Supreme Court Upholds Right to Dance, Strikes Down Obscene Dance Restrictions in Maharashtra: Indian Hotel and Restaurant Association vs. State of Maharashtra (2019)

Case Background

The case originated from a series of challenges to the Maharashtra state government’s attempts to regulate and restrict dance performances in hotels, restaurants, and bars. The State of Maharashtra had previously enacted laws to prohibit dance performances, citing concerns about obscenity and exploitation of women. These laws were challenged and struck down by the courts. The current case involves a new law, the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, and the rules framed under it. This Act was enacted after previous attempts to ban dance performances were deemed unconstitutional.

The petitioners, including the Indian Hotel and Restaurant Association (AHAR), R.R. Patil Foundation and the Bhartiya Bargirls Union, argued that the new law and rules violated fundamental rights guaranteed under Articles 14, 15, 19(1)(a), 19(1)(g), and 21 of the Constitution of India. They contended that the restrictions imposed were excessive, arbitrary, and infringed upon their right to carry on business and the right to freedom of expression.

Timeline

Course of Proceedings

The Bombay High Court had previously struck down similar provisions in the Maharashtra Police Act, 1951, that sought to ban dance performances in certain establishments. This decision was upheld by the Supreme Court in State of Maharashtra & Anr. v. Indian Hotel and Restaurants Association & Ors. (2013). Following this, the State of Maharashtra introduced a fresh provision via the Maharashtra Police (Second Amendment) Act, 2014, which was again challenged. The Supreme Court had stayed the operation of the newly added Section 33A(1) of the Maharashtra Police Act, 1951. The current case arose after the enactment of the 2016 Act and the rules framed under it, which were challenged by the petitioners.

Legal Framework

The judgment primarily revolves around the following legal provisions:

• The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016: This Act aims to regulate dance performances in hotels, restaurants, and bars, and to protect the dignity and safety of women working in these establishments. Key sections include:
  • Section 2(3): Defines “bar room” as a place where dances are staged for customer entertainment.
  • Section 2(4): Defines “dancer” as any artist performing dance on the stage or in any part of the premises.
  • Section 2(8): Defines “obscene dance” as a dance that is obscene within the meaning of Section 294 of the Indian Penal Code and includes dances designed to arouse prurient interest or involving sexual acts.
    
    “2(8) “obscene dance” means a dance that is obscene within the meaning of Section 294 of the Indian Penal Code and any other law for the time being in force and shall include a dance, –
    (i) which is designed only to arouse the prurient interest of the audience; and
    (ii) which consists of a sexual act, lascivious movements, gestures for the purpose of sexual propositioning or indicating the availability of sexual access to the dancer, or in the course of which, the dancer exposes his or her genitals or, if a female, is topless;”
  • Section 2(10): Defines “place” to include establishments, houses, buildings, tents and any means of transport.
  • Section 3: Prohibits starting a hotel, restaurant, bar room, or any place where dances are staged without obtaining a license.
  • Section 5: Specifies conditions for granting a license, including compliance with the Act and Rules, adequate work conditions for women, and safety precautions.
    
    “5. The licensing authority shall not grant licence under this Act unless it is satisfied that,-
    (a) the conditions prescribed by this Act and the Rules have been complied with by the applicant,
    (b) adequate conditions of work and provisions for safety in respect of women employed in the hotel, restaurant or bar room as prescribed have been provided, and
    (c) adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of the persons visiting such place.””
  • Section 6(4): Prohibits granting licenses for discotheques or orchestras in places licensed under this Act, and vice versa.
    
    “(4) Notwithstanding anything contained in the Maharashtra
    Police Act, no licence shall be granted for Discotheque or
    Orchestra, in the place for which the licence under this Act is
    granted, nor a licence shall be granted under this Act for the place
    for which a licence for Discotheque or Orchestra has been
    granted.””
  • Section 8: Specifies penalties for contravening the Act, including imprisonment and fines for using a place without a license, staging obscene dances, and misbehaving with working women.
    
    “8(1) The owner or proprietor or manager or any person acting on
    his behalf, who uses the place in contravention of section 3 shall,
    on conviction, be punished with imprisonment for a term which
    may extend to five years or fine which may extend to rupees
    twenty-five lakhs, or with both; and in case of continuing offence,
    further fine of rupees twenty-five thousand for each day during
    which the offence continues.
    (2) The owner or proprietor or manager or any person acting on
    his behalf, shall not allow any obscene dance or exploit any
    working woman for any immoral purpose in any place and the
    person committing such act shall, on conviction, be punished with
    imprisonment for a term which may extend to three years or a fine
    which may extend to rupees ten lakhs, or with both; and in case of
    continuing offence, further fine which may extend to rupees ten
    thousand for each day during which the offence continues.
    (3) The offences under sub-sections (1) and (2) shall be
    cognizable and non-bailable and triable by a Judicial Magistrate of
    the First Class.
    (4) No person shall throw or shower coins, currency notes or any
    article or anything which can be monetized on the stage or hand
    over personally or through any means coins, currency notes or
    any article or anything which can be monetized, to a dancer or
    misbehave or indecently behave with the working women or touch
    her person, in any place. Any person who commits such act or
    abets the commission of such acts shall, on conviction, be
    punished with imprisonment for a term which may extend to six
    months or a fine which may extend to rupees fifty thousand, or
    with both.
    (5) The offence punishable under sub-section (4) shall be
    non-cognizable and bailable and triable by a Judicial Magistrate of
    the First Class.
    (6) Any person who contravenes any of the provisions of this Act
    for which no other punishment has been provided, shall, on
    conviction, be punished with imprisonment for a term which may
    extend to three months or fine which may extend to rupees
    twenty-five thousand, or with both.””
  • Section 12: Provides for the constitution of a Grievance Redressal Committee to ensure the conditions of service of women working in the establishments.
  • Section 14: Empowers the State Government to make rules to carry out the purposes of the Act.
• Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016: These rules provide the detailed procedures and conditions for obtaining licenses and operating dance establishments.
  • Rule 3: Lays down the conditions for making an application for license.
    
    “3. Application for licence. – A person shall be entitled to obtain or
    hold a licence under these Rules, if he,-
    (i) has attained 21 years of age;
    (ii) is a citizen of India or a partner of partnership firm registered
    under the Indian Partnership Act, 1932 or a company registered
    under the Companies Act, 1956 or the Companies Act, 2013;
    (iii) possess a good character and antecedents and shall not
    have any history of criminal record in the past:
    Provided that, the licensing authority shall consider the
    history of criminal record of the applicant upto ten years
    before the date of application; and
    (iv) complies with the conditions specified in Part-A of the
    Schedule.””
  • Schedule: Contains general conditions to be complied with before and after the grant of a license.
    • Part A: Conditions to be complied with before grant of license.
      • Condition 2: Specifies the size of the stage and requires a non-transparent partition between the hotel, restaurant, and bar room.
      • Condition 11: Requires the place to be at least one kilometer away from educational and religious institutions.
    • Part B: Conditions to be fulfilled after grant of license.
      • Condition 2: Requires working women to be employed under a written contract with monthly salaries deposited in their bank accounts.
      • Condition 6: Prohibits customers from throwing or showering coins or currency notes on the stage but allows tips to be added to the bill.
      • Condition 9: Limits the bar room operation hours for dances to between 6:00 PM and 11:30 PM.
      • Condition 12: Prohibits serving alcoholic beverages in the bar room where dances are staged.
      • Condition 16: Requires the licensee to ensure that employees have no criminal antecedents.
      • Condition 17: Prohibits any modification or alteration in the premises without the permission of the licensing authority.
      • Condition 20: Requires CCTV cameras to cover all entrances of the bar room and other places of amusement.
• Constitution of India:
  • Article 14: Guarantees equality before the law and equal protection of the laws.
  • Article 19(1)(a): Guarantees the right to freedom of speech and expression.
  • Article 19(1)(g): Guarantees the right to practice any profession, or to carry on any occupation, trade or business.
  • Article 21: Guarantees the right to life and personal liberty.
• Indian Penal Code, 1860:
  • Section 294: Defines and penalizes obscene acts and songs in public places.
  • Section 292: Defines and penalizes the sale of obscene books, pamphlets, papers, etc.

Arguments

The petitioners raised several arguments against the validity of the Act and Rules, primarily focusing on the infringement of fundamental rights. The main arguments are summarized below:

• Vagueness of the term “obscene dance”: The definition of “obscene dance” under Section 2(8)(i) of the Act, particularly the phrase “designed only to arouse the prurient interest of the audience,” is vague and subjective. This vagueness makes it difficult for individuals to understand what conduct is prohibited.
• Arbitrary restrictions on licenses: Section 6(4) of the Act, which prohibits granting licenses for discotheques or orchestras in places licensed under this Act, and vice versa, is arbitrary and lacks a rational basis.
• Disproportionate penalties: The penalties prescribed under Section 8(2) of the Act for allowing obscene dances are disproportionately high compared to the penalties under Section 294 of the Indian Penal Code for similar offenses.
• Unreasonable restrictions on tipping: Section 8(4) of the Act, which prohibits throwing or showering coins or currency notes on the stage and restricts the manner of giving tips, is arbitrary and infringes on the performers’ right to earn a livelihood.
• Impractical licensing conditions: The conditions prescribed in the Rules, such as the size of the stage, the non-transparent partition, the distance from educational and religious institutions, and the requirement of monthly salaries, are impractical and make it nearly impossible to obtain a license.
  • Stage size and partition: The requirement for a stage of a specific size and a non-transparent partition is arbitrary and lacks a reasonable basis.
  • Distance from institutions: The requirement of being one kilometer away from educational and religious institutions is impractical, especially in densely populated cities like Mumbai.
  • Mandatory monthly salaries: The requirement that dancers and waitresses be employed on a monthly salary basis is restrictive and takes away their freedom to work on a contract basis.
  • Restrictions on tips: The prohibition on giving tips directly to dancers and the requirement to add tips to the bill is unreasonable and affects their earnings.
  • Restrictions on timings: The restriction on dance timings to between 6:00 PM and 11:30 PM is arbitrary and lacks a reasonable basis.
  • Prohibition on alcohol: The prohibition on serving alcoholic beverages in the dance area is irrational.
  • Vague employee conditions: The conditions relating to the character, antecedents, and criminal records of employees are vague and overbroad.
  • CCTV surveillance: The requirement to install CCTV cameras is an invasion of privacy.
• Violation of fundamental rights: The Act and Rules violate fundamental rights, including the right to freedom of expression (Article 19(1)(a)), the right to practice any profession (Article 19(1)(g)), and the right to life and personal liberty (Article 21).
• Lack of empirical data: The State failed to produce any reliable data or evidence to support the need for such drastic restrictions.
• Res Extra Commercium: The State’s contention that dance bars are res extra commercium was not supported by any evidence.

The State of Maharashtra, on the other hand, defended the Act and Rules, arguing that:

• Public interest and morality: The Act aims to prohibit obscene dances, improve working conditions for women, and protect their dignity and safety, which are legitimate public interests.
• Regulation, not prohibition: The Act is regulatory, not prohibitory, and seeks to control dance performances through a licensing system.
• Stringent licensing conditions: The licensing conditions are necessary to ensure that dance performances are not obscene and that women working in these establishments are protected from exploitation.
• Definition of “obscene dance”: The definition of “obscene dance” is not vague and is consistent with the meaning of obscenity under Section 294 of the Indian Penal Code.
• Tips as inducement: The prohibition on showering money is to prevent inducement and maintain dignity of women.
• Moral code: The State is preserving the moral code of society by restricting obscene dance.
• Res Extra Commercium: The State argued that activities like obscene dances are res extra commercium.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the definition of “obscene dance” under Section 2(8)(i) of the Act is vague and violative of Article 14 of the Constitution?
2. Whether Section 6(4) of the Act, which prohibits granting licenses for discotheques or orchestras in places licensed under this Act, is arbitrary and violative of Article 14?
3. Whether the punishment prescribed under Section 8(2) of the Act is discriminatory and offends Article 14?
4. Whether Section 8(4) of the Act, which restricts the giving of tips, is arbitrary and violative of Article 14?
5. Whether the conditions stipulated in the Schedule to the Rules are arbitrary and violative of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court relied on the following cases and legal provisions:

Ratio Decidendi

The ratio decidendi of the judgment can be summarized as follows:

• Balance between Regulation and Rights: The State has the power to regulate activities that may be detrimental to public interest, but such regulation must be reasonable and not violate fundamental rights.
• Vagueness and Arbitrariness: Laws that are vague and arbitrary, especially those that restrict fundamental rights, are liable to be struck down.
• Freedom of Expression: The right to freedom of expression includes the right to perform and view dance, and any restrictions on this right must be reasonable and justified.
• Right to Livelihood: The right to practice any profession or carry on any occupation includes the right to earn a livelihood, and restrictions on this right must be reasonable and proportionate.
• Proportionality: Any restriction on fundamental rights must be proportionate to the objective sought to be achieved.
• Obscenity: Obscenity can be restricted, but such restrictions must be based on a clear and objective definition of obscenity and must not be overly broad.
• Res Extra Commercium: The Court held that dance performances are not res extra commercium.

Decision

The Supreme Court delivered the following decision:

• Upheld the definition of “obscene dance” under Section 2(8)(i) of the Act, finding it not vague.
• Struck down Section 6(4) of the Act, which prohibited granting licenses for discotheques or orchestras in places licensed under this Act.
• Upheld the punishment prescribed under Section 8(2) of the Act, holding that it was for a separate offense.
• Partially upheld Section 8(4) of the Act, allowing the prohibition on throwing money but striking down the restriction on the manner of giving tips.
• Partially struck down the conditions in the Schedule to the Rules, finding some of them arbitrary and unreasonable. The Court specifically struck down the conditions related to the size of the stage, the non-transparent partition, the distance from educational and religious institutions, the requirement of monthly salaries, the prohibition on serving alcohol in the dance area, the restriction on dance timings, and the requirement for CCTV cameras.

The Court directed the State of Maharashtra to frame new rules in line with the judgment.

Flowchart of the Decision-Making Process

Ratio of the Case

Sentiment Analysis

Conclusion

The Supreme Court’s judgment in Indian Hotel and Restaurant Association vs. State of Maharashtra (2019) is a landmark decision that reaffirms the importance of fundamental rights in the context of regulatory laws. The Court struck a balance between the State’s power to regulate activities in the public interest and the individual’s right to freedom of expression and livelihood. By striking down arbitrary restrictions and emphasizing the need for reasonable and proportionate regulation, the Court has ensured that the State’s power is not used to unduly infringe upon the rights of individuals. This case has significant implications for the regulation of dance performances and other similar activities in India, ensuring that such regulations are not used to suppress individual freedoms.