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of <h1>State cannot impose impossible licensing conditions to achieve indirect prohibition of dance performances</h1> <h3>Indian Hotel And Restaurant Association (Ahar) & Anr. Versus The State Of Maharashtra And Ors.</h3> The SC examined the validity of provisions in the Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women Act, ... Violation of Fundamental Rights - Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms - Protection of Dignity of Women - validity of provisions of Sections 2(8)(i), Section 6(4), Section 8(1)(2) and (4) of Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 - HELD THAT:- 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 licence 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 licence, which are virtually impossible to perform. It is this reason that not a single establishment has been issued licence 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 licences 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. Petition allowed in part. Issues Involved:1. Constitutionality of certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016.2. Constitutionality of certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016.3. Alleged violation of Fundamental Rights under Articles 14, 15, 19(1)(a), 19(1)(g), and 21 of the Constitution of India.4. Specific challenges to Sections 2(8)(i), 6(4), 8(1)(2) and (4) of the Act.5. Specific challenges to Conditions Nos. 2 and 11 of Part A and Conditions Nos. 2, 6, 9, 12, 16, 17, and 20 of Part B of the Schedule attached to the Rules.Issue-wise Detailed Analysis:1. Constitutionality of Section 2(8)(i) of the Act:The petitioners argued that the definition of 'obscene dance' under Section 2(8)(i) is vague and subjective. The Court found that the term 'prurient interest' is well-defined in legal parlance and is used in Section 292 of the IPC, which deals with obscenity. The Court held that the term is not vague and has a definite connotation, thus upholding the constitutionality of Section 2(8)(i).2. Constitutionality of Section 6(4) of the Act:This provision forbids the grant of a licence for discotheque or orchestra where a licence under this Act is granted and vice versa. The Court found this provision to be arbitrary and irrational, lacking any nexus with the objective sought to be achieved. Consequently, Section 6(4) was struck down as unconstitutional.3. Constitutionality of Section 8(2) of the Act:The petitioners contended that the punishment under Section 8(2) is disproportionate compared to Section 294 of the IPC. The Court held that Section 8(2) is distinct from Section 294 IPC as it deals with the use of a place for obscene dance or exploiting women for immoral purposes, which is a different offence. Therefore, the challenge to Section 8(2) failed.4. Constitutionality of Section 8(4) of the Act:Section 8(4) prohibits throwing or showering coins, currency notes, or any monetizable article on the stage or handing them over to a dancer. The Court upheld the prohibition on throwing or showering money but struck down the provision that mandated tips to be added to the bill, as it interfered with the rights of the performers and patrons.5. Constitutionality of Rule 3(3)(i) and Condition No. 16 of Part B:The Court found Rule 3(3)(i), which requires a person to possess 'good character' and 'antecedents' and have no 'criminal record,' to be vague and imprecise. Consequently, this provision and Condition No. 16 of Part B were quashed, with liberty to the rule-making authority to draft a more precise provision.6. Constitutionality of Condition No. 2 of Part A:This condition mandates a non-transparent partition between the hotel, restaurant, and bar room areas. The Court found this condition to be unreasonable and lacking any rational basis, thereby striking it down.7. Constitutionality of Condition No. 11 of Part A:This condition requires the place where dance is performed to be at least 1 km away from educational and religious institutions. The Court found it to be impractical and unreasonable, particularly in a city like Mumbai, and quashed it, allowing the respondents to prescribe a more reasonable distance.8. Constitutionality of Condition No. 2 of Part B:This condition mandates that working women, dancers, and waiters/waitresses must be employed under a written contract on a monthly salary. The Court upheld the requirement for a written contract and deposit of remuneration in bank accounts but struck down the condition of monthly salary as it restricted the freedom of performers to work on a contract basis.9. Constitutionality of Condition No. 9 of Part B:This condition restricts dance performances to between 6 pm and 11:30 pm. The Court found this condition to be reasonable and upheld it.10. Constitutionality of Condition No. 12 of Part B:This condition prohibits serving alcoholic beverages in the bar room where dances are staged. The Court found this condition to be disproportionate and unreasonable, quashing it.11. Constitutionality of Condition No. 20 of Part B:This condition mandates installing CCTV cameras in the bar room. The Court found it to be an invasion of privacy and violative of Articles 14, 19(1)(a), and 21, thereby setting it aside.12. Grievance Redressal Committee:The Court noted that while the representation of bar dancers in the Grievance Redressal Committee may be desirable, the lack of such representation does not invalidate the legislation.Conclusion:The Court struck down several provisions of the Act and the Rules that were found to be unreasonable and unconstitutional. The applications for grant of licenses should now be considered more objectively and with an open mind to ensure that there is no complete ban on staging dance performances at designated places. The writ petitions were partly allowed and disposed of in these terms.
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