Acknowledging the right of women bar dancers to follow their profession, the Supreme Court suspended Thursday a legal provision banning dance performances in Maharashtra and directed the state government to grant licences to the bar owners without insisting on the prohibitory legislation.
Critical of the 2014 amendment in the Maharashtra Police Act that had imposed a total ban on dance bars and dance performances, a bench of Justices Dipak Misra and P C Pant noted that the state government re-enacted a similar piece of legislation after the top court struck down a prohibitory provision in 2013.
The bench rejected Maharashtra government’s argument that the two provisions were different and the 2014 amendment was perfectly valid. “The difference that is perceptible from the provisions which have been reproduced above are really immaterial,” it said. The bench went on to note that there are situations when the “legislature steps in to remove the base” of a judgment and to validate a provision after the court has declared the provision as unconstitutional. In some other cases, the legislature brings an amendment whereby the defects pointed out by the court are removed, said the court, adding: “Significantly, in the present case, similar provision has been introduced by enhancing the sentence of fine.”
Underlining the necessity of issuing the interim order after it was told that the dance bars have been closed in the state since 2005 and nothing changed even after the apex court’s 2013 judgment, the bench said: “We think it appropriate to stay the operation of the provisions enshrined under Section 33A(1) of the Act.”
However, it added a caveat that “no performance of dance shall remotely be expressive of any kind of obscenity in any manner” and that “the licensing authority can take steps so that the individual dignity of a woman is not affected and there remains no room for any kind of obscenity.”
The bench said police and other government bodies have sufficient power to “safeguard any violation of the dignity of women through obscene dances” and they will make sure such performances do not adversely affect public order.
“As we are staying the provision, if the members of the petitioner apply for licence, the same shall be considered in accordance with law without taking note of the restriction as Section 33A has been stayed by us,” held the bench.
It asked state government to file its affidavit in response to a petition filed by the Indian Hotel and Restaurants Association and others, which have pleaded the court to declare as unconstitutional amended Section 33A. Before the amendment in 2014, Section 33A allowed dance performances in “exempted” establishments like three-star and five-star hotels but banned it elsewhere on an argument that the dance bars were obscene and acted as pick-up points for vulnerable girls. Such a classification between three-star and above hotels and other dance bars was held to be bad in law and the top court quashed the enabling provisions, slamming the “elitist” attitude of the state government.
The then Congress-led Maharashtra government moved to plug this legal loophole instead of accepting the court’s order to think of “imaginative alternative steps” so as “to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls.”
The state cabinet decided to extend the ban to high-end hotels and private clubs too and amended Section 33A, thereby affecting a total ban on dance bars and dance performances.