Indian Hotel and Restaurant Association v. State of Maharashtra

Indian Hotel and Restaurant Association v. State of Maharashtra

  2019 SCC OnLine SC 41

WRIT PETITION (CIVIL) NO. 576 OF 2016 decided on 17.01.2019

Bench

Dr. AK Sikri and Ashok Bhushan

Issue

Constitutional validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and the Rules made thereunder?

Argument Advance

Petitioner

Respondent

The argument of the Petitioner is that some of the provision of the Act and the Rules are vague and creates a chilling effect, no rational behind intelligible differentia. Apart from this, there is conflict between the central law (i.e. the IPC) and the State Act (the impugned Act). It was  further argued that the Act is violative of Art 14 and 19(1)(g).

The Respondent argued that the provision of the Act and Rules are not vague if one takes into the account the mischief which the Act wants to crub. He further argued that Act is not violative of Art 14 and 19(1)(g).

Held

Partially upholded the validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and the Rules made thereunder.

Summary

Question of law

Whether Section 2(8)(i) of the Act is vague and hence unconstitutional?

[Section 2(8) defines obscene dance. In the said section, expression ‘arouse the prurient interest of the audience’ is bone of contention?]

Argument Advance

Petitioner

Respondent

The argument of the Petitioner is that the definition of ‘obscene dance’ includes ‘a dance which is designed only to arouse the prurient interest of the audience’, which was totally loose expression incapable of any precise meaning.

The provision is utterly vague and creates a chilling effect; puts restrictions on dance which are excessive and disproportionate; and suffers from rigidity, overbreadth and manifest arbitrariness.

Section 2(8) of the Act which defines ‘obscene dance’ was defended by arguing that it is not vague or contains imprecise definition as it includes a dance which is aimed at arousing the ‘prurient interest’ of the audience and where that is the only purpose behind a dance. He argued that the expression ‘prurient interest’ has a definite connotation in dictionary and this expression finds presence in Section 292 of the IPC as well which makes obscenity as an offence.

It was also argued that the very test of “reasonableness” is fluid and, therefore, it is situation centric. Since, the Act aims at prohibiting obscene dance.

Judgment

It cannot be said that a dance which is aimed at arousing the prurient interest of the audience is vague term, incapable of definite connotation. The expression ‘prurient interest’ has come up for judicial determination in  U.S. Supreme Court in Brockett v. Spokane Arcades Inc which has been upheld by this Court in Raj Kapoor & Ors. v. State & Ors

Question of law

Whether Section 6(4) of the Act is violative of equality clause enshrined in Article 14 and 19(1) of the Constitution?

[Section 6(4) bars the grant of licence under the Act in respect of a place where licence for discotheque or orchestra is granted.]

Argument Advance

Petitioner

Respondent

It was submitted that there was no rational behind such a provision based on intelligible differentia as it prohibits grant of licence for discotheque or orchestra where licence under this Act is granted. Simply put, the purport behind this provision is to see that in respect of a particular place either licence is granted for dance bars or for discotheque and orchestra and there would not be a licence for a place, both for dance bars and discotheque or orchestra, at the same time.

It was submitted that that idea behind such differentiation was to impose stringent licence conditions for dance bars in order to avoid any possibility of obscene dance and that was a rationale for keeping place of dance away from the place where there is a discotheque or orchestra.

Judgment

Section 6(4) of the Act as unconstitutional because the impugned provision is totally arbitrary and irrational and has no nexus with the so-called purpose sought to be achieved. The condition that the license would be granted either for dance bar or discotheque does not satisfy the  test of intelligible differentia.

Question of law

Whether punishment provided under Section 8(2) of the Act is discriminatory and offends Article 14 of the Constitution?

[For contravening the provisions of Section 6(4), the punishment provided under Section 8(2) of the Act was imprisonment for a term which may extend to three years or fine which may extend to Rs.10 lakhs or both.]

Argument Advance

Petitioner

Respondent

The submission of the petitioners in this behalf is that this punishment is for those who allow obscene dance etc. Obscenity is also an offence under Section 294 IPC which is punishable with imprisonment that may extend to three months. In contrast, as per the impugned provision, the imprisonment may extend to three years. It is, thus, argued that for the same offence, whereas the Central Act prescribes imprisonment upto three months, the prescription of imprisonment upto three years in Section 8(2) of the Act is violative of Article 14 and is in conflict with the IPC i.e. the central law.

It was further argued that Section 8(2) is a separate offence prescribed in a separate law that is under the Maharashtra Act which is distinct from Section 292 IPC.

Judgement

Section 8(2) of the Act is constitutional valid.

Question of law

Whether Section 8(4) of the Act is arbitrary and violative of Article 14?

[Section 8(4) of the Act makes throwing or showering coins, currency notes or any article or any thing which can be monetised on the stage or handing over personally such things, etc. to a dancer a punishable offence. Further stipulation in these provisions is that any tip to be given should be added in the bill only and is not to be given to the performers etc.]

Argument Advance

Petitioner

Respondent

It was submitted by the Petitioner that such a prohibition is only qua the dancers and not singers or waitresses. Contention was that giving such things to a dancer only amounts to tipping her on appreciation of her performance which was the same thing as appreciating a singer for her performance or a waitress for her service and there was absolutely nothing wrong about it and such an act cannot be made an offence. It is manifestly arbitrary and violative of Article 14.

It is further submitted relating to this provision that it was even violative of Article 19(1)(g) of the Constitution inasmuch as for dancers, singers, waitresses, etc., tips are the major part of their earnings which was sought to be taken away by this provision.

The Respondent submitted that it is a matter of cultural ethos of the society. Herein, when the purpose is to protect the dignity of women, such a prohibition would be justified. In this vein, further argument in support of such a provision was that showering money is a method of inducement which has to be checked. In any case, such is the perception of the State prompting the legislature to make a provision of this kind, which cannot be labelled as fanciful.

He submitted that it can be treated as moral code of the society. Therefore, Section 8(4) has to be judged through such a lens.

In the alternative, it was argued that principle of severability can always be applied and the provision should be saved by excising offending portions therefrom.

Judgement

The Court applying the principle of severability held that insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident. The act of showering money has tendency to create a situation of indecency but handing over of the notes to the dancers personally is not inappropriate. The Court set aside the provision of giving the tips only by adding the same in the bills. Therefore, whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins etc. However, there may not be any justification in giving such tips only by adding thereto in the bills to be raised by the administration of the place. On the contrary, if that is done, the person who is rightful recipient of such tips may be denied the same. Further, State cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand.

Legality of certain Rules made under the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016

Regarding Rule 3(3)(i)

As per this sub-rule, a person is entitled to obtain or hold licence who possesses a ‘good character’ and ‘antecedents’ and he should not have any history of ‘criminal record’ in the past ten years. However, the terms ‘good character’ or ‘antecedents’ or ‘criminal record’ are 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. Likewise, insofar as history of criminal record is concerned, it is not spelled out as to whether such a criminal record is based on conviction in a case or mere lodging of FIR would be termed as criminal record. The Court, therefore, quash the provision in the present form, but, at the same time, give liberty to the rule making authority to have suitable provision of precise nature.

Regarding stipulates that the place where dance is to be performed shall be at least 1 km away from the educational and religious institutions

Such a condition does not take into account the ground realities particularly in the city of Mumbai where it would be difficult to find any place which is 1 km away from either an education institution or a religious institution. Therefore, this condition is also held to be arbitrary and unreasonable and is quashed, with liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable.

Regarding Monthly Salary to performers

The condition of employing such persons on monthly salary does not stand the judicial scrutiny.

Regarding serving of alcohol in the bar room where dances are staged

The Court held that it is totally disproportionate, unreasonable and arbitrary. The Court see no reason as to why the liquor cannot be served at such places. It seems that State is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses. However, such conditions have been held to be unreasonable by the Courts.

Regarding installing of CCTV Cameras

The Court held that it is totally inappropriate and amounts to invasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution as held in K.S. Puttaswamy case.