INDIAN HOTEL & RESTAURANT ASSOCIATION V STATE OF MAHARASHTRA [ 2019 SCC ONLINE SC 41]

Updated: Jun 19

BY: S INDHU,

Karnataka State Law University


INTRODUCTION

The judgment is a huge pronouncement which ensured continuous employment for bar dancers. The court gave its verdict on the writ petition in January 2019, which was huge relief for the restaurant owners and the women who are solely dependent upon dancing in restaurants as professionals. The case is highly significant for women rights. It upheld certain regulations and quashed more of what exists as arbitrary or unconscionable.


PROCEDURAL BACKGROUND OF THE CASE

The case arose when the state legislature of Mumbai deliberated various licensing protocols and regulating procedures for establishment of a restaurant. The case arose as an implication of certain rules pertaining to the Amendments in Maharashtra Police Act, 1951. The said Amendment was struck down in violation of Article 19(1)(a) and 19(1)(g), Article 14 and Article 21 by the High Court of Bombay. Again fresh amendments have been incorporated in the same Act by the State. In the year 2013, the Supreme Court upheld the decision of the High Court and disposed off the case as infructuous. The case again came up in the Supreme Court in the year 2016 to check the constitutional validity of the Statute Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (working therein) Act, 2016 (hereinafter referred to as Act) and the Rules, 2016 pertaining to the Act. The case was finally decided in January 2019 and has been discussed below.


FACTS OF THE CASE

Initially, the case emerged when the State Legislature of Maharashtra incorporated an Amendment in the Maharashtra Police Act, 1951. The incorporated Sections 33A and 33B which prohibited any kinds of dancing in restaurants, bars and hotels with an exception provided under Section 33B; where the dance performance was only permitted in theatres, clubs or hotels rated above three stars. The High Court of Bombay found this section arbitrary and unconstitutional and thus, was struck down.

The State again introduced a second amendment in the Maharashtra Police Act, 1951, in 2014, eliminating Section 33B but incorporating Section 33A which banned the dances. A writ petition was filed on behalf of Indian Hotel & Restaurant Association challenging the constitutional validity of the said Amendment. The State filed a counter affidavit opposing the writ petition. In the said case, the Supreme Court stayed the operation of the provision and upheld the judgment of High Court of Bombay on the same ground and highlighting that no dance performance is inclusive of any kind of obscenity.

The State with strict implication to ban the bar dance, introduced a legislation in the year 2016 imposing various restriction on restaurants and bar dancers. It also incorporated the word “obscenity” in dance performance and prohibited the same. The Preamble of the Act signifies that this Act prohibits obscene dance forms and it also emphasises that it was enacted with the impediment to protect the women working in such conditions from exploitation and to improve their conditions of work. The Act also defines certain terms like "obscenity", "dancer",“bar room" and the like under Section 3 of the Act. It imposes strict conditions on the part of the restaurants to obtain license and duty to comply with the rules.

Section 8 of the Act prescribes penal provisions for non-compliance of the Act. It also imposes fine of up to 10 lakhs and imprisonment of maximum 5 years. Certain offences are prescribed as even cognizable and non-bailable offences. The provision of the Act puts forth restriction on throwing or showering of money or any materials that has a monetary value.

Rules pertaining to the Act also have various restrictions and a criteria is to be followed by the restaurants and hotels. For the application of License, Rule 3 of the Act imposes that the person prescribing for the license should posses a good character and not to have any “criminal record” but it does not define the ambit of “criminal record”. Rule 2 of the Act imparts a condition that the women dancers should be employed under a written contract, on a monthly salary, hence, restricting the freedom to shift to various stages, as they were earlier. Rule 12 restricts the serving of alcoholic beverages in the room where the dance is being performed. The Rule 12 further adds that placing of CCTV cameras is a condition precedent to obtain the licence and the recordings are to be monitored by the control room and are to be kept as a record, this in an instance is violation of privacy the counsel argued.


ISSUES

The major issue surrounding the Act is to check the constitutional validity of the Act and its provisions that are said to regulate and protect the bar dancers from exploitation.

Issue 1: It pertains to the definition of "obscene dance" defined under Section 2(8)(i) of the Act.

The contention was that the definition was vague and un-explanatory of any meaning providing for that such dances were designed only to arouse the prurient interest of the visitors. In another contention, it was put forth that the definition is beyond the scope of section 294 IPC and so it stands derogatory to Central Law.

Issue 2: Whether Section 6(4) of the Act is violative of Article 19(1) of the Constitution?

Section 6(4) puts a restriction on obtaining two licenses. The license can be obtained either for the establishment of a dance bar or a discotheque/orchestra but not both. To put it simply, one place cannot have both, a dance bar and a discotheque. The submission by the petitioner’s counsel was that this section is completely irrational.

Issue 3: Whether the penal provisions provided under Section 8(2) is discriminatory of Article 14 of the constitution?

The submission for this question was that the section 8(2) is violative of Article 14. It stands derogatory to section 294 of IPC which is a central law and supersedes state law if there is any derogation.

Issue 4: Whether Section 8(4) is arbitrary of Article 14 of the Constitution?

This section puts restriction upon the visitors to throw or shower coins or any materials that can be monetized. Further, any tip given should be billed and not to be given to performers.

Issue 5: Pertaining to the legality of Rule 3 of the Act

Rule 3 of the Act contains certain conditions that are alleged to be vague or un-explanatory. Rule 3(3) states that a person is entitled to obtain record of good character and not have any criminal record. The submission is that this is irrational and does not give any expansion of the term “criminal record”. Condition No 16.of the Rule 3 also possesses similar provision.

Condition No 2 of Part A of General Conditions contained in Rule 3 regulates the size of the bar room and construction of partition and the like.

Condition No 11 of Part A of Rule 3 stipulates the location where the dance bar is to be placed. It is not to be located within a kilometre from educational or religious institution. The submission was that in a congested city like Mumbai it is impossible to find such a location as schools or religious institutions will be present within a kilometre, as the city is crowded with constructions.

Condition No 2 of Part B speaks about the conditional contract clause and employment of the dancers as salaried employees. Condition No 9 of Part B contains the limited timing of dance performances and is stipulated to be between 6 p.m. to 11:30 pm. The contention is that the restaurant establishments are open till 12:30 am and this stipulation is unreasonable.

Condition No 12 of Part B of the rule prohibits serving of alcohol in the dance room. Condition No 20 of Part B imparts the compulsory installation of CCTV cameras.


DISPOSITION OF THE ISSUE AND ANALYSIS

The Section 8(2) defining “obscene dance” was analysed and Ld. Judges pronounced that though in a way the section incorporates a mirroring of section 294 IPC defining ‘obscenity’, the section is not vague in defining “obscene dance” arousing prurient interest. The court further observed that, prurient interest in the context of dance performance imparts the meaning that the performance is targeted to encourage elicit interest in sexual matters. The court retained the section and declared that it gives a clear definition and is not vaguely placed in the Act.

The Judges in deliberating Section 6(4) of the Act came to a conclusion that the justification given by the respondent in interpreting the section is not valid. There exists no nexus with the purpose proposed to be achieved. Thus, Section 6(4) was struck down and declared unconstitutional.

The contention of Section 8(2) of the Act where penalty was imposed for allowing obscene dance is violative of Article 14, did not convince the panel. The Judges said that this provision of imposing penalty is different from Section 294 IPC and the respondents were clear in their argument, that the section is to be read with sub-section (1). The Court added that the penalty imposed would prohibit the exploitation of women in the restaurants. The contention against this section failed and the section was upheld.

Tipping the dancers and throwing of coins and showering of anything of monetary benefit were clearly dissected by the court. The court said that throwing or showering of coins or notes is an inappropriate act but billing of tips is appropriate. The court prohibited the throwing of coins or currencies or any other materials but it set aside the provision of billing of the tip, it found that as an act of appreciation and set aside the said provision in Section 8(4) of the Act.

Concerning the Rule 3 and its conditions, Court clarified it views. The provision to possess good character or having antecedent criminal record under Rule 3(3)(i) was quashed on the ground that the provision is not definite and precise but has given liberty to the State in redefining the criminal records. Condition No 16 incorporating a similar provision as to Rule 3 (3)(i) was also set aside.

Condition No 2 of Part A was struck down on the basis of unconscionability.Condition No 11 of part A was held to be arbitrary so much so that it was not practical in considering the realities of the locations found in the city of Mumbai. Insofar as Condition No 2 of Part B, the condition of employment in a conditional contract was set aside but the provision relating to the payment of remuneration in the bank accounts was upheld. The timing prescribed in the Condition No 9 of Part B was upheld.

The court in Condition No 12 of Part B relating to serving of alcohol held that it is disproportionate and unreasonable, resulting in quashing of the condition. Finally the Condition No 20 of Part B was also set aside on the ground that installing CCTV is in violation of Right to Privacy and in also in violation of Article 21, 14 and 19(1)(a) of the Constitution.


CONCLUSION

The Judgment pronounced is really a lifesaver for women and various institutions from getting unemployed. The judgement took a modern view leaving the old concepts of morality and presumptions of the past. The judgment clearly defines and interprets the Act. Provisions that are in violation of Constitution and are unjust to the dance women and institutions are invariably struck down. Certain regulatory provisions have been upheld with the intention of protecting the women from exploitation. The judgment is a win-win situation for the freedom of women and freedom of employment that has been always discredited upon women.

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