January saw the culmination of the latest battle in a decades-long war between the Maharashtra government, and bar dancing. In Indian Hotel and Restaurant Association v State of Maharashtra, the Supreme Court (SC) was asked to consider the constitutional validity of a 2016 Maharashtra law (and some attendant rules), which was ostensibly passed to “regulate” bar dancing. The law was enacted on the heels of an SC judgment in 2013, which had struck down a previous legislative attempt by the government to ban bar dancing entirely (while exempting certain elite establishments from the ban). The government’s response to that judgment was to pass a fresh law in 2016, which imposed such a stringent set of conditions and licensing requirements, that made bar dancing virtually impossible.
In its judgment delivered this month, the SC invalidated some of these conditions, and liberalised others, thus giving the bar dancers some much-needed breathing space. For example, it struck down a restriction upon performances within “one kilometre” of a religious or educational institution, correctly observing that in a city as densely populated as Mumbai, this would effectively amount to an absolute prohibition. It also struck down as arbitrary a requirement that the same establishment could not be granted a licence both as a discotheque or orchestra, and for the purpose of bar dancing. It further struck down a prohibition on any form of tipping (while upholding a ban on “showering of notes”), and held that making a licence conditional upon the proprietor’s “good record” and “lack of criminal antecedents” was unconstitutionally vague. And finally, it struck down a number of rules that were redolent of old-fashioned colonial morality, such as the mandatory installation of CCTV cameras and a prohibition on serving alcohol.
To the extent that the SC’s judgment gets rid of some of the most stifling restrictions in Maharashtra’s law — which had, effectively, ensured that not one single licence was granted after the law was passed — it deserves praise. However, unfortunately, the judgment also represents a missed opportunity, as it fails to engage with two of the most crucial issues in the case, that were brought to the fore by the Bharatiya Bar Girls Union, one of the petitioners before the court.
The Bar Girls Union argued, first, that the prohibition on “obscene dancing” was unconscionably vague. “Obscenity” was defined as that which “appeals to the prurient interest”. More than that, however, a term such as “prurient interest” inevitably concealed within it majoritarian and moralistic assumptions about what constituted “prurience”. The SC’s response to this was disappointing: it simply stated that the test of prurience had been consistently applied for many years, and its scope was clear. What the SC bench failed to consider, however, was that in its 2017 privacy judgment, and in its 2018 judgment decriminalising homosexuality, the court itself had signalled a fundamental shift in its jurisprudence: as far as individual rights were concerned, the time had come to move away from giving credence to perceived majoritarian or communitarian norms, and, instead, to place autonomy, dignity, and liberty at the heart of the constitutional order. Words such as “prurience”— with their antediluvian antecedents — mark a regression to an age in which the instinctive moral taste of those in power substitutes constitutional values.
The Bar Girls Union also raised a more fundamental legal challenge, however: on the constitutionality of a licence requirement in the first place. Bar dancing, it argued, was protected expression under Article 19(1)(a) of the Constitution. And to impose the requirement of a licence upon expression was tantamount to imposing — what, in technical terms, is known as — a “prior restraint”: that is, a restriction before expression can enter the marketplace of ideas, as opposed to punishing someone after they actually break a law. It is on par with requiring all films to get clearance from a censor board (which is currently the law), or requiring all books to be cleared by a censor before they are published (which would be unconstitutional). Unfortunately, however, the SC failed to engage with this argument at all.
Thus, the SC’s judgment on bar dancers arrives at an unsatisfactory halfway house: it lifted some of the most draconian restrictions on the basis that constitutional rights were being violated, but failed to take its own constitutional reasoning to its logical conclusion. The judgment — as mentioned above — provides a breather, but also leaves wide loopholes for continued exploitation by the police and the government.
Gautam Bhatia is an advocate in the Supreme Court
via Why the Supreme Court ruling on bar dancers is unsatisfactory | columns | Hindustan Times