Maharashtra Dance Bar Case: A Study in Regulatory Overreach


Case Name: Indian Hotel and Restaurant Association (AHAR) & Anr. v. The State of Maharashtra & Ors.

Citation: 2019 INSC 52 

Background:

  • This case involves a batch of three Writ Petitions filed under Article 32 of the Constitution of India, challenging the constitutional validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, and the associated Rules of 2016. The petitioners argued that the Act and Rules violated their fundamental rights under Articles 14, 15, 19(1)(a), 19(1)(g), and 21 of the Constitution.
  • The primary petitioner, the Indian Hotel and Restaurant Association (AHAR), is an association of hotel and bar owners in Mumbai. Other petitioners included the R.R. Patil Foundation and the Bhartiya Bargirls Union, representing women dancers, singers, and waitresses.
  • The State of Maharashtra and its various departments were the respondents.

Historical Context & Legislative Changes:

  • The case has a long history, with the State of Maharashtra previously attempting to regulate and prohibit dance performances in eating houses, permit rooms, and beer bars.
  • Amendments to the Bombay Police Act in 2005 introduced Sections 33A and 33B, which prohibited dance performances in certain establishments but were later struck down as unconstitutional.
  • The state then introduced a fresh provision in 2014, again adding Section 33A to the Maharashtra Police Act, 1951, while deleting Section 33B. This was also challenged, leading to the enactment of the impugned Act and Rules that are the subject of this case.
  • The petitioners argued that despite court orders, licenses were not being granted, demonstrating the state's intention to impose an absolute ban on dance bars.

Key Issues and Arguments:

  • The petitioners challenged several provisions of the Act and Rules, arguing that they were unreasonable, arbitrary, and violated fundamental rights.
  • Key arguments against the Act and Rules included:
    • Restrictions on obtaining licenses were too stringent and impossible to fulfill.
    • Conditions related to the size of the stage, partitions, and the distance from educational and religious institutions were unreasonable.
    • Prohibiting certain activities like showering money was arbitrary and violated Article 14.
    • Requiring CCTV cameras was a violation of privacy.
  • The State justified the regulations in the interest of public order, decency, and the protection of women from exploitation.
  • The State invoked the principle of res extra commercium, arguing that there is no fundamental right to engage in activities that are inherently immoral or harmful.

Court's Consideration and Decision:

  • The Court referenced its earlier judgment in Indian Hotel and Restaurants Association (1), where similar provisions were struck down.
  • The Court examined the State's justifications for the restrictions, including concerns about morality, exploitation, and public order.
  • The Court quashed several provisions of the Act and Rules that were deemed unreasonable or unconstitutional.
    • The Court struck down the condition requiring a non-transparent partition between the bar room and other areas.
    • The Court also addressed the installation of CCTV cameras, modifying the condition to only require cameras at the entrance.
    • Condition No. 16 of Part B, related to verification of ‘good character’ was set aside.
  • The court allowed the operation of dance bars under certain regulatory conditions, emphasizing that there should not be a complete ban on staging dance performances.

Outcome:

  • The Supreme Court allowed the operation of dance bars but under certain regulations. The unreasonable and unconstitutional provisions of the Act and Rules were quashed.
  • The court hoped that applications for licenses would be considered more objectively, without a complete ban on dance performances.

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