Supreme Court allows 3 dance bars to resume operations under old rules

New Delhi: In an interim relief to Maharashtra, Supreme Court on Wednesday refused to stay the operation of a new law meant to regulate the licensing and functioning of dance bars across the state, though it questioned some of its provisions.

The apex court, however, allowed three dance bars which were granted licences by the state administration to continue to function under the old rules and directions issued by it from time to time.

A bench of Justices Dipak Misra and C Nagappan, during the brief hearing, questioned certain new provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016.

"How can there be CCTV cameras in the performance areas ‘is it not the infringment of right to privacy’. We have no objection to installation of CCTV cameras at the entrance of dance bars," the bench said.

Senior advocate Shekhar Naphade, appearing for Maharashtra, said the police cannot be stripped of its investigating right by not allowing CCTVs in the performance areas of dance bars.

"These are security arrangements and CCTV footage is a crucial evidence. Tomorrow, if anything happens in the dance bars, this CCTV footage will help in investigation. To ensure that regulations are complied with by the dance bars, we need the CCTVs in performance areas," Naphade said.

Senior advocate Jayant Bhushan appearing for Indian Hotel and Restaurant Association (IHRA) said the installation of CCTV in performance areas would have a "chilling effect" and breach the right to privacy as people would refrain from coming to the dance bars.

The bench also prima facie agreed to the contention of Bhushan that the regulation that no liquor can be served in the bar where dance is permitted was absurd and irrational. "This will be a situation like juice bars. They want no alcohol beverages to be served in a bar. What sort of dance bar it will be where no liquor is served? It will be like juice bars where dance is separated from the bar," Bhushan contended.

One of the other regulation which was strongly contested by IHRA pertained to the mandatory condition that dancers are to be employed by the bar owners.

"How can you (state government) force a woman to get employed? It is her choice whether to get employed or not. The condition can't be forced upon her," Bhushan said.

Maharashtra strongly opposed the contention of dance bar owners on various clauses in the new law and even questioned locus of petitioners, saying they were before the court as companies and not as aggrieved citizens. The bench, however, said it would look into the objection at a later stage.

Naphade defended the rule of no liquor being served in the performance area, saying as a state, it has the absolute right to say that no liquor should be served and it can even put conditions to regulate alcohol. "We have every power to see how alcohol is being served and the state can frame rules to regulate it," he said.

To this, the bench said "it is a paradoxical situation that there is a bar but no liquor is served. Why don't you bring law to prohibit liquor in the state? By putting conditions, you have taken out the effect of the judgement, which is violative of Article 19(1)(G)."

The senior advocate said there were several judgements in which it has been said that the state has absolute right to say when, where and how liquor should be served.

Regarding CCTV cameras, Naphade defended the condition in the new rule and said there were public places and the state has inherited police power to see that its regulations are complied with. "Tomorrow, if anything happens, they (dance bars) cannot say that they do not want a policeman to enter the dance bars. It is the prerogative of the state to ask that the CCTV should be installed. We have said in the rule that they will preserve the video footage for 30 days and if anything goes wrong, then police can requisition the footage," Naphade said.

To this, the bench asked the counsel for IHRA to see whether any arrangement could be made that CCTV footage is stored for 30 days "without showing the visuals to anyone".

However, later the bench said it would look into the issue during the course of hearing and posted the matter for November 23.

The bar owners also objected to several other conditions of the new law alleging that "back-door efforts" were being made to make them unable to function.

Bhushan pointed to the timing restriction till 11.30 pm and said if orchestras can play till 1.30 am and discotheques can remain open till 3 am, why can't the dance bars.

He also objected to the condition that dance bars cannot operate within one kilometre of education institutions, saying in Mumbai it is very difficult find such a place.

On August 30, a provision of a new law to regulate obscene dance performances and prohibiting showering of money at dancers had found favour with the apex court which had said the law respected "the dignity of woman and dignify decency and culture".

It had sought response from the Maharashtra government on a batch of petitions, including one filed by IHRA challenging the constitutional validity of certain provisions of the new Act enacted in 2016.

The petitioners claimed that the Maharashtra Act violated the fundamental rights of hotel and bar owners and sought the court's direction to declare it unconstitutional, invalid, void and unenforceable.

"The result of the impugned Act and Rules made thereunder is that under the garb of regulation, it literally results in banning of performance of dance of any kind or type in an eating house, permit room or beer bar. The ban has been held to be unconstitutional by both the high court and this court vide its judgment...," said the plea filed by IHAR.

It also said members of the IHAR have all the requisite permissions and licences for running bars and restaurants and comply with the conditions for running such establishments including conditions for serving alcohol.

The plea said the artistes performing in places of public entertainment were qualified and talented and entitled to practice their profession which is their fundamental right.

The apex court had earlier rapped the Maharashtra government for not granting licences to dance bars on account of non-compliance of some conditions and said it was better for women to perform than begging on streets or doing something "unacceptable" to earn a livelihood.