Wednesday 11 September 2013

Supreme court judgment on Dance bar

https://docs.google.com/file/d/0B0FApT99RbefNGNPejM1MGVZRms/edit?usp=sharing

State of Maharashtra & Anr.                        

...Appellants

VERSUS

Indian Hotel & Restaurants Assn. & Ors.   

...Respondents1
Citation;AIR 2013 SC 25821

From  the  objects  of  the  impugned  legislation  and

amendment itself, it is crystal clear that the legislation was

brought about on the admission of the police that it is

unable to effectively control the situation in spite of the

existence  of  all  the  necessary  legislation,  rules  and

regulations.  One of the submissions made on behalf of the

appellants was to the effect that it is possible to control

the  performances  which  are  conducted  in  the

establishments  fall  within  Section  33B;  the  reasons

advanced for the aforesaid only highlight the stereotype

myths that people in upper strata of society behave in

orderly and moralistic manner. There is no independent

empirical material to show that propensity of immorality or

depravity  would  be  any  less  in  these  high  class

establishments.
 On  the  other  hand,  it  is  the  specific

submission of the appellants that the activities conducted

within the establishments covered under Section 33A have

the effect of vitiating the atmosphere not only within the

establishments  but  also  in  the  surrounding  locality.

According to the learned counsel for the appellants, during

dance in the bars dancers wore deliberately provocative

dresses. The dance becomes even more provocative and1

sensual when such behaviour is mixed with alcohol. It has

the tendency to lead to undesirable results. Reliance was

placed  upon  State  of  Bombay Vs.  R.M.D.

Chamarbaugwala & Anr. (supra), Khoday Distilleries

Ltd.  &  Ors. Vs. State  of  Karnataka  &  Ors.  (supra),

State of Punjab & Anr. Vs. Devans Modern Breweries

Ltd. & Anr. (supra), New York State Liquor Authority

Vs.  Dennis  BELLANCA,  DBA  The  Main  Event,  Et  Al.

(supra), Regina Vs. Bloom (supra) to substantiate the

aforesaid submissions.  Therefore, looking at the degree of

harm caused by such behaviour, the State enacted the

impugned legislation. 

118. We are undoubtedly bound by the principles enunciated

by this Court in the aforesaid cases, but these are not

applicable to the facts and circumstances of the present

case.   In Khoday Distilleries Ltd. (supra), it was held

that  there  is  no  fundamental  right  inter  alia  to  do

trafficking in women or in slaves or to carry on business of

exhibiting and publishing pornographic or obscene films

and literature.  This case is distinguishable because the

unfounded  presumption  that  women  are  being/were

trafficked in the bars. The case of  State  of  Punjab  &

Anr. Vs.  Devans  Modern  Breweries  Ltd.  &  Anr.

(supra) dealt with liquor trade, whereas the present case

is  clearly  different.   The  reliance  on  New  York  State

Liquor  Authority  (supra) is  completely  unfounded

because in that case endeavour of the State was directed

towards prohibiting  topless dancing in an establishment

licensed  to serve liquor.   Similarly,  Regina Vs.  Bloom

(supra) dealt with indecent performances in a disorderly

house. Hence, this case will also not help the appellants.

Therefore,  we  are  not  impressed  with  any  of  these

submissions.  All the  activities mentioned above can be

controlled under the existing regulations. 

119.   We  do  not  agree  with  the  submission  of

Mr. Subramanium that the impugned enactment is a form

of additional regulation, as it was felt that the existing

system of licence and permits were insufficient to deal

with problem of ever increasing dance bars. We also do

not agree with the submissions that whereas exempted

establishments are held to standards higher than those

prescribed; the eating houses, permit rooms and dance

bars operate beyond/below the control of the regulations.

Another  justification  given  is  that  though  it  may  be

possible to regulate these permit rooms and dance bars

which are located within Mumbai, it would not be possible

to  regulate  such  establishments  in  the  semi-urban  and

rural parts of the Maharashtra. If that is so, it is a sad

reflection  on  the  efficiency  of  the  Licensing/Regulatory

Authorities in implementing the legislation.

120. The end result of the prohibition of any form of dancing

in the establishments covered under Section 33A leads to

the only conclusion that these establishments have to shut

down. This is evident from the fact that since 2005, most if

not all the dance bar establishments have literally closed

down. This has led to the unemployment of over 75,000

women workers. It has been brought on the record that

many of them have been compelled to take up prostitution

out of necessity for maintenance of their families. In our

opinion, the impugned legislation has proved to be totally

counter productive and cannot be sustained being  ultra

vires Article 19(1)(g). 

121. We are also not able to agree with the submission of

Mr. Subramanium that the impugned legislation can still

be protected by reading down the provision. Undoubtedly,

this  Court  in  the  case  of  Government  of  Andhra

Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon

taking notice of the previous precedents has held that the

legislature must be given freedom to do experimentations

in exercising its powers, provided it does not clearly and

flagrantly  violate  its  constitutional  limits,  these

observations are of no avail to the appellants in view of

the opinion expressed by us earlier. It is not possible to

read down the expression “any kind or type” of dance by

any  person  to  mean  dances  which  are  obscene  and

derogatory to the dignity of women. Such reading down

cannot  be  permitted  so  long  as  any  kind  of  dance  is

permitted in establishments covered under Section 33B.

122. We  are  also  unable  to  accept  the  submission  of

Mr. Subramanium that the provisions contained in Section

33A  can  be  declared  constitutional  by  applying  the

doctrine of severability. Even if Section 33B is declared

unconstitutional,  it  would  still  retain  the  provision

contained in Section 33A which prohibits any kind of dance

by  any  person  in  the  establishments  covered  under

Section 33A.

123. In our opinion, it would be more appropriate that the

State  Government  re-examines  the  recommendations

made by the Committee which had been constituted by

the State Government comprising of a Chairman of AHAR,

Public  and  Police  Officials  and  chaired  by  the  Principal

Secretary (E.I.),  Home Department. The Committee had

prepared a report and submitted the same to the State

Government.  The State Government  had in fact sent a

communication dated 16

Magistrates and Police Commissioner to amend the rules

for exercising control on Hotel Establishments presenting

dance  programmes.  The  suggestions  made  for  the

amendment of the Regulations were as follows :

(1)  Bar girls dancing in dance bars should not wear

clothes  which  expose  the  body  and  also  there

should  be  restriction  on  such  dancers  wearing

tight and provocative clothes.

(2)  There should be a railing of 3 ft. height adjacent to

the dance stage. There should be distance of 5 ft.

between the railing and seats for the customers.

In  respect  of  dance  bars  who  have  secured

licences  earlier,  provisions  mentioned  above  be

made binding. It should be made binding on dance

bars seeking new licences to have railing of 3 ft.

height  adjacent  to  the  stage  and  leaving  a

distance of 5 ft. between the railing and sitting

arrangement for customers.

(3)  Area of dance floor should be minimum 10 x 12 ft.

i.e. 120 sq. ft. and the area to be provided for

such dancer should be minimum of 15 sq. ft. so

that  more  than  8  dancers  cannot  dance

simultaneously on the stage having area of 12- sq.

ft.

(4)  If the dancers are to be awarded, there should be

a ban on going near them or on showering money

on them. Instead it should be made binding to

collect the said money in the name of manager of

the  concerned  dancer  or  to  hand  over  to  the

manager.   

(5)  Apart  from  the  above,  a  register  should  be

maintained in the dance bar to take entries of

names of the girls dancing in the bar every day.

Similarly,  holders  of  the  establishment  should

gather  information  such  a  name,  address,

photograph and citizenship and other necessary

information  of  the  dance  girls.  Holder  of  the

establishment  should  be  made  responsible  to

verify the information furnished by the dance girls.

Also above conditions should be incorporated in

the licences being granted.    

124. Despite the directions made by the State Government,

the  authorities have not  taken steps  to implement  the

recommendations which have been submitted by AHAR.

On the contrary, the impugned legislation was enacted in

2005. In our opinion, it would be more appropriate to bring

about  measures  which  should  ensure  the  safety  and

improve the working conditions of the persons working as

bar girls. In similar circumstances, this Court in the case of

Anuj  Garg  (supra)  had  made  certain  observations

indicating  that  instead  of  putting  curbs  on  women’s

freedom,  empowerment  would  be  more  tenable  and

socially wise approach. This empowerment should reflect

in the law enforcement strategies of the State as well as

law modeling done in this behalf. In our opinion, in the

present case, the restrictions in the nature of prohibition

cannot be said to be reasonable, inasmuch as there could

be several lesser alternatives available which would have

been  adequate  to  ensure  safety  of  women  than  to

completely  prohibit  dance.  In  fact,  a  large  number  of

imaginative alternative steps could be taken instead of

completely prohibiting dancing, if the real concern of the

State is the safety of women.  

125. Keeping in view the aforesaid circumstances, we are

not inclined to interfere with the conclusions reached by

the  High  Court.  Therefore,  we  find  no  merit  in  these

appeals and the same are accordingly dismissed.  

126. All interim orders are hereby vacated.    

New Delhi;

July 16, 2013.1
Read whole judgment here


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