• Ms. Kanika Balhara

Indian Hotel and Restaurant Association v. The State of Maharashtra ((2019) 3 SCC 429)

CASE

Indian Hotel and Restaurant Association v. the State of Maharashtra


CITATION

(2019) 3 SCC 429


CORAM

Supreme Court of India

Division Bench - Hon’ble Justice A.K. Sikri and Hon’ble Justice Ashok Bhushan


ALSO KNOWN AS

Maharashtra Dance Bars Case


POINT OF CONSIDERATION

The validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 vis-a-vis rights guaranteed under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India


FACTS

  1. The instant writ petitions were filed under Article 32 of the Constitution of India, challenging 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 which the Petitioners contends violate the Fundamental Rights of the Petitioners guaranteed under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India.

  2. As per the respondent State, it noticed that prostitution rackets were being run in hotel establishments in which dance programmes were being conducted. Even such dance forms were observed as obscene by the State.

  3. This resulted in the formation of a Committee for suggestions to deal with aspects mentioned above. After considering guidelines given by the aforesaid Committee and independent studies on socio-economic situations of women involved in dance bars.

  4. Section 33A and 33B were added vide Bombay Police Amendment Act, 2005 in Maharashtra Police Act, 1951, (erstwhile Bombay Police Act, 1951) which prohibited any kind of dance performance in an eating-house, permit room or beer bar.

  5. The said amendment was struck down as unconstitutional by the High Court of Bombay and that judgment of the High Court was upheld by Supreme Court in the matter of State of Maharashtra & Anr. v. Indian Hotel and Restaurants Association & Ors.

  6. Thereafter, the State of Maharashtra introduced a fresh provision vide amendment in the year 2014 referred to as Maharashtra Police (Second Amendment) Act, 2014 and added Section 33A to the Maharashtra Police Act, 1951, while Section 33B came to be deleted.

  7. Supreme Court, vide order dated October 15, 2015, stayed the operation of the provisions enshrined under Section 33A(1) of the Act with a rider that no performance of dance shall remotely be expressive of any kind of obscenity. It is, thereafter, that the State enacted the impugned Act and the Rules, certain provisions whereof had been challenged in these petitions.


ISSUES RAISED & RATIO

  • Whether Section 6(4) of the Act is violative of equality clause enshrined in Article 19(1) of the Constitution?

The above provision 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 submission was made that there is no rationale for such a provision. The reply given by the respondents was that the purpose behind the aforesaid provision is to put stringent licence conditions for dance bars, which would not be possible if discotheque or orchestra as also on the same place where there is a dance bar. We hardly find this to be a valid justification.


The impugned provision, in the view of the apex court, was found totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved. The Supreme Court, therefore, struck down Section 6(4) of the Act as unconstitutional.

  • Whether punishment provided under Section 8(2) of the Act is discriminatory and offends Article 14 of the Constitution?

Obscenity is also an offence under Section 294 IPC which is punishable with imprisonment that may extend to three months. In contrast, as per the impugned provision, the imprisonment may extend to three years.


It was argued that for the same offence, whereas the Central Act prescribes imprisonment up to three months, the prescription of imprisonment up to three years in Section 8(2) of the Act is violative of Article 14 and is in conflict with the IPC i.e. the central law. As rightly argued by the respondents, sub-section (2) has to be read along with sub-section (1) of Section 8. Under Section 8(1), if the place is used in contravention of Section 3, it is made a punishable offence. It means that where a hotel, restaurant, barroom or any place is used for staging dances without obtaining a licence under Section 3 of the Act, that is made a punishable offence.


However, even if the 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 Section 8(2) is somewhat different from the offence that is stipulated in Section 294 IPC. The challenge to the validity of Section 8(2) of the Act, therefore, fails.

  • Whether Section 8(4) of the Act is arbitrary and violative of Article 14?

This provision makes 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 is banned and treated 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 is 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. According to the respondents, Section 354A of IPC which is a moral code of the society and the State is only attempting to preserve this moral code by enacting such a provision.


The Court was of the opinion that insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident as the aforesaid 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 the 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. The Court, therefore, upheld the provision 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 the notes to the dancers personally is not inappropriate. The Court also set aside the provision of giving the tips only by adding the same in the bills.


IMPORTANT CASES REFERRED

  1. Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43

  2. State of Maharashtra & Anr. v. Indian Hotel and Restaurants Association & Ors (2013) 8 SCC 519

  3. Gaurav Jain v. Union of India [(1997) 8 SCC 114: 1998 SCC (Cri) 25

  4. The state of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534: AIR 2006 SC 212

  5. State of Punjab v. Devans Modern Breweries Ltd.[(2004) 11 SCC 26]

  6. State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699]

  7. State of Bihar v. Bihar Distillery Ltd. [(1997) 2 SCC 453]

  8. Engineering Kamgar Union v. Electro Steels Castings Ltd. and Another (2004) 6 SCC 36

  9. Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277

  10. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

  11. Bachan Singh v. the State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580]

  12. K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1

  13. Ranjit D. Udeshi v. the State of Maharashtra (1965) 1 SCR 65

  14. Pawan Kumar v. State of Haryana & Anr. (1996) 4 SCC 17

  15. Ajay Goswami v. Union of India & Ors. (2007) 1 SCC 143

  16. State of Tamil Nadu represented by its Home Secretary, Prohibition and Excise Department & Ors. v. K. Balu & Anr. (2017) 2 SCC 281

  17. Amitabh Bachchan Corporation Ltd. v. Om Pal Singh Hoon 1996 SCC Online Del 268



The author is a law graduate from University School of Law & Legal Studies, GGS IP University, New Delhi.

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