Maharastra dance bars to reopen after SC lifts ban

Indian Hotel & Restaurant Association & Anr. v. State of Maharashtra & Anr.

The Writ Petition was filed for issuance of an appropriate Writ for declaring Section 33A inserted by way of an amendment by Maharashtra Police (Second Amendment) Act, 2014 as unconstitutional. In  2005, an amendment was brought in by addition of Sections 33A and 33B to the The Bombay Police Act, 1951 which came into effect on 14.08.2005. The High Court of Bombay by its Judgment dated 12.04.2006 declared the provisions of Sections 33A and 33B as unconstitutional being ultra vires the Articles 14 and 19(1)(g) of the Constitution of India.

The Supreme Court [State of Maharashtra v. Indian Hotel and Restaurants Association and others (2013) 8 SCC 519] agreed with the conclusions of the High Court. The High Court had held that dancing would be a fundamental right and cannot be excluded by dubbing the same as res extra commercium. The State had failed to establish that the restriction was reasonable or that it was in the interest of general public. The High Court also noticed that in the guise of regulation, the legislation had imposed a total ban on dancing in the establishments covered under Section 33A. The Supreme Court observed that end result of the prohibition of any form of dancing in the establishments covered under Section 33A lead to the only conclusion that these establishments have to shut down. This was evident from the fact that since 2005, most if not all dance bar establishments had literally closed down. This had led to the unemployment of over 75,000 women workers and many of them had been compelled to take up prostitution out of necessity for maintenance of their families. The Supreme Court opined that the restrictions in the nature of prohibition couldnot 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. A large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State was the safety of women.

After pronouncement of the judgment by Supreme Court, on 25.06.2014 the State Legislature again brought an amendment in Section 33A and deleting Section 33B whose constitutional validity was challenged in the present writ petition. The Supreme Court observed that in many situations when it declares a provision as unconstitutional, the Legislature steps in to remove the base of the Judgment to validate the provisions or brings an amendment by removing the defects. In the present case too, such provision has been introduced by enhancing the sentence of fine. The Supreme Court stayed the operation of the provisions enshrined under section 33A(1) of the Act. However, with the rider that no performance of dance shall remotely be expressive of any kind of obscenity in any manner. It was observed that sufficient power is vested with the Licensing Authority to safeguard any violation of the dignity of women through obscene dances and they 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 Supreme Court stayed the operation of the amendment and held that if the members of the petitioner apply for licence, the same shall be considered in accordance with law without taking note of the restriction.