for prohibiting dance bars to function within a certain parameter of an educational institution when no such condition prevails for granting liquor licences. Besides, the statute fails to envisage any alternate source of livelihood for the dancers or provide for a viable rehabilitation. It should not be forgotten that majority of the dancers are illiterate and belong to the lower class of the society. Given such circumstances, a blanket ban is likely to prove to be counterproductive by rendering thousands of women jobless, pushing them further into impoverishment. Some are even forced into sex trade or begging. Since the case challenging the validity of the statute awaits final disposal, it remains to be seen to what extent would the women’s right of livelihood be upheld over societal notions of morality.

* Third year, BA LLB, West Bengal National University of Juridical Sciences.
[1] Indian Hotel & Restaurant Association v. State of Maharashtra, WP (Civil) No. 793/2014, order is available at <http://courtnic.nic.in/supremecourt/casestatus_new/querycheck_conn.asp>
[2] <http://indianexpress.com/article/india/india-news-india/maharashtra-relief-for-dance-bar-applicants-in-supreme-court-interim-order-4393736/>.
[3] Bombay Police (Amendment) Act, 2005.
[4] Indian Hotel & Restaurants Assn. v. State of Maharashtra, 2006 SCC OnLine Bom 418 : (2006) 3 Bom CR 705.