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SC ruling half the battle won for bar dancers

THE Supreme Court has again come to the aid of dance bar owners and bar dancers, upholding their respective rights to run their business and earn a livelihood, while striking down the stringent rules and regulations imposed by the Maharashtra Government for the issuance of licences for dance performances in bars.

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Flavia Agnes
Women’s Rights Lawyer

THE Supreme Court has again come to the aid of dance bar owners and bar dancers, upholding their respective rights to run their business and earn a livelihood, while striking down the stringent rules and regulations imposed by the Maharashtra Government for the issuance of licences for dance performances in bars.

However, despite the positive ruling, when we track the history of this legal battle which has gone on for a decade and a half, it is doubtful whether the state legislature, which had voted unanimously to bring about a ban across the political divide in 2004, will allow the bars to reopen and the girls to dance and earn a living with dignity and protection.

Each time the Supreme Court has upheld the rights of bar owners and dancers, the government enacted laws and imposed rules which would in effect checkmate the directives. 

The first time was in 2013, when the apex court upheld the 2006 judgment of the Bombay High Court, which had struck down the ban imposed by the Maharashtra Government in 2005. The Bench headed by then Chief Justice of India Altamas Kabir and Justice SS Nijjar had commented sympathetically on the plight of the dancers: “Depriving a person of their right to dance and earn a livelihood violated the fundamental right to freedom of speech and expression and most importantly, violated Article 21, the right to life, which includes the right to livelihood. The courts cannot endorse such blatant injustice towards women who are at the lowest rung of the dance bar industry… Even a bar dancer has to satisfy her hunger, provide for her family and meet her day-to-day expenses.”

The women’s groups were divided on this issue, with both sides staking their claim to speak on behalf of the dancers — using the language of rights, freedom, protection and safety to argue for or against the ban.

It is indeed ironic that the ‘conservative’ courts have been their only saviours as they batted for the dancers, understood their trauma and attempted to bring solace, unlike the ordinary people who took great pleasure in visiting the bars and revelling in the dancing. One would have imagined that the public at large would be more compassionate. But it was not to be. Suddenly, the very people who were entertained by the dancers for over three decades were baying for their blood by brandishing the sword of ‘public morality’.

To circumvent the ruling, the state Cabinet decided in 2014 to extend the ban to high-end hotels and private clubs, which had been exempted from the ban in the earlier amendment. But when the case was argued before the Supreme Court in 2015, the court vented its ire on the government for flouting its 2013 judgment, which granted interim relief to the bar owners. 

The ban had thrown around 75,000 illiterate girls — many being migrants and sole breadwinners of their families — to the wolves without concern for their safety and protection. This was done on the hypocritical premise that dancing in bars leads to prostitution and spurs trafficking of girls.

To counter the Supreme Court verdict of 2015, the government brought in the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016. The rules framed prescribed that the dancing arena should be separate from the place where liquor is served and that a dance bar cannot be situated within 1 km of a religious place or educational institution. It also mandated that the premises must be shut by 11:30 pm, besides imposing heavy penalties on dance bar owners and customers for not following these rules.

On January 17 this year, the Bench comprising Justice AK Sikri and Justice Ashok Bhushan struck down some of these stringent rules. Observing that no dance bar licence had been handed out since 2005, the apex court said the Maharashtra Government “can’t ban dance bars by using the term ‘regulating’ them.” 

The court stated that the rule stipulating that there should be a distance of 1 km between a religious place or educational institute and a dance bar was ‘not reasonable’ in a densely populated city like Mumbai.

While the SC upheld the rule that currency notes cannot be showered on the performers as it is demeaning to them, it upheld their right to receive tips from patrons. The rule requiring a partition between bar rooms and the dance floor was also quashed by the court.

The rule on installation of CCTVs was annulled on the ground that it violated privacy. The Supreme Court struck down the provision that the owner of the dance bar should have a ‘good character’ and no ‘criminal antecedents’ and held that “there is no precise definition of what amounts to good character and criminal antecedents.”

On behalf of dance bar owners, it was argued that the government took the stand that it would not permit dance bars irrespective of the court orders. The Bench commented: “From 2005 till date, not a single person has been given licence for dance bars. This cannot be done. There can be regulations, but it cannot amount to total prohibition.” Expressing its displeasure, the court had commented last year, “It seems like total moral policing is going on in the state.”

However, the court upheld the stipulation that bars cannot be kept open beyond 11:30 pm, besides the clause that the dance performances cannot be ‘obscene’. But what is ‘obscene’ is a matter of subjectivity. Since most dancers imitate the dances performed in Hindi films, which are for public viewing and have duly received certification, the same performed in dance bars wearing similar costumes cannot be held to be ‘obscene’. This provision will provide scope for police raids to be conducted in dance bars, subjecting the performers to untold harassment and humiliation.

But all this will be a concern only after the government issues the licences. It is anyone’s guess whether this stage will be reached because the discussions are already being held to bring in another ordinance so that the government can skirt the SC judgment.

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