Observing that “a practice which may not be immoral by societal standards” cannot be thrust on “society as immoral by the State with its own notion of morality” to “exercise ‘social control’”, the Supreme Court Thursday cleared the decks for reopening of dance bars serving liquor in Maharashtra.
A bench of Justices A K Sikri and Ashok Bhushan struck down certain provisions of a 2016 Maharashtra law which
imposed stringent conditions for a licence to run a dance bar, saying these were “virtually impossible”. It said the history of laws made by the state on the subject showed it had “somehow developed the notion that such performances in dance bars do not have moralistic basis”.
Quashing the requirement in the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, that there should be a partition between the restaurant and the bar room, and that alcoholic beverage cannot be served in the room where dances are staged, the bench said “there cannot be complete prohibition from serving alcoholic beverages”.
It also set aside the condition that there should be CCTVs in specified places in the bar room. It said this amounts to “invasion of privacy rights and is, thus, violative of Articles 14, 19(1) (a) and 21 of the Constitution as held in K S Puttaswamy case”.
Conditions that the dance bar should be at least one kilometre away from educational and religious institutions, and that the person seeking licence must possess good character were also set aside.
The bench, however, upheld the provision regarding the working hours — from 6 pm to 11.30 pm — and restraining customers from throwing or showering money on the dancers. It said the working hours were “quite sufficient and substantial as it allows five-and-half hours of such performances”.
The Act, while preventing customers from throwing or showering “coins, currency notes or any article or anything which can be monetized on the stage in the direction of the dancer”, allowed them to tip “by adding a sum to the amount of the bill and that the licencee shall pass this on to the dancers”.
On this, the bench “set aside the provision of giving the tips only by adding the same in the bills”. While it agreed that the prohibition on throwing or showering money is “well justified as it aims at checking any untoward incident”, “there may not be any justification in giving such tips only by adding thereto in the bills… State cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand”.
The bench found the provision that alcohol should not be served in the room where dances are staged as “totally disproportionate, unreasonable and arbitrary”.
Striking this down, it said “we see no reason as to why liquor cannot be served at such places. It seems that State is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses”.
The bench said “there may be aberrations… of nature which can happen not only at the places where dance performances are staged but at other places including bar rooms and even main restaurants” and “other measures have to be adopted to check” such incidents.
It also found the clause which stated that a licence-seeker must have good conduct and not have any history of criminal record in the past ten years as “quite vague”.
It said “the terms ‘good character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise. These expressions are capable of any interpretation and, therefore, it is left to the wisdom of the licensing authority to adjudge whether a particular person possesses good character or good antecedents or not. Likewise, insofar as history of criminal record is concerned, it is not spelled out as to whether such a criminal record is based on conviction in a case or mere lodging of FIR would be termed as criminal record”.
On the Act stipulating that the dance bar should be at least 1 km away from educational and religious institutions, the bench said “the petitioners are right in their submission that such a condition does not take into account the ground realities particularly in the city of Mumbai where it would be difficult to find any place which is 1 km away from either an education institution or a religious institution”.
“This, therefore, amounts to fulfilling an impossible condition and the effect thereof is that, at no place, in Mumbai, licence would be granted. Therefore, this condition is also held to be arbitrary and unreasonable,” it said.
The bench, however, gave the state the liberty “to prescribe the distance from educational and religious institutions, which is reasonable and workable”.
Noting that “standards of morality in a society change with the passage of time”, the bench said: “Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral. Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances.”
“However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’… in any case, any legislation of this nature has to pass the muster of constitutional provisions as well,” it said.
In 2005, the Maharashtra government had added two clauses to the Maharashtra Police Act, 1951, prohibiting any kind of dance performance in an eating house, permit room or beer bar. These were struck down as unconstitutional by Bombay High Court and it was upheld by the Supreme Court in 2013.
The state amended the law again in 2014 to impose similar curbs but this was stayed by the apex court in October 2015 “with a rider that no performance of dance shall remotely be expressive of any kind of obscenity”. Subsequently, the state came up with the 2016 law which was challenged by some hotel owners.