"Can the foundation of a judgment based on Article 19 be taken away by a statute," asked the bench of Justice Dipak Misra and Justice C. Nagappan as it rejected the state government's plea that the petitioner, Indian Hotel and Restaurant Association (IHRA), be asked to approach the Bombay High Court instead of directly knocking at the doors of the top court.
The IHRA has challenged the validity of some of the provisions of Maharashtra Prohibition of Obscene Dance in Hotel, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and the Rules.
While giving the Maharashtra government eight weeks time to respond to the petition by the IHRA, the court sought its response in two weeks on the plea for interim relief on the rule prohibiting liquor in the dance area and mandating the installation of CCTV cameras at the place of dance.
Directing the hearing on two issues on September 21, the bench noted that both were contrary to its 2014 judgment by which it had permitted the installation of CCTV cameras at the entrance only.
Appearing for IHRA, senior counsel Jayant Bhushan told the court that the definition of "obscene dance" is so vague that it was capable of being misused. He said that obscene dance has been defined as the one that is said to be designed only to "arouse prurient interest of the audience".
The senior counsel assailed the new law and the rules on several counts including that it takes away the liberty of a dancer to work at more than one place by asking that she by associated to a place by being its employee, prohibiting bars within one kilometre of an educational institution or a religious place, and providing for three years punishment to the owners of the bar for any obscene dances.
Bhushan said that under Section 294 of Indian Penal Code the punishment for an obscene act is three months but a state statute makes it three years and a fine. He said for any obscene dance performance, a owner of a dance bar could be accused of abetment and not for the obscene act itself.
He said restricting a bar dancer to restrict her professional activities to a particular bar amounted the infringement of her professional rights, and it was her right to perform at different places at different point of time.
The court found no illegality in the provision prohibiting the showering of coins and currency notes on bar dances as it said: "Prima facie we don't find any illegality as it is some kind of disrespect affecting someone on dignified culture and decency."
Telling the court that entire new law and the rules were an attempt to do again the things that have been set aside by the court, Bhushan told the court that law provides that where there is dance bar, there could not be an orchestra, and where there is an orchestra, there can't be a dance bar.
Senior counsel Shekhar Naphade defended the provision of law mandating the bar dances to be attached to a bar by being its employee on monthly basis, citing instances of law officers, doctors and architects who were working at one place only.
The bench did not appear convinced as Justice Misra observed: "Dancers in the bar are professionals and for professionals you can't have such rules."
As Naphade sought to describe as "absurd" the contention of Bhushan, senior counsel Rajeev Dhavan appearing for the association of bar dancers also questioned him, saying that "bar girls don't want to be tied (to a particular place). They will perform 8 p.m. to 10 p.m. at one place, after that at another place" which is their "right". Their right to sing and perform is independent of their right to be a professional, he added.
