Acknowledging
the right of women bar dancers to follow their profession, the Supreme Court
suspended Thursday a legal provision banning dance performances in Maharashtra
and directed the state government to grant licences to the bar owners without
insisting on the prohibitory legislation. Critical of the 2014 amendment in the
Maharashtra Police Act that had imposed a total ban on dance bars and dance
performances, a bench of Justices Dipak Misra and P C Pant noted that the state
government re-enacted a similar piece of legislation after the top court struck
down a prohibitory provision in 2013.
The bench
rejected Maharashtra government’s argument that the two provisions were
different and the 2014 amendment was perfectly valid. “The difference that is
perceptible from the provisions which have been reproduced above are really
immaterial,” it said. The bench went on to note that there are situations when
the “legislature steps in to remove the base” of a judgment and to validate a
provision after the court has declared the provision as unconstitutional. In
some other cases, the legislature brings an amendment whereby the defects
pointed out by the court are removed, said the court, adding: “Significantly,
in the present case, similar provision has been introduced by enhancing the
sentence of fine.”
Underlining the
necessity of issuing the interim order after it was told that the dance bars
have been closed in the state since 2005 and nothing changed even after the
apex court’s 2013 judgment, the bench said: “We think it appropriate to stay
the operation of the provisions enshrined under Section 33A(1) of the Act.”
However, it
added a caveat that “no performance of dance shall remotely be expressive of
any kind of obscenity in any manner” and that “the licensing authority can take
steps so that the individual dignity of a woman is not affected and there
remains no room for any kind of obscenity.”
The bench said
police and other government bodies have sufficient power to “safeguard any
violation of the dignity of women through obscene dances” and they will make
sure such performances do not adversely affect public order.
“As we are
staying the provision, if the members of the petitioner apply for licence, the
same shall be considered in accordance with law without taking note of the
restriction as Section 33A has been stayed by us,” held the bench.
It asked state
government to file its affidavit in response to a petition filed by the Indian
Hotel and Restaurants Association and others, which have pleaded the court to
declare as unconstitutional amended Section 33A. Before the amendment in 2014,
Section 33A allowed dance performances in “exempted” establishments like
three-star and five-star hotels but banned it elsewhere on an argument that the
dance bars were obscene and acted as pick-up points for vulnerable girls. Such
a classification between three-star and above hotels and other dance bars was
held to be bad in law and the top court quashed the enabling provisions,
slamming the “elitist” attitude of the state government.
The then
Congress-led Maharashtra government moved to plug this legal loophole instead
of accepting the court’s order to think of “imaginative alternative steps” so
as “to bring about measures which should ensure the safety and improve the
working conditions of the persons working as bar girls.”
The state
cabinet decided to extend the ban to high-end hotels and private clubs too and
amended Section 33A, thereby affecting a total ban on dance bars and dance
performances.
http://indianexpress.com/article/india/india-news-india/dance-bars-to-reopen-in-maharashtra-as-supreme-court-puts-ban-on-hold/
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