# INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2019] 1 S.C.R. 371
- **Court:** Supreme Court of India
- **Decided:** 2019-01-17
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-hotel-and-restaurant-association-ahar-anr-v-the-state-of-maharashtra-ors-33407
- **Pages:** 92

## Headnote

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
[2019] 1 S.C.R. 371
371
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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 subsection (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, c

## Text

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INDIAN HOTEL AND RESTAURANT
ASSOCIATION (AHAR) & ANR.
v.
THE STATE OF MAHARASHTRA & ORS.
(Writ Petition (Civil) No. 576 of 2016)
JANUARY 17, 2019
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
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
[2019] 1 S.C.R. 371
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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 subsection (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
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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 -
INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)
v. STATE OF MAHARASHTRA
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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
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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 51⁄2 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 -
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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'.
Partly allowing the Writ petitions, the Court
HELD: 1. Argument of morality - To what extent the State
can go in imposing 'morality' on its citizens?
There may be certain activities which the society perceives
as immoral per se. It may include gambling, prostitution etc. The
standards of morality in a society change with the passage of time.
A particular activity, which was treated as immoral few decades
ago may not be so now. Societal norms keep changing. Social
change is of two types: continuous or evolutionary and
discontinuous or revolutionary. The most common form of change
is continuous. This day-to-day incremental change is a subtle,
but dynamic, factor in social analysis. It cannot be denied that
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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'. Furthermore, and in any
case, any legislation of this nature has to pass the muster of
constitutional provisions as well. [Para 77][449-A-D]
State of Punjab & Anr. v. Devans Modern Breweries
Ltd. & Anr. (2004) 11 SCC 26 : [2003] 5 Suppl.
 SCR 930; Gobind v. State of Madhya Pradesh & Anr.
(1975) 2 SCC 148 : [1975] 3 SCR 946 - referred to.
2. Principle of res extra commercium. Insofar as dance
performances are concerned, it has already been held that it is
not res extra commercium. The decision in Indian Hotel and
Restaurants Association (1) dealt with the aspects of Human
Trafficking, injury to public morals and res extra commercium.
[Para 78][449-E; 450-C, E]
State of Maharashtra & Anr. v. Indian Hotel and
Restaurants Association & Ors. (2013) 8 SCC 519 :
[2013] 7 SCR 654 - relied on.
3. Re: Section 2(8)(i) of the Act - Section 2(8) defines
obscene dance. In the main body, it states that any dance which
comes within the meaning of Section 294 of IPC and any other
law for time being in force, shall be treated as 'obscene dance'.
The argument is that the definition of obscene dance is expanded
beyond Section 294 of the IPC. The submission is that in Section
2(8)(i), the expression 'arouse the prurient interest of the
audience' is vague, incapable of giving precise meaning thereto.
This submission is 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, Section 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
INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)
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interest...'. In a way, therefore, Section 2(8) incorporates the
definition of obscenity as laid down in the IPC which also makes
obscene books etc. (Section 292 IPC) as well as obscene acts
and songs (Section 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 Section
292 IPC particularly uses this expression in the deeming provision
relating to obscenity. [Paras 79-81, 84, 89][450-G-H; 451-A, CE; 452-C; 455-H; 456-A]
Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43 :
[1980] 1 SCR 1081 - relied on.
Amitabh Bachhan Corporation Ltd. v. Om Pal Singh
Hoon 1996 SCC Online Del 268 : (1996) 37 DRJ 352
(DB) 87 - referred to.
Brockett v. Spokane Arcades Inc. 1985 SCC Online
US SC 165 : 472 US 491 (1985) : 105 S.Ct. 2794;
Patrick v. Minister of Safety and Security 1996 SCC
Online ZACC 8 : [1996] ZACC7 - referred to.
4. Re: Whether Section 6(4) of the Act is violative of
equality clause enshrined in Article 19(1) of the Constitution?
This 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 impugned provision is totally arbitrary and
irrational and has no nexus with the so-called purpose sought to
be achieved. Therefore, Section 6(4) of the Act is struck as
unconstitutional. [Para 90][456-B, D-E]
5. Re: Whether punishment provided under Section 8(2)
of the Act is discriminatory and offends Article 14 of the
Constitution?
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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, bar room 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 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 which is clear from the language of Section 294.
Challenge to the validity of Section 8(2) of the Act, therefore,
fails. [Paras 91, 92][456-G-H; 457-A, D]
6. Re: Whether Section 8(4) of the Act is arbitrary and
violative of Article 14?
This provision is to be read with condition Nos. 6, 7 and 8
of Part B. It 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. 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 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. [Para 93][457-D-H; 458-A]
7. Legality of Rule 3(3)(i) challenged on the ground that it
is quite vague.
INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)
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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. However, the terms 'good character' or 'antecedents' or
'criminal record' are not definite or precise. These expressions
are capable of any interpretation and, therefore, it 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. [Para 95]458-D-F]
8. Condition No. 2 of Part A of general conditions (GOC)
was that size of stage in the bar room should not be less than 10
feet x 12 feet; that the stage in bar room has to be with nontransparent partition between hotel, restaurant and bar room area.
In essence, it segregated bar room area from hotel and restaurant
and Fixed partition is prescribed between permit room and dance
room. There is no objection to the condition that the size of stage
in the bar room should not be less than 10 feet x 12 feet. However,
as regards the partition, there is no rationality or justification in
imposing such a condition which appears to be quite unreasonable
and there cannot be any rationale in this provision having regard
to any objective sought to be achieved. Therefore, this provision
is struck down. [Paras 96, 97][458-G-H; 459-A-C]
9. Condition No.11 of Part A stipulates that the place where
dance is to be performed shall be at least 1 km away from the
educational and religious institutions. 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
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unreasonable and is quashed, with liberty to the respondents to
prescribe the distance from educational and religious institutions,
which is reasonable and workable. [Para 98][459-C-E]
10. Condition No.2 of Part B imposes 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 the copy of such contracts should be deposited with the
licensing authority as well. Insofar as provision relating to
entering into a written contract as well as depositing of the
remuneration in the bank accounts is concerned, it appears to be
justified as it would 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 does not stand the judicial scrutiny.
This shows that such persons are to be employed 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. For example, it could be employment on
contract basis i.e. where the remuneration can be fixed for each
performance. Moreover, it impinges upon the rights of such
workers as well who may, otherwise, be free to give their
performances at more than one place. Therefore, it imposes
restriction even upon such employees and infringes their right
under Article 19(1)(g). The State Government has failed to show
any compelling public interest to curtail the choices of women
performers. This part of Condition No. 2 is set aside. 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.
Rest of the provision is struck down. [Para 99][459-F-H; 460-AD]
11. Condition No. 9 of Part B prescribes timing of such
dance performances only between 6 pm to 11:30 pm. It is not
manifestly unreasonable. Merely because establishments are
otherwise open until 1:30 am (next day) or 12:30 am (next day)
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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 51⁄2 hours of such performances. [Para 100][460-E-F]
12. Condition No. 12 of Part B prescribes that no alcohol
shall be served in the bar room where dances are staged. This is
totally disproportionate, unreasonable and arbitrary. State seems
to be more influenced by moralistic overtones under wrong
presumption that persons after consuming alcohol would
misbehave with the dancers. 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. [Para 101][460-F-H; 461A]
13. Condition No. 20 of Part B mandating installing of CCTV
Cameras is totally inappropriate and amounts to invasion of
privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of
the Constitution. [Para 102][461-B]
K.S. Puttaswamy and Another v. Union of India and
Others (2017) 10 SCC 1: [2017] 10 SCR 569 -
followed.
M.P. AIT Permit Owners Assn. and Another v. State of
M.P. (2004) 1 SCC 320 : [2003] 6 Suppl. SCR 331;
Engineering Kamgar Union v. Electro Steels Castings
Ltd. and Another (2004) 6 SCC 36 : [2004] 1 Suppl.
SCR 301; Nikesh Tarachand Shah v. Union of India
and Another (2018) 11 SCC 1 : [2017] 12 SCR 358;
State of Maharashtra v. Joyce Zee alias Temiko (1973)
ILR 1299 (Bom); Sadhna v. State (1981) 19 DLT 210;
Narendra H. Khurana v. Commissioner of Police (2004)
2 Mah LJ 72; Ram Krishna Dalmia v. Justice S.R.
Tendolkar & Ors. [1959] SCR 279; State of
Maharashtra & Anr. v. Basantibai Mohanlal Khetan &
Ors. (1986) 2 SCC 516 : [1986] 1 SCR 707; M/s Laxmi
Khandsari & Ors. v. State of U.P. & Ors. (1981) 2 SCC
600 : [1981] 3 SCR 92; Ranjit D. Udeshi v. State of
A
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C
D
E
F
G
H
383
Maharashtra [1965] 1 SCR 65; Pawan Kumar v. State
of Haryana & Anr. (1996) 4 SCC 17 : [1996] 2 Suppl.
SCR 392; Director General, Directorate General of
Doordarshan & Ors. v. Anand Patwardhan & Anr. (2006)
8 SCC 433 : [2006] 5 Suppl. SCR 403; Ajay Goswami
v. Union of India & Ors. (2007) 1 SCC 143 : [2006] 10
Suppl. SCR 770; State of Bombay v. R.M.D.
Chamarbaugwala & Anr. [1957] SCR 874; State of
Tamil Nadu represented by its Secretary, Home,
Prohibition and Excise Department & Ors. v. K. Balu &
Anr. (2017) 2 SCC 281 : [2016] 11 SCR 244 - referred
to.
Feminist Contributions from the Margins: Shifting
Conceptions of Work and Performance of the Bar
Dancers of Mumbai XLV Econ. & Pol. Weekly (48)
2010; RCWS (SNDT University, Mumbai), 'Working
Women in Mumbai Bars: Truths behind the controversy'
(Jul' 2005); RCWS (SNDT University, Mumbai),
'After the Ban - Women Working in Dance Bars' (Dec'
2006); Dalwai, Sameena, 'Performing caste: the ban
on bar dancing in Mumbai' Keele University (2012);
Anna Morcom, Courtesans, Bar Girls and Dancing
Boys: Illicit Worlds of Indian Dance (Hachette India,
2014); A. Etzioni and E. Etzioni (eds.), Social Change
(1964); W. Moore, Social Change (1963), W. Moore
and R. Cook (eds.), Readings on Social Change (1967)
- referred to.
Case Law Reference
[2013] 7 SCR 654
relied on
Para 6
[2003] 6 Suppl. SCR 331
referred to
Para 27
[2004] 1 Suppl. SCR 301
referred to
Para 27
[2017] 12 SCR 358
referred to
Para 29
[2017] 10 SCR 569
followed
Para 38
(1973) ILR 1299 (Bom)
referred to
Para 44
(1981) 19 DLT 210
referred to
Para 44
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(2004) 2 Mah LJ 72
referred to
Para 44
[1959] SCR 279
referred to
Para 45
[1986] 1 SCR 707
referred to
Para 45
[1981] 3 SCR 92
referred to
Para 45
[1965] 1 SCR 65
referred to
Para 60
[1996] 2 Suppl. SCR 392
referred to
Para 61
[2006] 5 Suppl. SCR 403
referred to
Para 62
[2006] 10 Suppl. SCR 770
referred to
Para 63
[1957] SCR 874
referred to
Para 70
[2016] 11 SCR 244
referred to
Para 70
[2003] 5 Suppl. SCR 930
referred to
Para 75
[1975] 3 SCR 946
referred to
Para 76
(1996) 37 DRJ 352 (DB)
referred to
Para 87
[1980] 1 SCR 1081
referred to
Para 88
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
576 of 2016.
Under Article 32 of the Constitution of India.
WITH
Writ Petition (C) Nos. 24 and 119 of 2017.
Ms. Pinky Anand, ASG, Mukul Rohatgi, Jayant Bhushan, Shekhar
Naphade, Sr. Advs., Prasenjit Keswani, Satyajit Saha, Raghvendra Pratap
Singh, Srishti Kumar, Mrs. V. D. Khanna, Manoj K. Mishra, Umesh
Dubey, Jyoti Mishra, Sandeep Kumar Dwivedi, Nikhil Nayyar, Ms. Veena
Gowda, N. Sai Vinod, Dhananjay Baijal, Divyanshu Rai, Sandeep
Deshmukh, Vasim Siddiqui, Nar Hari Singh, Prateek Rusia, Abhikalp
Pratap Singh, Mrs. Deepa Kulkarni, Ms. Suvarna Ganu, Ms. Saudamini
Sharma, Nishant Ramakantrao Katneshwarkar, Ravindra Keshavrao
Adsure, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
A. K. SIKRI, J. 1. This batch of three Writ Petitions was heard
together and is being disposed of by this Common Judgment as similar
issues and prayers are raised in all these petitions.
2. The instant writ petitions have been preferred 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 (hereinafter referred to as the 'Act') and also the Rules framed
there under being the Maharashtra Prohibition of Obscene Dance in
Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women
(Working therein) Rules, 2016 (hereinafter referred to as the 'Rules')
which, as the Petitioners submit, 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.
3. The petitioner No. 1 in Writ Petition (Civil) No. 576 of 2016 is
an Association of various Hotel Owners and Bar Owners and/or
Conductors of the same, who carry on business of running Restaurants
and Bars in Mumbai and is duly registered under the Trade Unions Act.
Petitioner No. 2 is the secretary of petitioner No. 1 and is a citizen of
India, who runs a restaurant and bar.
The petitioner in Writ Petition (Civil) No. 24 of 2017, R.R. Patil
Foundation is a registered Union under the provisions of the Bombay
Public Trust Act and the President thereof has been authorised to file
the writ petition.
The petitioner in Writ Petition (Civil) No. 119 of 2017 is the Bhartiya
Bargirls Union, registered under the Trade Union Act, 1926 and
represented through its Hony. President. The petition is filed in a
representative capacity on behalf of a large number of women dancers,
singers and waitresses.
4. Respondent No.1 in all the three writ petitions is the State of
Maharashtra. The other respondents in the three petitions comprise of
various departments/authorities of the State of Maharashtra.
5. A brief historical description behind enacting this Act and the
Rules is as follows:
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Any person intending to start an Eating House and Restaurant
is required to obtain permission from the Municipal Corporation under
the Mumbai Municipal Corporation Act as also the Food and Drugs
Administration. After a Grade-I licence is granted to the establishment,
and the establishment complies with the requirements under Rules 44
and 45 of the Bombay Foreign Liquor Rules, 1953 framed under the
provisions of the Bombay Prohibition Act, 1949, the establishment is
granted an FL III licence for sale of Indian Made Foreign Liquor (IMFL)
in the Restaurant. Further, persons desiring to serve only Beer in the
Restaurant apply for a licence under the Special Permit and Licenses
Rules framed under the provisions of the Bombay Prohibition Act, 1949
and are granted licenses in Form 'E' for running a Beer Bar. The persons
having Eating Houses besides obtaining an FL III or Form 'E' licence
under the provisions of the relevant Rules framed under the Bombay
Prohibition Act, 1949, are required to have licence under the Bombay
Police Act, 1951, called the Public Entertainment Licence, from
respondent No.2, which is the Licensing Authority under the Rules framed
for Licensing and Controlling Places of Public Entertainment in Greater
Mumbai, 1953. It is stated that the requirement of having multiplicity of
licenses is being done away by respondent No.1. Further, any restaurant
owner desiring to have music and dance or either music or dance in the
restaurant is also required to obtain Premises and Performance Licence
under the Rules for Licensing and Controlling Places of Public
Amusements (other than Cinemas) and Performances for Public
Amusement, including Melas and Tamasha's Rules, 1960 (hereinafter
referred to as the 'Amusement Rules') framed by respondent No.2 under
the powers vested in him under Section 33 of the Maharashtra Police
Act, 1951. According to the provisions of Section 33 of the Maharashtra
Police Act, 1951, respondent No.2 i.e. the Commissioner of Police has
been conferred with the power to frame Rules. The Commissioner of
Police can frame Rules for not only licensing and controlling places of
public amusement and entertainment but also for taking necessary steps
to prevent inconvenience etc. to residents or passers-by or for maintaining
public safety and for taking necessary steps in the interests of public
order, decency and morality. The Commissioner of Police has accordingly
framed Rules for Licensing and Controlling Places of Public
Entertainment, 1953 and the Amusement Rules. According to the
provisions of Chapter 8 of the said Amusement Rules, a Premises Licence
is granted after all the requirements prescribed under Rules 108 and
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108(A) are complied with. Chapter 9 of the said Amusement Rules
prescribes all the conditions for grant of a Performance Licence. As
per the petitioners, their members have been granted valid licences under
the provisions of the said Entertainment Rules and Amusement Rules
and have been carrying on business since the past several years and
their licences have been renewed from time to time.
6. 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. 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, 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.
Section 33B provided an exception to Section 33A, in cases where the
dance performance was held in a theatre, or a club where entry was
restricted to members only. The said amendment was struck down as
unconstitutional by High Court of Bombay and that judgment of the
High Court was upheld by this Court in the matter of State of
Maharashtra & Anr. v. Indian Hotel and Restaurants Association
& Ors.1 {hereinafter referred to as the 'Indian Hotel and Restaurants
Association (1)'}
7. 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. A
petition bearing Writ Petition (Civil) No.793 of 2014 came to be filed in
this Court, on behalf of Indian Hotel and Restaurants Association under
Article 32 of the Constitution of India, whereby the Maharashtra Police
(Second Amendment) Act, 2014 vide which vires of Section 33A, came
to be challenged on the ground of the same being violative of Article 14,
19 (1)(a), 19 (1)(g) and 21 of the Constitution of India. This Court
issued notice in the above writ petition and respondent State of
Maharashtra filed a counter affidavit, thereby opposing the writ petition.
This Court, vide order dated October 15, 2015, stayed the operation of
 1 (2013) 8 SCC 519
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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 respondent No. 1 enacted the impugned
Act and the Rules, certain provisions whereof have been challenged in
these petitions. In view of the developments, Writ Petition (Civil) No.
793 of 2014 was disposed of as infructuous.
The impugned Act and the Rules:
8. The Preamble to the Act mentions that it is an Act to provide
for prohibition of obscene dance in hotels, restaurants, bar rooms and
other establishments and to improve the conditions of work, protect the
dignity and safety of women in such places with a view to prevent their
exploitation.