In the name of obscenity

Even before the celebrations commenced in the hotel rooms of the members of associations representing Mumbai bar owners after the Supreme Court struck down the ban on dancing in bars, imposed by the Maharashtra government in 2014, came the statement from chief minister Devendra Fadnavis that his government will appeal against this ruling. It was a matter of ego for him because he could not be seen by the Maharashtrian middle class — his vote bank — as someone responsible for undoing the efforts of the previous Nationalist Congress Party-Congress alliance to cleanse the city of vice and sleaze by introducing the ban a decade ago.

The Supreme Court’s ire was apparent in the manner in which the government had flouted its previous judgment delivered in 2013, which granted interim relief to the bar owners. To circumvent the ruling, in 2014, the state Cabinet decided to extend the ban to high-end hotels and private clubs too, which were exempted from the ban in the earlier amendment.

The concern for the courts, apart from the right of the bar owners to practice a trade, has been the rights of the dancers to earn a livelihood. The ban had thrown around 75,000 illiterate, vulnerable girls — many being migrants and sole bread earner of the family — to the wolves without an iota of concern for their safety and protection. This was done on a hypocritical premise that dancing in bars leads to prostitution and boosts trafficking of girls.

In 2013, while upholding the judgment of the Bombay high court which had struck down the ban imposed in 2005, the bench headed by Chief Justice of India Altamas Kabir and Justice Nijjar had commented sympathetically on the plight of the dancers: “Depriving a person of their right to dance and earn a livelihood violated the fundamental right to freedom of speech and expression and most importantly, violated Article 21, the right to life which included the right to livelihood. The courts could not endorse such blatant injustice towards women who were at the lowest rung of the dance bar industry… Even a bar dancer has to satisfy her hunger, provide for her family and meet her day to day expenses.”

The Maharashtra legislature, united across party lines, supported the ban. Thus it does not really matter as to which party is in power today. The women’s groups remain divided on this issue with both sides staking their claims to speak on behalf of the dancers using the language of rights, freedom, protection and safety. It is ironic that the “conservative” courts have been their only saviours as they understood the plight of the dancers and tried to bring solace unlike the ordinary people who took great pleasure in visiting the bars and revelling in their dancing. One would have imagined that the public at large would be more progressive and more compassionate. But that was not to be. Suddenly the very people, who were entertained by the dancers for over three decades, were baying for their blood by brandishing the wand of morality.

Even now, despite the positive rulings of the apex court, it is doubtful that the state legislature, which had voted unanimously to bring about a ban across the political divide, will allow the bars to reopen and the girls to dance and earn a living with dignity and protection. Scoring political brownie points seems to be more important for every political party than the right of the dancers to earn a living. The rider provided by the Supreme Court will be used as a handle to constantly harass them using the stick of “obscenity” since the Supreme Court has provided a wide scope by using the phrase, “no performance of dance will be remotely expressive of any kind of obscenity” without defining the phrase. And this is being done so that the “individual dignity of the woman performer is not harmed”.

An important point being missed here is that who will ensure that the dignity of the dancer is not harmed within the bars? According to the government, the only way is by not granting the required licences and closing down the bars, which is like serving a body blow to the performer whose survival depends upon her dancing. While the business demands of the owners lies in getting young girls oozing out sexuality to entice the male patrons with erotic performances, the government’s response has been the constant raids and surveillance, arrests and humiliation at the hands of the police. This is being done at the cost of violating the dignity of the dancers.

The girls have no one to speak for them and to ensure that their rights are not violated. The earlier efforts at unionising the performers who were a floating population and negotiated with the bar owners individually were at a nascent stage when the ban came into effect. As a result most performers had to bow out of the city of glamour and fade into oblivion.

Even at that time these efforts were carried out with the benevolence of the bar owners who were pushed to the corner in the years preceding the ban in the post-2000 decade. Left to themselves, today the bar owners will not permit any “outsiders” to enter the bars and mobilise the dancers to protect their rights against the bar owners unless there are clear directions from the Supreme Court to this effect. Today, those who enter now will be young, raw and pliant in the hands of the bar owners for their sheer economic survival.

It will be years before they learn the trade, gain confidence and reach a position to negotiate for their rights with the bar owners and deal effectively with the constant threat of police harassment. This task is now left at the doorstep of our courts and the judges. They would have to meet this challenge and clearly spell out the measures that will ensure the safety of the girls. Guidelines would have to be framed for their protection and safety with clearly spelt out measures of enforceability, not by invoking the lens of obscenity and morality, but framing them squarely within the Constitutional touchstone of rights and freedoms.  

The writer is a women’s rights lawyer and had represented the bar dancers before the Bombay high court in 2006