|Category||Right to Work|
|Date of Judgment||24-07-2015|
|Link / Attachment||https://www.escr-net.org/sites/default/files/caselaw/full_judgment_3.pdf|
The Supreme Court today reserved its decision on the constitutionality of the ban on dance performances in bars in Maharashtra imposed under the Bombay Police (Amendment) Act of 2005. Introduced in August 2005, section 33A of the Bombay Police Act prohibited ‘any type of dancing’ in an “eating house, permit room or beer bar” while section 33B allowed dance performances in three star and above hotels and other ‘elite’ establishments. The ban was immediately contested by bar owners and dancers’ unions. On 12 April 2006, the Bombay High Court struck it down on the grounds that the prohibition on dancing violated the right to carry on one’s profession/occupation under Article 19(1)(g) of the Constitution. The High Court also held that banning dances in some establishments while permitting them in others was contrary to the rule of equality enshrined in Article 14. The Maharashtra Government appealed, and in May 2006, obtained a stay against the High Court’s judgment.
After seven years, the Supreme Court concluded the hearing in State of Maharashtra v Indian Hotel and Restaurants Association and Anr, Civil Appeal No. 2705 of 2006. A bench comprising the Chief Justice of India Altamas Kabir and Justice Surinder Singh Nijjar heard arguments on behalf of the State of Maharashtra, bar owners, dancers, feminist groups and other social organizations.
The State of Maharashtra sought to justify the ban in public interest, alleging that bar dancing is obscene and vulgar and depraves morals, fuels trafficking and prostitution and causes exploitation of women who dance in the bars.
Representing some dancers and women’s groups in the case, the Lawyers Collective (LC) defended the Bombay High Court’s decision. LC submitted that besides being a profession/occupation, dancing is also a medium of expression and protected under Article 19(1)(a) as a fundamental right. Citing Article 15, LC argued that the ban on bar dancing was based on stereotypical notions of gender and perpetuated sex-discrimination. State’s paternalism could not trump women’s rights to autonomy, self determination and equality. LC also pointed out that the law fails the test of substantive fairness as it curtails dancers’ livelihood without offering alternative employment. It is disproportionate to the purpose sought to be achieved, that is, to prevent obscene performances and makes an unfair distinction between establishments where dances are allowed and where they are not.
On 24th July 2015, the Supreme Court heard a petition filed by Indian Hotel and Restaurant Association challenging this second ban on dance bars. The petition noted that the State Government had blatantly disregarded the Supreme Court judgment in 2013. The Supreme Court has twice before directed the state to reply to this current petition without success. Now the Supreme Court has again given the state government three weeks as a final opportunity to file its reply, and has adjourned the matter for hearing after seven weeks. As the legal battle continues a full decade after the first ban, the fate of over 75,000 women continues to be on hold.