2019 Supreme(SC) 40

SUPREME COURT OF INDIA
A.K. Sikri, Ashok Bhushan, JJ.
Indian Hotel & Restaurant Association (AHAR) & Another - Appellants
Vs.
The State of Maharashtra & Others - Respondents
Writ Petition (Civil) Nos. 576 of 2016; 24 & 119 of 2017
Decided On : 17-01-2019

IMPORTANT POINTS
State cannot thrust its own notion of morality.
Dance performances is not res extra commercium.
State cannot take exception to staging dance performances perse.
Dance form arousing prurient interest of the audience is not a vague term incapable of definite connotation.
Forbidding licences both for dance bars and discotheque/orchestra in respect of a particular place is arbitrary and therefore unconstitutional.
Section 8(2) is not invalid.
State cannot impose a particular manner of tipping.
Terms 'good character' or 'antecedents' or 'criminal record' are vague.
Conditions stipulated for obtaining the licence are virtually impossible to perform.
Installation of CCTV cameras is invasive of privacy.

Headnote:(a) Jurisprudence – Morality – A changing concept – A practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise 'social control' – However, state can pass a law prohibiting obscene dances if such obscene dance performances are not acceptable. (Para 77)

       (2004) 11 SCC 26; (1975) 2 SCC 148 – Relied upon

       (b) Interpretation – Principle of res extra commercium – Held, dance performances is not res extra commercium. (Para 78)

       (2013) 8 SCC 519 – Relied upon

       (c) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – Section 2(8)(i) and (ii) r/w section 294 and 292, Indian Penal Code, 1860 – Obscene – Clause (ii) a reflection of section 294 – Word prurient in clause (i) – Word used in section 294 while defining obscenity – Section 2(8) bars a dance performance which arouses prurient interest or excessive interest in sexual matters – Dance form arousing prurient interest of the audience, held, not a vague term incapable of definite connotation. (Para 81, 84, 89)

       (1980)1 SCC 43 – Relied upon

       1996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB) – Cited with approval

       165: 472 US 491 (1985) : 105 S.Ct. 2794 : 86 L.Ed.2d 394; 1996 SCC Online ZACC 8 : [1996] ZACC 7; (1965) 1 SCR 65; (1996) 4 SCC 17; (2006) 8 SCC 433; (2007)1 SCC 143; 1957 SCR 874 – Referred

       (d) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – Section 6(4) – Forbidding licences both for dance bars and discotheque/orchestra in respect of a particular place – Held arbitrary and therefore unconstitutional. (Para 90)

       (2004) 1 SCC 320; (2004) 6 SCC 36 – Referred

       (e) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – Section 8 r/w section 294, Indian Penal Code, 1860 – Sub-section (1) and (2) have to be read together – Offence u/s 8(2) is different than those u/s 294 – Punishments under the two provisions also different – Section 8(2), held, not invalid. (Para 92)

       (2018)11 SCC 1 – Referred

       (f) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – Section 8(4) r/w condition Nos. 6, 7 and 8 of Part B, Schedule – Banning throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such notes, to a dancer and making it an offence – Also prescribing giving such tips only by adding thereto in the bills – Provision held justified insofar as throwing or showering coins, currency notes etc. is concerned – However, State cannot impose a particular manner of tipping. (Para 93)

       (g) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 – Section 12 – Representation of bar dancers on grievance redressal committee – May be desirable, but matter left to the law makers to consider. (Para 94)

       (h) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Rule 3(3)(i) r/w condition no. 16, Part B, Schedule – Terms 'good character' or 'antecedents' or 'criminal record' – Held vague – Struck down – Liberty given to law makers to to have suitable provision of precise nature. (Para 95)

       (i) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Part A, Condition No. 2 – Prescription of fixed partition between permit room and dance room – Struck down being unreasonable. (Para 97)

       (1959) SCR 279; (1986) 2 SCC 516; (1981) 2 SCC 600 – Referred

       (j) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Condition 11 – Distance of dance bars at least 1 km from educational and religious institutions – Struck down being arbitrary, unreasonable and an impossible condition in Mumbai. (Para 98)

       (k) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Condition No. 2 of Part B – Provision for written contract held justified – Condition of employment on monthly salary only held not justified and violative of Article 19(1)(g), Constitution of India. (Para 99)

       (l) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Condition No. 9 of Part B – Prescription of timing of dance performances only between 6 pm to 11:30 pm – Held not manifestly unreasonable – Merely because establishments are otherwise open until 1:30 am (next day) or 12:30 am (next day) does not mean that the State has no power to restrict the time of dance performances till 11:30 pm. (Para 100)

       (m) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Condition No. 12 of Part B – Prohibiting serving of alcohol in bar room where dances are staged – Held to be unreasonable – There cannot be a complete prohibition from serving alcoholic beverages – Condition No. 12 quashed. (Para 101)

       (n) Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 – Schedule, Condition No. 20 of Part B – Installation of CCTV cameras – Held invasive of privacy and thus violative of Articles 14, 19(1)(a) and 21, Constitution of India. (Para 102)

       (2017) 10 SCC 1 – Relied upon

       Facts of the case:

       Sections 2(8)(i), Section 6(4), Section 8(1 )(2) and (4) of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 and Rule 3 and condition Nos. 2 and 11 of Part A and condition Nos. 2, 6, 9, 12, 16, 17 and 20 of Part B of the Schedule of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Rules, 2016 have been challenged in these writ petition as being violative of fundamental rights under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India.

       Finding of the Court:

       Some provisions of the Act and the Rules are unconstitutional.

       Result: Petitions partly allowed.