July 20, 2013 5:23:52 am
The SCs judgment on Mumbais dance bars does well to refuse to countenance the specious distinction between different classes of performers and audiences
Article 19(1)(g) of our Constitution guarantees to every citizen the fundamental right to practice any profession and to carry on any occupation. The guarantee extends to the so-called noble professions of law and medicine,as also to occupations like rag-picking or clearing garbage or girls dancing in bars and restaurants. The Constitution makes no distinction between high-class and low-class occupations.
Recently,the Supreme Court had to adjudicate the constitutionality of Section 33A of the Bombay Police Act,1951,where inter alia performance of a dance of any kind in any eating house,permit room or beer bar is prohibited,and the breach is visited with severe punishment. However,Section 33B of the said act provides that the prohibition will not apply to a dance performance in a three-star or above hotel. The justification offered for the ban by the state of Maharashtra was that it was necessary in the interests of decency and morality,because dancing by bar girls aroused lustful passions in the audience and that,in some bars,prostitution was facilitated and,therefore,the ban was placed for the protection of vulnerable women.
A bench of the SC,comprising Chief Justice Altamas Kabir and Justice S.S. Nijjar,in a recent well-researched and erudite judgment,ruled that the blanket prohibition imposed on dancing girls performing in a bar or a non-three-star restaurant was excessive and disproportionate to the professed aim of the legislation. The court opined that less drastic,alternative measures could have been adopted,which would be adequate to ensure the safety of women,rather than the imposition of a total ban. It observed that the ultimate effect of the blanket prohibition on any form of dancing in the establishments not exempted under the act was the closure of these establishments,which resulted in the unemployment of over 75,000 women,forcing many of them into prostitution out of necessity for maintenance of their families. As a result,the court ruled that the impugned legislation violated Article 19(1)(g) and was unconstitutional.
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To my mind,the real merit of the judgment lies in its refusal to countenance the specious distinction made by the state to justify the exemption of hotels with three stars and above from the provisions of the act. The court held that the assumption underlying the exemption was elitist,not based on any rational criterion. It observed that it was unable to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. Rather,it is evident that the same dancer can perform the same dance in the high-class hotels,clubs and gymkhanas,but is prohibited from doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The court ruled that the so-called distinction is based purely on the basis of the class of the performer,and the supposedly superior class of the audience,and in the noteworthy words of Justice Nijjar,our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs,brings with him as a necessary concomitant a particular kind of morality or decency. We are unable to accept the presumption that the enjoyment of [the same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes,it would lead to immorality,decadence and depravity. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience.
Apparently,the state government presumed that the performance of an identical dance item in establishments with less than three stars would be likely to deprave,corrupt or injure public morality or morals,but would not be so in exempted establishments. The court ruled that this presumption was thoroughly unacceptable as it was based on the fallacy that the so-called elite,that is,the rich and the famous,would have higher standards of decency,morality or strength of character than their counterparts,who have to content themselves with lesser facilities of inferior quality in the dance bars. As aptly stated by Justice Nijjar,these are misconceived notions of a bygone era which ought not to be resurrected.
The court pointed out that there was no material placed on record by the state to show that it was not possible to deal with the projected situation within the framework of the existing laws. The court observed that there are already sufficient rules and regulations and legislation in place under various acts which,if effectively applied,would control,if not eradicate,all dangers to society projected in the impugned legislation.
This landmark judgment reaffirms the vision of the great Justice Vivian Bose that our Constitution is not only for lawyers and politicians and officials and those highly placed,but also for the poor and the humble. For the butcher,the baker and the candlestick maker. And now also for dancing girls,who are guaranteed their fundamental right of livelihood.
The writer is a former attorney general of India
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