Dancing around the Supreme Court

The dance bar case yields insights on the interaction between governments and the courts

January 28, 2019 12:15 am | Updated 12:15 am IST

The SC’s decision is part of a long iterative game between the Maharashtra government and the courts. A dance bar in Mumbai.

The SC’s decision is part of a long iterative game between the Maharashtra government and the courts. A dance bar in Mumbai.

On January 17, the Supreme Court struck down several statutory provisions and rules governing Maharashtra’s dance bars. This decision forms part of an iterative game that has evolved over 14 years between the Maharashtra government and the courts.

Prolonged interactions

In 2005, the Maharashtra government imposed a ban on dance performances in bars, with the exception of hotels rated three stars and above. The public rationale offered was that these performances were obscene, morally corrupt, and promoted prostitution. Dance performance licenses were cancelled with immediate effect, prompting affected parties to file petitions in the Bombay High Court. The High Court held against the government, resulting in an appeal to the Supreme Court.

The Supreme Court affirmed the High Court’s decision in July 2013, pursuing two lines of reasoning. One, the government could not discriminate between luxury hotels and other establishments seeking licenses for dance performances. Two, the ban had proven to be counterproductive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution.

Rather than implementing the Supreme Court’s decision, the government swiftly devised a strategy to sidestep it, imposing an outright ban on all dance performances, whether in street bars or upmarket hotels. Although the government’s response addressed the court’s first concern, it failed to address the second. This led to fresh proceedings in the Supreme Court. While the court saw through the government’s attempt to circumvent its decision, it left room for the government to prohibit obscene dances with a view to protecting the dignity of the dancers.

Once again, the government responded in a matter of months. This time, the government’s response was more sophisticated and took cues from the Supreme Court’s decision. Rather than seeking to impose a ban on dance performances altogether, it only did so to the extent that these performances were obscene or overtly sexual. However, it imposed a number of other conditions on establishments seeking a license for such performances. Applicants were required to “possess a good character” with no criminal antecedents. The establishment could not be within one kilometre of an educational or religious institution. A CCTV camera would need to be fitted at the entrance. Customers could not be permitted to throw coins or currency notes on the dancers, but could add tips to the bill. The permit room (where alcohol was served) and the dance room would need to be separated by a partition. The stage could not be smaller than a prescribed size. Some of these conditions were challenged in the Supreme Court on the basis that they were far too onerous.

On January 17, the court upheld a few of these conditions, but struck down others. For example, it noted that the CCTV requirement violated the right to privacy of the dancers and the patrons, the “good character” requirement was vague, the partition between the permit room and the dance room was unjustified, and the one kilometre distance requirement was impractical.

However, what the court found especially revealing was that amongst the dozens of applications filed since the new rules were put in place, not a single one had been approved by the government. The court therefore saw the government’s most recent response as a ban on dance bars masquerading as an attempt to regulate them. The court would have none of it: “[The government is] aiming to achieve something indirectly which it could not do directly... [this] cannot be countenanced”.

These developments yield insights on the institutional interaction between governments and the courts. Through each iteration of this case, the Maharashtra government has responded more swiftly to judicial decisions than the Supreme Court has to the government’s attempts to sidestep them. The final judicial decision in the first round took just short of eight years, while the government’s response took about 11 months. In the second round, the court took a year and three months to make its decision; the government responded in six months. In the third round, the court has taken just short of three years. The government’s response time is to be seen.

Reasons for disparity

A number of structural reasons may account for this disparity. Despite heavy caseloads, courts must provide an opportunity for a fair hearing, deliberate, and set out reasons for their decisions. Courts will also typically not consider cases unilaterally, but are dependent on parties to bring proceedings in search of a remedy. Separately, the ban on dance bars has also received a disconcerting level of cross-party political support in Maharashtra, despite the regime changes since 2005. This has meant that legislation has often been enacted unopposed, without any meaningful discussion on the floor of the House. The amendments of 2014, for example, were approved by the Maharashtra Cabinet on a Thursday, and sailed through the Vidhan Sabha and Vidhan Parishad within minutes on the following day.

The practical implication of the government being more nimble than the courts is that even when government responses are imperfect, the court produces significant delays. This case outlines the vulnerability of what is otherwise seen as an all-powerful Supreme Court, especially when it depends on the government to comply with its decisions in some positive way, such as by issuing dance bar licenses. Even when the courts exercise the putatively “negative” function of striking down legislation or rules, the level of compliance with their decisions often lies in the hands of the executive.

These developments should also lead courts to introspect about the existing remedial landscape in cases where legislation is challenged. The Supreme Court often deploys the writ of continuing mandamus (issuing a series of interim orders over a period of time to monitor compliance with its decisions) in public interest litigation cases that test the limits of its jurisdiction. It has chosen not to adopt that enforcement strategy in this case, which falls squarely within the four corners of its jurisdiction. While the court cannot direct the enactment of legislation, it can monitor compliance with an order to issue licenses to qualified applicants.

A further response from the Maharashtra government now seems almost inevitable. The court struck down the one kilometre distance requirement, but did not say that any distance requirement would be invalid. While unconstitutional in its present form, it noted that the “good character” requirement could be defined more precisely. These are only two among the many options that are now available to the government in responding to the court’s decision.

The court concluded its judgment with the “hope” that applications for licenses would “now be considered more objectively and with [an] open mind”. Similar hopes have been expressed earlier. It is hard to believe that this time will be any different.

Chintan Chandrachud is an Associate at Quinn Emanuel Urquhart & Sullivan LLP, London. Views are personal

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