It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling, prostitution etc. It is also to be noted that standards of morality in a society change with the passage of time
|Case name:||Indian Hotel And Restaurant Association (Ahar) & Anr. V/S The State Of Maharashtra And Ors.|
|Case number:||Civil appeal number-576, 24, 119 of 2016|
|Court:||The supreme court of India Civil appellate jurisdiction|
|Bench:||JUSTICE A.K. SIKRI, JUSTICE ASHOK BHUSHAN|
|Decided on:||JANUARY 17, 2019|
|Relevant Act/Sections:||Article 14, 15, 19 (1)(a), 19 (1)(g), 21, 32 of the Constitution, the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, The Trade Unions Act, 1926, The Bombay Prohibition Act, 1949, The Bombay Police Act, 1951, Section 33 of the Maharashtra Police Act, 1951.|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- The instant writ petitions have been preferred under Article 32 of the Constitution of India, challenging certain provisions of the 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 the ‘Act’) and also the Rules framed there under being the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 (hereinafter referred to as the ‘Rules’) which, as the Petitioners submit, violate the Fundamental Rights of the Petitioners guaranteed under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India.
- The petitioner seeks to highlight plight of that petitioner No. 1 in Writ Petition (Civil) No. 576 of 2016 is an Association of various Hotel Owners and Bar Owners and/or Conductors of the same, who carry on business of running Restaurants and Bars in Mumbai and is duly registered under the Trade Unions Act. Petitioner No. 2 is the secretary of petitioner No. 1 and is a citizen of India, who runs a restaurant and bar.
- The petitioner in Writ Petition (Civil) No. 24 of 2017, R.R. Patil Foundation is a registered Union under the provisions of the Bombay Public Trust Act and the President thereof has been authorized to file the writ petition. The petitioner in Writ Petition (Civil) No. 119 of 2017 is the Bhartiya Bar girls Union, registered under the Trade Union Act, 1926 and represented through its president. The petition is filed in a representative capacity on behalf of a large number of women dancers, singers and waitresses.
- The instant writ petitions have been preferred under Article 32 of the Constitution of India, challenging certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016. and also the Rules framed there under being the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 (hereinafter referred to as the ‘Rules’) which, as the Petitioners submit, violate the Fundamental Rights of the Petitioners guaranteed under Articles 14, 15, 19 (1) (a), 19 (1)(g) and 21 of the Constitution of India.
- As per the respondent State, it noticed that prostitution rackets were being run in hotel establishments in which dance programes were being conducted. Even such dance forms were observed as obscene by the State. This resulted in the formation of a Committee for suggestions to deal with aspects mentioned above.
- PROCEDURAL HISTORY
- Any person intending to start an Eating House and Restaurant is required to obtain permission from the Municipal Corporation under the Mumbai Municipal Corporation Act as also the Food and Drugs Administration. After a Grade-I licence is granted to the establishment, and the establishment complies with the requirements under Rules 44 and 45 of the Bombay Foreign Liquor Rules, 1953 framed under the provisions of the Bombay Prohibition Act, 1949, the establishment is granted an FL III licence for sale of Indian Made Foreign Liquor (IMFL) in the Restaurant.
- Further, persons desiring to serve only Beer in the Restaurant apply for a licence under the Special Permit and Licenses Rules framed under the provisions of the Bombay Prohibition Act, 1949 and are granted licenses in Form ‘E’ for running a Beer Bar. The persons having Eating Houses besides obtaining an FL III or Form ‘E’ licence under the provisions of the relevant Rules framed under the Bombay Prohibition Act, 1949, are required to have licence under the Bombay Police Act, 1951, called the Public Entertainment Licence, from respondent No.2, which is the Licensing Authority under the Rules framed for Licensing and Controlling Places of Public Entertainment in Greater Mumbai, 1953.
- Further, any restaurant owner desiring to have music and dance or either music or dance in the restaurant is also required to obtain Premises and Performance Licence under the Rules for Licensing and Controlling Places of Public Amusements (other than Cinemas) and Performances for Public Amusement, including Melas and Tamasha’s Rules, 1960 (hereinafter referred to as the ‘Amusement Rules’) framed by respondent No.2 under the powers vested in him under Section 33 of the Maharashtra Police Act, 1951.The commissioner of police can frame rules for the people safety, morality and especially decency. The Commissioner of Police has accordingly framed Rules for Licensing and Controlling Places of Public Entertainment, 1953 and the Amusement Rules. According to the provisions of Chapter 8 of the said Amusement Rules, a Premises Licence is granted after all the requirements under Rules are complied with.
- Thereafter, the State of Maharashtra introduced a fresh provision vide amendment in the year 2014 referred to as Maharashtra Police (Second Amendment) Act, 2014 and added Section 33A to the Maharashtra Police Act, 1951, while Section 33B came to be deleted. A petition bearing Writ Petition (Civil) No.793 of 2014 came to be filed in this Court, on behalf of Indian Hotel and Restaurants Association under Article 32 of the Constitution of India, whereby the Maharashtra Police (Second Amendment) Act, 2014 vide which vires of Section 33A, came to be challenged on the ground of the same being violative of Article 14, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India.
- The Court, vide order dated October 15, 2015, stayed the operation of the provisions enshrined under Section 33A(1) of the Act with a rider that no performance of dance shall remotely be expressive of any kind of obscenity. It is, thereafter, that respondent No. 1 enacted the impugned Act and the Rules, certain provisions whereof have been challenged in these petitions.
- ISSUE BEFORE THE COURT:
- Whether the question raise is that regarding the new act and new rules is there any conflict between state act and central law?
- The question is to what extent the State can go in imposing ‘morality’ on its citizens?
- The question is when can an object be said to be obscene?
- Whether Section 6(4) of the Act is violates of equality clause enshrined in Article 19(1) of the Constitution?
- Whether punishment provided under Section 8(2) of the Act is discriminatory and offends Article 14 of the Constitution?
- Whether Section 8(4) of the Act is arbitrary and violates of Article14?
- RATIO OF THE COURT:
- The court held that In Indian Hotel and Restaurants Association case, Section 33A was held to be unconstitutional as it was found foul of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. The court had reproduced Section 33A of the said Act as well as the Statement of Objects and Reasons appended to the Bill vide which the aforesaid amendment was introduced. The main purpose behind inserting Section 33A in Maharashtra Police Act was to check the performance of dances in eating houses, permit rooms or bear bars in an indecent manner.
- It noted that such places to whom licenses to hold dance performance were granted, were permitting the performance of dances in an indecent, obscene and vulgar manner. Further, such performance of dances were giving rise to exploitation of women and were derogatory to the dignity of women. They were also likely to deprave, corrupt or injure the public morality or morals. Because of these reasons, the Government of Maharashtra considered it expedient to prohibit altogether the holding of such dance performances in eating houses or permit rooms or bear bars.
- To achieve this purpose, Section 33A prohibits holding of the performance of dance, of any kind or type, in any eating house, permit room or bear bar. To make this prohibition effective, all such licenses given earlier were cancelled by the said statutory provision.
- Holding of such performances was also made a punishable offence. At the same time, Section 33B provided exception to Section 33A inasmuch as Section 33A was made inapplicable in certain cases. As per Section 33B, provisions of Section 33A was not to apply to the holding of the dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three-starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf.
- The court observed that Two features of these provisions may be noted: (i) In the first place, there was absolute prohibition of dance performances in the establishments covered by Section 33A. Such dance performances were treated, per se, obscene. In contrast, the present regime prohibits ‘obscene dance’ and defines this term as well. (ii) In contrast, in the establishments covered by Section 33B, there was no bar on such performances. Striking down the provisions of Section 33A as discriminatory, the Court held that there was no reasonable basis for any classification between those places where such performance of dance was prohibited under Section 33A and those places where such a performance was permitted as specified in Section 33B of the Maharashtra Police Act.
- The Court also held that Section 33A offended Article 19(1)(a) of the Constitution inasmuch as dance is a form of expression and the said provision amounted to unreasonable restriction which is not protected by Article 19(2) of the Constitution. Further, the basis on which Section 33A was found to be violative of Article 19(1)(g) may also be relevant. The court, therefore, like to cull out the main features of the discussion contained in Indian Hotel and Restaurants Association. These are: (a) There was little or no material on the basis of which the State could have concluded that dance in the prohibited establishments was likely to deprave, or injure the public morality or morals. While making these remarks, the Court specifically rejected the findings in PRAYAS and Shubhada Chaukar’s Reports. (b) Argument of the State to justify the provision based on intelligible differentia, viz., that women who perform in the banned establishmentcome from grossly deprived backgrounds and are a vulnerable lot who are trafficked into bar dancing, was specifically rejected by pointing out that there was no material/evidence to support such a plea. Nothing in this behalf was stated in the Statement of Objects and Reasons and this plea was projected for the first time in the affidavit filed before the High Court.
- The Court, in the process, held that such a plea was based on PRAYAS and Shubhada Chaukar’s Reports. In the opinion of the Court, isolated examples given therein would not be sufficient to establish the connection of dance bars covered under Section 33A with trafficking. (c) Performance of dance in such places could not be covered by the principle of res extra commercium. Prohibition on such a commercial activity, which was a fundamental right, had to meet the test of ‘reasonable restriction’. However, held the Court, the State had failed to establish that the restriction is reasonable or that it is in the interest of general public. (d) There are already sufficient rules and regulations and legislations in place which, if efficiently apply, would control (if not eradicate) all the dangers to the society enumerated in the preamble and the Statement of Objects and Reasons of the impugned legislation.
- The Court held, in para 132 of the judgment, that the Rules under the Bombay Police Act have been framed in the interest of public safety and social welfare and to safeguard the dignity of women as well as to prevent exploitation of women. There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws, except for the unfounded conclusions recorded in the Preamble as well as the Statement of Objects and Reasons. Argument of the State that impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with the problem of ever increasing dance bars, was specifically rejected.
- . A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. 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’. Furthermore, and in any case, any legislation of this nature has to pass the muster of constitutional provisions as well.
- This provision forbids grant of license for discotheque or orchestra where license under this Act is granted. It means that in respect of a particular place, a license would be granted either for dance bars or for discotheque/orchestra and not for both purposes. The reply given by the respondents is that the purpose behind the aforesaid provision is to put stringent license conditions for dance bars, which would not be possible if discotheque or orchestra as also on the same place where there is a dance bar. We hardly find this to be a valid justification. The impugned provision, in court’s view, is totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved. The court, therefore, strike down Section 6(4) of the Act as unconstitutional.
- According to court’s opinion that insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident as the aforesaid Act has tendency to create a situation of indecency. Therefore, whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins etc. However, there may not be any justification in giving such tips only by adding thereto in the bills to be raised by the administration of the place. On the contrary, if that is done, the person who is rightful recipient of such tips may be denied the same.
- Further, 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 court, therefore, uphold the provision insofar as it prohibits throwing or showering of coins, currency notes or any article or anything which can be monetised on the stage. However, handing over of the notes to the dancers personally is not inappropriate. The court also set aside the provision of giving the tips only by adding the same in the bills.
- As far as condition No.11 of Part A is concerned which stipulates that the place where dance is to be performed shall be at least 1 km away from the educational and religious institutions, 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, license would be granted. Therefore, this condition is also held to be arbitrary and unreasonable and is quashed, with liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.
- Condition No. 12 of Part B prescribes serving of alcohol in the bar room where dances are staged. This is totally disproportionate, unreasonable and arbitrary. The court saw no reason as to why the 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. However, such conditions have been held to be unreasonable by the Courts. There may be aberrations or sporadic incidents of this 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. There cannot be a complete prohibition from serving alcoholic beverages. The court therefore, quash condition No. 12.
- DECISION HELD BY COURT:
- In this case the judgement was given by JUSTICE A.K.SIKRI that the court re-emphasised that the State cannot take exception to staging dance performances per se. It appears from the history of legislative amendments made from time to time that the respondents have somehow developed the notion that such performances in the dance bars do not have moralistic basis. Initially the law was passed in the year 2005 by inserting Sections 33A and 33B in the Maharashtra Police Act, 1951. At that time, by the said amendment, State desired total prohibition on the performance of dance in eating house, permit room or bear bar on the premise that such performances are always indecent, obscene or vulgar. It was also on the notion that such performances were giving rise to exploitation of women as well.
- However, while upholding the decision of the High Court declaring Section 33A of Maharashtra Police Act, 1951 to be unconstitutional, this Court found and specifically held that there was no material or empirical data in the aforesaid perception garnered by the State. This Court also held that the impugned provision did not pass the muster of constitutional provisions as it was found to be violates of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution.
- The present legislation is given a cloak of bringing regulatory regime to regulate the places where there are dance performances. For this purpose, the impugned Act does not permit dance performances without obtaining license under Section 3 of the Act. Further, it makes obscene dances as penal offence. No quarrel on this.
- However, at the same time, many conditions are stipulated for obtaining the license, which are virtually impossible to perform. It is this reason that not a single establishment has been issued license under the impugned Act even when it was passed in the year 2014. In fact, after the amendment in Maharashtra Police Act in 2005, no license have been granted for dance bars. Thus, even when the impugned Act appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars. The State, thereby, is aiming to achieve something indirectly which it could not do directly. Such a situation is beyond comprehension and cannot be countenanced. The court had quashed those provisions of the Act and the Rules which the court had found as unreasonable and unconstitutional. The court hopes that applications for grant of license shall now be considered more objectively and with open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act.
- The writ petitions stand partly allowed and are disposed of in the aforesaid terms.