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Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.2(8)(i) – Constitutional validity of, challenged on the ground that the expression ‘arouse the prurient interest of the audience’ is vague, incapable of giving precise meaning thereto – Held: Such plea not accepted for the reason that in explaining as to what kind of books, pamphlets, papers, writings, drawings, paintings, representations, figures or any other object will be deemed as obscene, s.292 of the IPC itself uses this very expression when it lays down that such books etc. shall be deemed to be obscene if they are ‘lascivious or appeals to the prurient interest...’ – In a way, therefore, s.2(8) incorporates the definition of obscenity as laid down in the IPC which also makes obscene books etc. (s.292 IPC) as well as obscene acts and songs (s.294 IPC) as punishable offences – Prurient interest in the context of dance performance would be a performance which has or which encourages an excessive interest in sexual matters – It cannot be said that a dance which is aimed at arousing the prurient interest of the audience is vague term, incapable of definite connotation – It is, more so, when s.292 IPC particularly uses this expression in the deeming provision relating to obscenity – – Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Penal Code, 1860 – s.294 – Constitution of India – Arts.14, 15, 19(1)(a) and 21. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.6(4) – Forbidding grant of licence for discotheque or orchestra where licence under this Act is granted – Whether s.6(4) is violative of equality clause enshrined in Art.19(1) of the Constitution – Held: s.6(4) forbids grant of licence for discotheque or orchestra where licence under this Act is granted – Conversely it also forbids grant of licence under this Act for the place for which a licence for discotheque or orchestra has been granted – It means that in respect of a particular place, a licence would be granted either for dance bars or for discotheque/orchestra and not for both purposes – The impugned provision is totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved – s.6(4) of the Act is struck as unconstitutional – Constitution of India – Art.19(1). Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.8(2) – Whether punishment provided under s.8(2) of the Act is discriminatory and offends Art.14 of the Constitution – Held: Sub-section (2) has to be read along with sub- section (1) of s.8 – Under s.8(1), if the place is used in contravention of s.3, it is made a punishable offence – It means that where a hotel, restaurant, bar room or any place is used for staging dances without obtaining a licence under s.3 of the Act, that is made a punishable offence – However, even if licence is obtained, that would not mean that place can be used for obscene dance performances or for exploiting working women for any immoral purpose – It is these acts which are made punishable under sub-section (2) – In this manner, the offence under s.8(2) is somewhat different from the offence that is stipulated in s.294 IPC – Challenge to the validity of s.8(2) of the Act, therefore, failed – Constitution of India – Art.14. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – s.8(4) – Whether s.8(4) of the Act is arbitrary and violative of Art.14 – This provision is to be read with condition Nos. 6, 7 and 8 of Part B – It banned throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such notes, to a dancer and treated it as an offence – Further stipulation in these provisions is that any tip to be given should be added in the bill only and is not to be given to the performers etc. – The justification given by the State was that showering of money etc. is a method of inducement which has to be curbed keeping in view that Act aims to protect the dignity of women – Held: Insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident since the said 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 – Therefore, the provision is upheld 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 provision of giving the tips only by adding the same in the bills is also set aside – Constitution of India – Art.14. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – r.3(3)(i) – Legality of, challenged on the ground that it is vague – As per this sub-rule, a person is entitled to obtain or hold licence who possesses a ‘good character’ and ‘antecedents’ and he should not have any history of ‘criminal record’ in the past ten years – Held: The terms ‘good character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise – These expressions are capable of any interpretation and, therefore, is left to the wisdom of the licensing authority to adjudge whether a particular person possesses good character or good antecedents or not – Likewise, insofar as history of criminal record is concerned, it is not spelled out as to whether such a criminal record is based on conviction in a case or mere lodging of FIR would be termed as criminal record – Therefore, the provision is quashed in the present form, but, at the same time, liberty is given to the rule making authority to have suitable provision of precise nature – Consequently, condition No. 16 of Part B in the present form is also set aside. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 2 of Part A of general conditions (GOC) – Stage in bar room has to be with non-transparent partition between hotel, restaurant and bar room area – In essence, it segregates bar room area from hotel and restaurant i.e. it prescribes fixed partition between permit room and dance room – Justification of – Held: There is no rationality in imposing such a condition having regard to any objective sought to be achieved – Therefore, this provision is struck down. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No.11 of Part A – Stipulation that the place where dance is to be performed should be at least 1 km away from the educational and religious institutions – Held: Such a condition does not take into account the ground realities particularly in the city of Mumbai where it is 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, licence would be granted – Therefore, this condition is also 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. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No.2 of Part B – Imposition of an obligation on the employers to the effect that working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary and their monthly salary should be deposited in their bank accounts with all the benefits required under the law and copy of such contracts should be deposited with the licensing authority as well – Held: The provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts is justified as it make the conditions on which such working women, dancers and waiters/waitresses are employed, transparent thereby eliminating or minimising any chances of exploitation or other disputes – However, the condition of employing such persons on monthly salary impinges upon the rights of such workers as well who may, otherwise, be free to give their performances at more than one place – This imposes condition of employment in a particular manner i.e. on monthly basis – There can be other modes of employment permissible in law and the employers have legal right to adopt such modes – Therefore, it imposes restriction even upon such employees and infringes their right under Art.19(1)(g) – The State Government failed to show any compelling public interest to curtail the choices of women performers – This part of Condition No. 2 is set aside – However, the provisions for written contract, deposit of the remuneration in the bank accounts of the employee as well as submission of these written contracts with the licensing authority are appropriate – Constitution of India – Art.19(1)(g). Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 9 of Part B – Prescribing timing of dance performances only between 6 pm to 11:30 pm – Held: It is not manifestly unreasonable – Merely because establishments are otherwise open until 1:30 am (next day) or 12:30 am (next day) does not mean that the State has no power to restrict the time of dance performances till 11:30 pm. – Even a period of 6 pm to 11:30 pm for dance performances is quite sufficient and substantial as it allows 5½ hours of such performances – This condition is upheld. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 12 of Part B – Prescribing that no alcohol should be served in the bar room where dances are staged – Held: This is totally disproportionate, unreasonable and arbitrary – There is no reason as to why the liquor cannot be served at such places – State seemingly 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 – Other measures have to be adopted to check such a nuance – There cannot be a complete prohibition from serving alcoholic beverages – Therefore, condition No. 12 is quashed. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Condition No. 20 of Part B – Installing of CCTV Cameras – This would be totally inappropriate and amounts to invasion of privacy and is, thus, violative of Arts.14, 19(1)(a) and 21 of the Constitution – Constitution of India – Arts.14, 19(1)(a) and 21.Morality – Extent to which the State can go in imposing morality on its citizens – Held: 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 – 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’. |
