Note on the recent judgement lifting the ban on dance bars.

[Guest guest]

Dear Friends,

This is to give you some information in brief on the recent judgement passed by

the Hon'ble High Court of Bombay in relation to the ban on dance bars.

On 12 April 2006 the Bombay High Court passed its verdict on the public interest

litigation filed by Sanmitra Trust & Ekta Self Help Group through the Lawyers

Collective HIV/AIDS Unit in the Bombay High Court, challenging the

constitutional vires of sections 33A and 33B of the Bombay Police Act, 1951

(which inter alia prohibited performance of dance of any type in eating houses,

permit rooms or beer bars and exempted three starred and above hotels, cinema

theatres, auditoriums etc. from such prohibition).

The Petitioner, Sanmitra Trust, are involved in providing HIV and STI related

services to bar dancers in the Malvani area of Mumbai which houses about 6000

women working as bar dancers in different bars in Mumbai, and Ekta Self Help

Group, is a group formed by bar dancers. The petition was clubbed with other

petitions filed by the Bar Owners, Bar Girls Association and other NGOs and

arguments were heard for over a month before the Division Bench comprising of

Justice F. I. Rebello and Justice R. Dalvi.

Following are the grounds on which the said prohibition was challenged by the

Petitioners:-

Right to Equality

The Petitioners argued that the prohibition on dance bars was violative of right

to equality (Article 14 of the Constitution of India) since it clubbed all

disparate forms of dance, decent and indecent in one class. Similarly, all dance

bars, those allegedly holding indecent and obscene dances and those others that

do not were painted with the same brush. Apart from that, the exemption to

certain establishments, viz three star and above hotels was also violative of

Article 14. It was argued that such classification had no nexus to the object of

curtailing indecent or obscene dance, allegedly sought to be achieved by the

State since it assumed that there was no obscene or indecent dance in such

exempted establishments.

Right to life

The prohibition was also challenged on the grounds that it was violation of the

bar dancers' right to earn their livelihood and therefore their right to life

under Article 21 of the Constitution of India.

Right to life also covers the right to health which was also jeopardized due to

the ban. The few bar dancers who involved in sex work were able to negotiate

condom use prior to the ban since their primary source of income was through

dancing, had lesser or no condom negotiation power due to the economic

constraints after the ban. The bar dancers who were not engaging in sex work

prior to the ban were now forced to engage in sex work as the only means of

survival. This made them more vulnerable to HIV/AIDS and other STIs.

The Petitioners were able to produce before the court the data from their

HIV/STI clinic in Malvani showing a rising number of bar dancers coming to their

clinic for HIV and STI related treatment and diagnosis for the first time, after

the imposition of the ban.

Further, most of the bar dancers came from extremely poor backgrounds, with

families to support from their earnings. Most of them were not educated or did

not have any other skills to be able to earn a living to support themselves and

their families. Dancing is a legitimate source of livelihood and until the

impugned legislation came into force, it was a legitimate source of livelihood

for the bar dancers. The bar dancers were earning from the same.

Undoubtedly, the impugned amendment deprives the bar dancers of their right to

carry on a profession of their choice and deprives them of their legitimate

source of livelihood.

Right to practice any profession, occupation, trade or business

The Petitioners contended that the ban was violative of the right to practice of

profession of the bar dancers. The establishments exempted from the ban would

not offer jobs to the bar dancers who are from economicaly and socially weaker

sections of the society.

The prohibition dancing in bars was not a reasonable restriction as envisaged

under Article 19(6) 'in the interest of the public' and was therefore violative

of Article 19(1)(g) of the Constitution of India, particularly since there are

provisions for punishment and cancellation of licenses of bars that permit

indecent or obscene dances or any other criminal activity in their premises. It

was argued that dancing was not an inherently pernicious, immoral, illegal

activity or unsafe for the general public that could be totally banned by the

State.

All dance bars are not pick up joints and does not amount to exploitation of the

bar dancers

One of the reasons given for the ban by the State in the Statement of Objects

and reasons for the amendments as well as their Affidavit in reply to one of the

petitions opposing the ban was that the dance bars were functioning as 'pick up

joints of girls for immoral activities.' While denying that all bar dancers

engage in prostitution or all dance bars function as pick up joints, the

Petitioners pointed out that there are other laws in place to curb any 'immoral

activities' that may be carried out in any bars or other place.

Freedom of speech and expression

The Petitioner argued that singing and dancing are an important medium of

expression and is an integral part of the freedom of speech and expression

guaranteed under Article 19(1)(a). The dances were not indecent and the ban

could not be justified under Article 19(2) of the Constitution under the grounds

of decency, morality or public order.

Discriminatory against women

The petitioners also contended that since women constitute and overwhelming

majority of bar dancers the prohibition disproportionately impacted women and

was discriminatory on the basis of their sex and therefore violative of Article

15 of the Constitution which prohibits discrimination on the basis of sex, race,

caste etc.

The State justified the ban by producing some FIRs lodged under section 294 of

the IPC against obscene dancing, and FIRs of people fighting with each other

over loans taken at the bar and other documents of letters/complaints made by

some women against their husbands for visiting dance bars. The State alleged

that Section 294 of the IPC was not enough to curb and obscene and vulgar dances

and therefore the ban was required. The State also argued that women were being

exploited in the dance bars.

The Judgement

The Hon'ble Court delivered the judgement on 12.4.2006. Following are some

observations made in the judgement:

Justice Rebello who passed the Judgement ruled that Sections 33A and 33B of the

BPA are void as they impose an unreasonable restriction on the bar dancers'

right to practise their profession under Article 19(1)(g). The women earning

their livelihood by dancing in bars does not necessarily mean that they are

being exploited. In fact the court held that women were still being employed,

either as waitresses or other allied jobs in the prohibited establishments or

could still dance in the exempted establishments, owners were not prevented from

employing women, there by the object of the restriction to prevent exploitation

had no nexus with the ban imposed on dancing in the prohibited establishments,

and was therefore violative of Article 19(1)(g) and was unreasonable and not in

public interest and consequently void.

Since the prohibition was on all dance performances, males or females performing

it, it was held that the same is not discriminatory on the grounds of sex

therefore not violative of Article 15.

It was observed that the ban does not violate the bar dancer's or bar owner's

right to life or Article 21 freedom of speech or expression under Article

19(1)(a). The Court held that the predominant activity carried out in the place

of public entertainment, is of carrying on trade or business, occupation or

profession.

Applying the doctrine of pith and substance and on the facts of the case, the

court held that there was no violation of the freedom of speech and expression.

However, banning of dance performances only in eating houses, permit rooms and

beer bars and excluding three star and above hotels and clubs etc. is

discriminatory and violative of Article 14 of the Constitution of India.

A blanket ban on all types of dances in the prohibited establishments of dance

bars did not have any rational nexus with the object the ban sought to achieve,

i.e. inter alia to prevent obscene, vulgar or indecent dance performances, as

the dances included those dances permitted in the exempted establishments which

were governed by the same rules and conditions of license. The court therefore

held Section 33A and consequently Section 33B as void

Justice R. Dalvi concurred with the judgement and also added that the NGOs

Prayas and SNDT were directed to conduct studies to monitor/check if women were

being forced into the profession against their will and whether minors are

entering the profession if upon request by the State or any party or of their

own motion.

If their inquiry shows illegal employment of a minor the same would have to be

reported to the relevant police station for action against the bar owner and

take necessary steps for rehabilitation and repatriation of such minors.

The state is likely to file an appeal in the Supreme Court. We will keep update

you all over email of the future developments in the matter.

In solidarity,

Lawyers Collective HIV/AIDS Unit

Bombay

e-MAIL: <aidslaw2@...>