The Supreme Court Thursday paved the way for grant of licences and re-opening of dance bars in Maharashtra by setting aside certain stringent provisions of a 2016 law and said the state cannot exercise "social control" with its own "notion of morality".
The apex court, while quashing certain provisions of the 2016 act which imposed several restrictions on licensing and functioning of dance bars, said it hoped that state would now consider applications for grant of licences "with open mind" so that there is no complete ban on staging dance performances at designated places.
A bench comprising Justices A K Sikri and Ashok Bhushan noted in their judgement that after amendment in the Maharashtra Police Act in 2005, no licences have been granted for dance bars and though the 2016 act "appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars".
The top court quashed a condition of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (working therein) Act, 2016 which mandated installation of CCTV cameras in dance bars saying it was "totally inappropriate and amounts to invasion of privacy".
It, however, upheld the condition which fixed timing of dance performances only between 6 pm to 11:30 pm saying "we do not find it to be manifestly unreasonable".
The Bharatiya Bar Girls' union president Varsha Kale, who has been fighting for the cause of bar dancers, said over 75,000 women were employed in dance bars when the state government decided to shut them down in 2005. Around 35,000 were still working as waiters and singers, she claimed.
"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," the bench said.
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"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'," the apex court said. It further noted, "The question is to what extent the state can go in imposing 'morality' on its citizens?".
The court delivered the verdict on petitions -- filed by association of various hotel owners and bar owners, R R Patil Foundation and Bhartiya Bargirls Union -- challenging certain provisions of the 2016 act and the rules.
The bench said money can be given to performers in the dance bar but throwing or showering coins and currency notes at them cannot be allowed.
Dealing with a condition of the act which stipulated that a dance bar should be located at least one kilometre away from educational and religious institutions, the court said it amounted to "fulfilling an impossible condition" as it is difficult to find any place in Mumbai which is one kilometre away from such institutions.
The court held as "unconstitutional" a provision of the act which forbid grant of licence for discotheque or orchestra in the state.
Regarding a rule under the act which stipulated that only those persons, who possesses a 'good character' and have not criminal record for last 10 years, were entitled to hold licence for dance bars, the bench said these terms were "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," it said.
It also struck down the provision of the 2016 law which mandated that there must be a fixed partition between bar rooms and the dance floor. The court also dealt with a condition which imposed an obligation on the employers to the effect that working women, dancers and waiters/waitresses must be employed under a written contract on a monthly salary.
It said as far as the condition of entering into a written contract and depositing of remuneration in bank accounts is concerned, it appears to be "justified" but the condition of employing such persons on monthly salary "does not stand the judicial scrutiny".
"More importantly, the state government has failed to show any compelling public interest to curtail the choices of women performers," it said.
It said one of the conditions which deals with serving of alcohol in the bar room where dances are staged was "totally disproportionate, unreasonable and arbitrary".
"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," it said.
The bench noted that some of the conditions and restrictions imposed by the act and the rules were such "which are impossible to perform and, therefore, in each and every case, without exception, the applications for grant of licence under this act have been rejected".
The court upheld the provision which prohibited any obscene dance and exploitation of any working women for any immoral purpose and prescribed punishment of up to three years or fine up to Rs 10 lakh.
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