The Maharashtra government's unending zeal to ban dance bars in Mumbai and other parts of the state is hardly dampened by an unfavourable Supreme Court ruling that came Thursday. If reports are to be believed, the Devendra Fadnavis-led government is already mulling to invoke existing laws and bring in an ordinance to stop the business from resuming full throttle.
This comes, despite, Supreme Court lifting most of the restrictions placed by the government on dance bars in the state by setting aside some provisions of a 2016 law imposing restrictions on their licensing and functioning.
However, the government's resolve to modify the effects of the Supreme Court order hardly comes as a surprise. Between the subsequent state governments and the judiciary, the law has taken one step forth and two steps back over the past 14 years.
Timeline of dance bar regulations in Maharashtra
The idea of imposing restrictions on the vast and flourishing dance bar business in Maharashtra, primarily in Mumbai, was a brainchild of NCP leader RR Patil back in 2005. Patil, then the home minister in the Congress NCP-led government, imposed a blanket ban on operation of dance bars. However, who excluded the dance performers in three star-plus hotels and clubs. The prohibitory order was challenged in the Bombay High Court the same year, which the court revoked in 2006, stating that it was discriminatory and in violation of law.
The Maharashtra government, convinced that these bars harbour anti-social elements and vitiate the moral fabric of the society, challenged the order in the Supreme Court in 2006. The apex court's order finally came out in 2013, and it upheld the Bombay High Court order. In 2014, the Maharashtra government, instead of implementing the Supreme Court orders, amended the section 33 (A) of the Maharashtra Police Act by which it prohibited dancing of any type in all bars, hotels and restaurants across the hospitality industry.
The blanket ban was naturally once again challenged by the Indian Hotels and Restaurants Owners Association the same year. The group approached the apex court challenging the amendments carried out in October 2015 and March 2016; the Supreme Court once again struck down the law.
Undettered, the Maharashtra government once again enacted a new law, the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, whichthat made it virtually impossible to get licences for these entertainment establishments. The new law was once again challenged in the Supreme Court by several associations, and the court finally ruled that there can be reasonable restrictions but not a blanket ban on the dance bars.
What did the Supreme Court say?
In a relief to dance bar owners and employees, the apex court held there can be "regulations" but not "total prohibition" and also overturned the rule that prohibited serving alcohol in the bars. The bench, however, upheld the provision restricting the timing of operation of dance bars from 6 pm to 11.30 pm and allowed tips to be directly given to the performers but disallowed showering of currency on them.
Setting aside some provisions of the 2016 act, a bench headed by Justice AK Sikri said though the Act "appears to be regulatory in nature, the real consequences and effect is to prohibit such dance bars."
"From 2005 till date, not a single person has been given licence (for dance bars). It cannot be done. There can be regulations but it cannot amount to total prohibition," said the two-judge bench that also included Justice Ashok Bhushan while pronouncing the judgement.
Holding that the state government cannot exercise "social control" with its own "notion of morality", the court hoped it would now consider applications for grant of licences "with open mind" so that there is no complete ban on staging dance performances at designated places.
The court also quashed the provisions of the act like the mandatory installations of CCTV cameras in the dance bars saying they violated privacy. It set aside the provision which mandated there must be a partition between bar rooms and the dance floor.
The 100-page verdict was pronounced on the pleas of association of various hotel owners and bar owners, RR Patil Foundation and Bhartiya Bargirls Union challenging certain provisions of the 2016 law.
Dealing with a condition of the Act which stipulated that dance bars should be located at least one kilometre away from educational and religious institutions, the court said it amounted to "fulfilling an impossible condition" as it is difficult to find any place in Mumbai which is one kilometre away from such institutions.
Regarding a rule under the Act which stipulated that only those persons, who possesses a 'good character' and have no criminal record for last 10 years, were entitled to hold licence for dance bars, the bench said these terms were "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," it said.
What lies ahead?
The Supreme Court order was clearly no deterrent for the government which has set its heart on imposing a blanket on these establishments.
Even the various associations who have been fighting the subsequent litigation over the past argued in court that the government seems to be acting from the intent of circumventing successive court orders. Hotel and restaurant owners argued that the state government adopted an attitude that it will not permit operations of dance bars irrespective of the orders passed by the apex court.
On Friday, PTI reported that the Maharashta government is considering bringing an ordinance to stop their operations. "In the interest of people and for saving the cultural fabric of the state, we will not hesitate in bringing an ordinance to stop dance bars from operating. Once we receive the written orders of the court, our lawyers will study it and based on their recommendations, we will bring an ordinance in the next two weeks, making changes and strengthening the existing law," Minister for Finance and Planning Sudhir Mungantiwar said.
Various media reports also stated that the government was reviewing dead provisions within existing laws to heavily restrict the operations of these establishments. A report in DNA quoted an unnamed source in the home ministry as stating that the nitty-gritty of the law will be used to the hilt. He said that an old provision of a mandatory liquor permit " a colonial era provision which has abysmally low rate of implementation " for consuming alcohol will be implemented to discourage people from visiting these places. He further said that if there were over 10 people working in a dance bar including waiters and bar girls, then the owner would be bound by labour laws and the Shops and Establishment Act, meaning they can't hire or fire dancers at will and they must maintain work contract, provident fund and gratuity for their employees.
Since most performers prefer pseudonyms and like to maintain their anonymity, if the aforementioned laws are indeed enforced, it will make it excruciatingly difficult for these establishments to oblige to these laws.
However, the DNA report also quoted a lawyer who opined that such lofty expectations about implementing dead law are unlikely to thwart reopening of these institutions. "The local police are corrupt and hand-in-glove with dance bars owners. They will help bars run despite the government's intentions," Jitendra Patil, a Bombay High Court lawyer told the newspaper.
Zee News also quoted government sources to report that the state administration is planning to come up with a new rule under which the customers will have to reveal their identity to the local police for entering these establishment. However, whether or not this move stands legal scrutiny, if challenged, is quote another matter. The Supreme Court has struck down government's proposition to mandatory installation of CCTVs within these bars, stating that violated citizens' privacy.
Earlier, the government had claimed that dance bars are breeding grounds for anti-social elements in the state. Going by the government's argument, over 700 dance bars were operating in Mumbai and adjoining areas before the prohibition imposed by the government. It was also claimed by the government that only 307 bars were operating with legal permit and rest were nothing but a threat to society.
The bar owners oppose this stand of the government, stating it violates their right to earn livelihood. " Activist Varsha Kale said over 75,000 women were employed in dance bars when the state government decided to shut them down in 2005 for allegedly promoting obscenity. While over 40,000 women left the profession and took up other jobs for livelihood, around 35,000 were still working as waiters and singers in various hotels, she claimed.
With inputs from PTI