Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women 2016 was enacted along with Rules which strived to prevent and promote the women those who are performing as a Dance – performers and the constitutionality of the same was questioned and the court cleared all the confusions under the legislation. The author has tried to summarize the court’s findings and its judgment through various judgments and other sources. The Author, in the end, has tried to conclude with his own opinion about the judgment and how it will act as a precedent in the future and why this judgment was important for the present and the future.
In the Supreme Court of India
|Name of the case||Indian Hotel and Restaurant Association v. The State of Maharashtra|
|Citation||(2019) 3 SCC 429.|
|Year of the case||2019|
|Appellant||Indian Hotel and Restaurant Association|
|Respondent||The State of Maharashtra|
|Bench / Judges||Dr A.K. Sikri and Ashok Bhushan, JJ.|
|Acts involved||Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women, Act 2016|
|Important Sections||Section 2(8)(i), Section 6(4), Section 8(2), Section 8(4) of the Act.|
Dance performance in clubs, hotels, and such other places initiate an obscene and indecent behavior among those who are performing in those places and to control the same the State government came up with a legislation to control these activities, but this legislation affects various fundamental rights for the dance performers and the petitioners here also filed a petition for diverse and complex license regulations and the same was discussed by the apex court. While the need for such legislation to prevent women from facing such a tough situation while they are performing is necessary, this legislation in many parts went way ahead of this motive and enacted provisions that might trouble everyone involved.
Background of the Case
The State government initially brought in the amendment to the Bombay Police Act by introducing Section 33A and 33B because they thought that prostitution was taking place where dance programs were conducted and the Amendment was brought in after a committee was set and the State government followed its guidelines recommended by the commission but the same Amendment was struck down and later on, this Act was passed and commenced in 2016 which were in similar lines to those above provisions. The Act also put forth various conditions and the same and along with other provisions were challenged before the Supreme court by the petitioners through a writ petition under Article 32 of the Indian Constitution. This will have many effects on the present and the future of the citizens and the dance performers and this judgment will have a significant impact in the future.
Facts of the Case
The Maharashtra government put a ban on dance performers through Section 33A vide the Bombay Police Amendment, 2005 in Maharashtra Police Act, 1951 where 33B provided an exception clause to dance performance held in the theatre, clubs where only its members can enter and the High Court struck that amendment as unconstitutional. The same was later held as unconstitutional in an appeal of the High Court order, and the respondents here brought in the Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 (hereinafter referred to as the ‘Act’) and also the Rules framed thereunder being the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 (hereinafter referred to as the ‘Rules’) which were similar to the above provisions. The Petitioners here have filed a writ petition under Article 32 saying that various provisions and the rules are violative of Article 14, 15, 19(1)(a), (19)(1)(g) and Article 21 of the constitution of India.
Whether Section 2(8)(i), Section 6(4), Section 8(2), Section 8(4) is violative of Article 14, 15, 19(1)(a), 19(1)(g), 21 of the Constitution.
- The state of Maharashtra v. Indian Hotel and Restaurants Association , where Section 33A and 33B of the Maharashtra Police Act, 1951 was held unconstitutional.
- The state of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat , which held, that the standard of judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate.
- Khoday Distilleries Ltd. v. the State of Karnataka , it was held that there is no fundamental right inter alia to do trafficking in women or slaves or to carry on the business of exhibiting and publishing pornographic or obscene films and literature.
- State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat , where the term “in the interest of the general public” is a wide concept and embraces public order and public morality.
- State of Bombay v. R.M.D. Chamarbaugwala , it was held that the activity of gambling could not be raised to the status of trade, commerce, or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19(1)(g).
- Bachan Singh v. the State of Punjab, it was held that “Article 21 should have an expanded interpretation and should be read as follows, No person shall be deprived of his life or personal liberty except according to the fair, just and reasonable procedure established by valid law.”
- Ram Krishna Dalmia v. Justice S.R. Tendolkar, it was held that the onus was on the State to justify fairness and reasonableness which is the principle of law.
- Section 2(8)(i) of the Act, which defines “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,–
- which is designed only to arouse the prurient interest of the audience.
- Section 6(4) of the act which states,” Notwithstanding anything contained in the Maharashtra Police Act, no license shall be granted for Discotheque or Orchestra, in the place for which the license under this Act is granted, nor a license shall be granted under this Act for the place for which a license for Discotheque or Orchestra has been granted.”
- Section 8(2) of the act states that 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 a continuing offense, a further fine which may extend to rupees ten thousand for each day during which the offense continues.
- Section 8(4) of the act states that 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 acts 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.
After hearing the arguments of both the sides, the apex court held that Section 2(8)(i) is held to be valid and rejected the arguments of the petitioners who argued that dance which is aimed at arousing interest is said to be a vague term and the court held that this provision to be valid. The court moving onto other provisions held that Article 6(4) of the Act, which forbids grant of license for discotheque or orchestra where the license is granted under this Act, in a particular place which means, this provision enables the license to be granted for either for dance bars or discotheque/orchestra and not for both the purposes.
The court held this, to be completely arbitrary and irrational and that it had no nexus to the object sought to be achieved. The Supreme Court also held that 8(2) is different from Section 294 of IPC and the court held that 8(2) should be read with the first clause which provides punishment if a hotel, restaurants, or any room is used violating Section 3 and places a condition that these places should be used for obscene dance performances for any immoral purpose even after obtaining the license. While dealing with Section 8(4) of the Act, the court held that throwing coins, currency notes or any article which can be monetized tends to create a situation of indecency. The court held handing the tips personally is not inappropriate and it also held it is not right to add the tip to the bills. The court also set aside various conditions that were given under the act to be violating the Fundamental Rights.
The Apex court highlighted that although dance performances in clubs and hotels might not be obscene to a particular class of people and it held classification based on that would be arbitrary and irrational. The Court also highlighted the fact that throwing coins and currencies at the dance performers would constitute indecency and the same was held to be unconstitutional.
Dance performers in clubs, hotels play a vital part and although it is regarded as a fun activity, to consider that it might promote obscenity is not a right approach and the court rightly held that provision to be valid and rightly made the provision relating to licensing to be arbitrary and to have no nexus with the object and held that is violating Article 14 of the constitution. The court also rightly, held that the provision that mandates throwing coins, summary at the dancers to be immoral and can lead to indecency and held that provision to be constitutional. The Respondents have made new legislation that protects dance performers but the court rightly held those provisions to be unconstitutional and held that the dance performance in hotels, clubs can be there.
Indian Hotel and Restaurant Association v. The State of Maharashtra.