Bench upholds Bombay High Court order quashing Maharashtra’s ban order

The Supreme Court on Tuesday upheld a Bombay High Court judgment striking down as ultra vires the Constitution an order passed by the Maharashtra government in 2005 banning dance by girls in bars and restaurants with less than three-star status .

A Bench of Chief Justice Altamas Kabir and Justice S.S. Nijjar dismissed an appeal filed by the government, challenging the High Court ruling.

The State government had passed the order amending Section 33A of the Bombay Police Act, 1951, whereby dance by girls in high class hotels was permitted and prohibited in others.

Writing the judgment, Justice Nijjar said: “There is no justification that a dance permitted in exempted institutions under Section 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. We are of the firm opinion that the distinction, the foundation of which are classes of the establishments and classes/kind of persons, who frequent the establishment and those who own the establishments, cannot be supported under the constitutional philosophy so clearly stated in the Preamble of the Constitution and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender.”

The Bench said: “Rather it is evident that the same dancer can perform the same dance in the high class hotels, clubs and gymkhanas but is prohibited from doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so- called elite i.e. the rich and the famous would have higher standards of decency, morality or strength of character than their counterparts who have to content themselves with lesser facilities of inferior quality in the dance bars.”

The Bench said: “Such a presumption is abhorrent to the resolve in the Preamble to secure the citizens of India. In our opinion, if a certain kind of dance is sensuous in nature and if it causes sexual arousal in men, it cannot be said to be more in the prohibited establishments and less in the exempted establishments. Sexual arousal and lust in men and women and degree thereof cannot be said to be monopolised by the upper or lower classes. Nor can it be presumed that sexual arousal would generate a different character of behaviour, depending on the social strata of the audience.”

The Bench said: “The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counterproductive and cannot be sustained being ultra vires Article 19(1) (g).”