OVERREACTION OF THE MAHARASHTRA GOVERNMENT VERSUS RATIONALE OF THE SUPREME COURT

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AUTHOR:

Javed Rafi ( javed.[email protected] )

4th year, BA.LLB.(Hons.), Jamia Millia Islamia

In 2005, the outright ban on dance bars by the Maharashtra government had encroached upon the livelihoods of many young girls and pushed them into a cauldron of poverty and helplessness. What should we call it? An overreaction or lack of thinking? These two terminologies have been used by the apex court when it itself observed that rather than searching for viable alternatives for women, the ban has resulted in large-scale joblessness among them.

On June 1, 2005, the State government passed a bill to introduce sections 33A and 33B which prohibited ‘any type of dancing’ in an “eating house, permit room or beer bar” while allowing dance performances in three star and above hotels and other ‘elite’ establishments. On August 15, 2005 The Bombay Police (Amendment) Act, 2005, came into force. All dance bar licences stood cancelled.

Then a petition was filed against the ban by India Hotel & Restaurant Association, a host of NGOs and the Bhartiya Bargirls Union in the Mumbai High Court . The High Court set aside the ban in 2006 stating the ban as ‘void’ in law and held it was ‘not in public interest.’

The state government had sought to justify that the dance bars had morphed into institutions which promoted “complete objectification and dehumanization of young women”. The State government forgot to think of the aftermath when it ordered to shut down the city night-light of the dance bars and prohibit women from continuing their dancing profession. After the ban in 2005, it had resulted in an increase in trafficking and many women were found indulging into prostitution.

The State moved to the Supreme Court which on 16th July 2013 upheld High Court judgment and quashed dance bar ban. Deciding on the constitutionality of the ban on dance performances in bars in Maharashtra imposed under The Bombay Police (Amendment) Act of 2005, the apex court gave its order in favour of the bar owners and dancers’ union who had contended that the ban on bar dances in some establishments while permitting them in others was contrary to the rule of equality enshrined in Article 14.

Dancing had always been a tradition in our country since ancient India and during the Mughal period. Nowadays, it is used as entertainment as well as profession. Those women who use it as profession cannot be restrained from doing the same because they have fundamental right under Article 19(1)(g) of the Indian Constitution. If there is an increase in prostitution or trafficking the State government must focus on that issue and try to take appropriate step. Rooting out the whole plant is not going to eradicate problems but on the contrary it would help to fuel other problems.

For example, when fatal accidents were on the rise because of the recklessness of drunken drivers, driving while drunk was held as being criminal and punitive measures had also been framed. But rather than limiting such crimes if we ban the distribution of alchohol, that is not just and further it would lead to black marketing of drinks. Similarly, banning on the dance bars by the Maharashtra government was not proper or fair which reflected lack of thinking on their part.

Justice SS Nijjar said while authorizing the main judgment in State of Maharashtra & Anr. v. Indian Hotel & Restaurants Assn. & Ors. :

“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.”

Former C.J. Altamas Kabir said:

“The cure is worse than the disease as many of the dancers were forced into the sex trade after the ban.

The State has to provide alternative means of support and shelter to persons engaged in such trades or professions, some of whom are trafficked from different parts of the country and have nowhere to go or earn a living after coming out of their unfortunate circumstances”

The apex court has ruled wisely and sagely. The Maharashtra government needs to understand that the government’s job is governance, not morality or theology.