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Case Brief: Indian Hotel and Restaurant Association (Ahar) & Anr. v. The State of Maharashtra
FACTS OF THE CASE:
Initially, the case emerged when the State Government of Maharashtra amended the Maharashtra Police Act, 1951. The state added Sections 33A and 33B which prohibited any kinds of dancing in restaurants, bars, and hotels with an exception under Section 33B; where the dance performance was only permitted in hotels, theatres, clubs rated above three stars. The Bombay High Court ruled this section arbitrary and unconstitutional and thus the amendment was struck down.
The State again in 2014 introduced another amendment in the Maharashtra Police Act, 1951, eliminating Section 33B but instead adding Section 33A which banned dancing in hotels. A writ petition was filed by the Indian Hotel & Restaurant Association challenging the constitutional validity of the amended act. The State also filed a counter-affidavit opposing the writ petition. In the said case, the Supreme Court of India stayed the operation of the provision and upheld the judgment of Bombay High Court highlighting that no dance performance is possible inclusive of any kind of obscenity.
The State with strict implications to ban the dance bars, introduced legislation in 2016 imposing various restrictions on restaurants and bar dancers. It also incorporated the word “obscenity” in dance shows and prohibited it. The Preamble of the act signifies that the act prohibits obscene dance performances and it also was enacted to protect the women working in such conditions from exploitation and to improve their work condition Section 3 of the act defined terms like "obscenity", “bar room" “dancer”. It imposes strict restrictions on the part of the restaurants to obtain a license and duty to comply with the rules.
Section 8 of the Act prescribed penal provisions for non-compliance with the Act. It also imposed a fine of up to 10 lakhs and imprisonment of 5 years. Certain offenses were also prescribed as even cognizable and non-bailable. The provision of the act puts forward restriction on throwing or showering of money or any materials that had a monetary value attached to it.
ISSUES:
The major issue surrounding the act was to check the constitutional validity of it and its provisions that are said to regulate and protect the bar dancers from exploitation.
1. It pertains to the definition of "obscene dance" defined under Section 2(8)(i) of the Act.
2. Whether Section 6(4) of the Act violative of Article 19(1) of the Constitution?
3. Whether the penal provisions under Section 8(2) are discriminatory of Article 14 of the constitution?
4. Whether Section 8(4) of the said act arbitrary of Article 14 of the Constitution?
5. Whether Rule 3 of the Act is constitutionally legal?
ARGUMENTS BY THE PARTIES:
PETITIONER-
Section 6(4) of the Act IS violative of articles 14 and 19 (1) of the Constitution. The purpose behind this provision was to make sure that there would not be a license for a place, both for dance bars and discotheque or orchestra. The petitioner also argued that there was no rationale behind such a provision based on intelligible differentia. It was argued that the dance that amounts to obscenity is already an offense under Section 294 of the Indian Penal Code and is punishable with imprisonment which may extend up to three months. It was further said that such a provision (section 6(4) of the Act) was arbitrary and violative of Article 14, there was a clear conflict between the central law (i.e. the IPC) and the State Act (the impugned Act). Therefore, the section of the amended act needs to be struck down. It was brought before the bench that the prohibition under section 8(4) was only for the dancers and not singers or waitresses working in the same dance bars or hotels. the point of argument was that giving such things to a dancer only amounts to tipping her on an appreciation of her performance which was the same thing as appreciating a singer for her performance or a waitress for her service and there was absolutely nothing wrong about it and such an act cannot be made an offense. It was, therefore, grossly arbitrary and violative of Article 14 of the Indian constitution.
RESPONDENT-
Section 2(8) of the Act which defines ‘obscene dance’ was well defended by arguing that the expression ‘prurient interest’ has a definite meaning in the dictionary and this expression finds presence in Section 292 of the IPC as well which makes obscenity an offense. Section 8(1) makes the Act of using the place in contravention of Section 3 an offense. In the same manner, it was argued that Section 8(2) is a separate offense prescribed in the law that is under the Maharashtra Act which is different and distinct from Section 292 of the Indian Penal Code (IPC). In respect of Section 8(4), the defendant submitted that it’s a matter of cultural ethos of the society as a whole. It was further said that such a provision of showering money on the dancer is a method of inducement which has to be checked. According to the defendants, Section 354A of IPC which is a moral code of the society and the State is only attempting to preserve this moral code of conduct by bringing in such an amendment.
CONCLUSION:
The Judgment pronounced is really a boon to women and various institutions from being unemployed. The judgment took a modern view deviating from the age-old concepts of morality and prejudges of the past. The judgment clearly defines and interprets the act saying that the provisions that are in violation of the Constitution and are unjust to the dance women and institutions are invariably struck down. Certain regulatory provisions have been upheld to protect women from exploitation.
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