Though the Supreme Court stayed the ban on dance bars, it is a moot question whether the Maharashtra government will accept the verdict. It hasn’t budged in the past
By Meena Menon
It is not for the first time that the courts have come to the rescue of bar dancers. But the Supreme Court order on October 15 to stay a provision in the Maharashtra Police Act prohibiting the functioning of dance bars may be too little, too late.
Remember, in 2013 too, the Maharashtra government didn’t budge an inch after an apex court order lifted the ban on dance bars. In 2014, it defiantly amended the Bombay Police Act to ban dancing again, including in high-end hotels and private clubs where it was exempted earlier.
The Indian Hotel and Restaurant Association and others approached the Supreme Court to stay this change in Section 33A of the Bombay Police act by way of an amendment by the Maharashtra Police (Second Amendment) Act, 2014, and declare it unconstitutional. While bar owners may rejoice at the latest order, they will once again be subject to a strict licensing system. There are other issues too and as lawyer and activist Flavia Agnes said, the obscenity rider in the order will become a weapon in the hands of the police to harass the girls.
The man who introduced the ban on dance bars in 2005, former Maharashtra home minister RR Patil of the Nationalist Congress Party (NCP), passed away due to cancer in February. He took the high moral ground while closing them down and faced much criticism for not lifting a finger to do anything about the thriving prostitution and trafficking racket in Mumbai. Bar dancers, then, became a soft target for Patil’s misplaced moralism which received unanimous approval across political parties.
In 2006, it was first the Bombay High Court which came to the rescue of the bar dancers and later, in 2013, the Supreme Court. There was much lamentation that banning dance bars was a blot on Mumbai’s famed nightlife, though they were many who supported it. The women, meanwhile, were suddenly left with little options other than a life of drudgery or prostitution.
Maharashtra chief minister Devendra Fadnavis has said he will appeal against the order and make a proper representation in the Supreme Court before the final hearing on November 5. Political parties, specially the NCP which propelled the ban, feel that the state did not make a good case in the Supreme Court. Nawab Malik, NCP spokesperson says: “The state government seems to have struck a deal with the bar owners and this will become clear if the final order goes against the government. We will wait to see what the order is and then decide.”
Leader of opposition in the Maharashtra assembly Radhakrishna Vikhe-Patil from the Congress said in a statement that the government should bring an ordinance and ban dance bars. For once, the Congress seems to back the NCP. When Patil had banned dance bars in 2005, Vikhe-Patil had said it was a step in the right direction. He had said that it was not a question of depriving women of their livelihood alone but it had a negative impact on society. The state must take steps to ensure the ban stays in effect, he added.
When it banned dancing in eating houses, permit rooms and beer bars in 2005, the Maharashtra government took the excuse that it had received complaints about these performances. The amendment to the Bombay Police Act 1951 said the government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of women and are likely to deprave, corrupt or injure public morality or morals. It exempted theatres and auditoriums/sports clubs/ gymkhanas, where entry is restricted to its members only, three-starred and above hotels and cultural and tourism activities.
The ban was challenged by bar owners and dancers, among others, and the Bombay High Court in its order of April 2006, declared the provisions of Sections 33A and 33B of the Bombay Police Act as unconstitutional being ultra vires the Articles 14 and 19(1)(g) of the constitution. The state government appealed against this but the apex court upheld the ban in 2013. Not to be cowed down, the Maharashtra government amended the Bombay Police Act quickly once again in 2014, banning dance bars in all other places also, leaving the women high and dry.
While staying the ban, the latest Supreme Court order says: “…we add a rider that no performance of dance shall remotely be expressive of any kind of obscenity in any manner. We may hasten to clarify that in the earlier judgment, it has been clearly stated that sufficient power is vested with the Licensing Authority to safeguard any violation of the dignity of women through obscene dances. Regard being had to the same, 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.”
Flavia Agnes, who has represented the bar dancers in the Bombay High Court, said that the court has raised the issue of obscenity but no one is talking of the girls and their rights. “What about the dancers? Who will protect them and make sure they get their rights as workers?” she asks. She is among those who have constantly raised the issue of the livelihood of women over the morality question.
The 2013 Supreme Court order upheld the High Court stay on the basis that dancing was a fundamental right. The current order upheld and quoted what the Bombay High Court said: “The state has failed to establish that the restriction is reasonable or that it is in the interest of general public. The High Court rightly scrutinized the impugned legislation in the light of observations of this Court… wherein it was held that greater the restriction, the more the need for scrutiny. The High Court noticed that in the guise of regulation, the legislation has imposed a total ban on dancing in the establishments covered under Section 33A.”
The High Court in its order staying the ban had said: “In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls.” It said that “the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women.”
About 75,000 bar girls were rendered jobless on August 15, 2005. The plight of the women seems to hardly affect the state government. On three occasions, the courts have come to the aid of the bar dancers but it remains to be seen how the order will be implemented and whether questions of fundamental rights and livelihood prevail over moral outrage and dubious notions of obscenity.