Livelihood restored after years

It is a sad story of suspension of livelihood for eight years. 'Dancing in bars', where young women gyrate to Bollywood movie songs, was more a livelihood issue than a moral problem. Besides right to profession, issues of arbitrary power of State, contention of obscenity or vulgarity, freedom of speech and expression are involved in the recent decision of the Supreme Court. The Maharashtra government, especially its Home Minister R R Patil, found dancing in some bars both vulgar and immoral and in 2005 banned this profession, resulting in loss of livelihood of thousands of women. The Government said that such dancing would be 'derogatory, exploitative or corrupting of public morality'. By introducing section 33 b into the Bombay Police Act, 1951, the Maharashtra government prohibited dance by girls in bars and restaurants with less than three-star status, while it was permitted in other high- status bars.

The State Government contended that prostitution rackets were being run under the garb of beer bars and indecent and vulgar performances, "derogatory to society" were taking place. While there were only 345 licensed dance bars, about 2500 unlicensed bars were doing business in the State.

The organisations of these dance bars, restaurants and bar girls had argued that the preamble of the Bombay Police (Amendment) Act 2005, which had been struck down by the high court as unconstitutional, holds that dance performances for public amusement were permissible.

They also explained that there were over 70,000 women engaged in dance bars and several of them had already committed suicide due to unemployment and financial crunch; 72 per cent of bar girls were married and 68 per cent were sole breadwinners of their family.

The owner of Krishna bar and president of the Fight for Dance Bar Owners Rights Association, Manjit Singh Sethi, gave details of the employment in dance bars. Before the ban was enforced, dance bars employed some 75,000 bar girls and support staff such as make-up artists, drivers of vans used to drop these girls after their late-night shifts. Another 75,000 people had jobs related to the trade. After the ban was imposed, most of the owners converted their joints into regular bars and restaurants, but it was these girls and people engaged in associated trades who lost jobs. The dance bars fetch good revenue for the government too. As per news reports, the dance bars used to give the state government a revenue of more than Rs.50 lakh per month by way of entertainment tax. This doesn't include the excise on liquor and VAT (value added tax) on food among others.

According to one estimate, sharing of tips in dance bars used to take place between bar girls and management on a 70:30 basis, with the management providing transport, security, food and other amenities. Most of the girls are not residents of the town, but from the nomadic tribes of northern India, especially around the Agra region, from the Bhedia, Bhatu, Dhanawat, Gandharva, Chhari Rajnat and Nat communities. At tender age they were trained as dancers and made to perform during marriages and other festive occasions. The Mumbai dance bars opened up a new avenue for them, before the Maharashtra government used its authority to ban and secure some so-called 'morals'.

The court said: "This has led to the unemployment of over 75,000 women workers. It has been brought on 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)".

The judges have not touched the question of the right of the dancing girls under article 19(1) (a) freedom of speech and expression. The bar dancers knew no other trade to earn their living. It is a paradox that before livelihood was restored, 75,000 women had to wait for eight years. Their livelihood in effect was suspended for all these years. The counsel for dancing girls Anand Grover said that the litigation had taken seven years, but the women affected by the ban had waited patiently for the verdict.

Maharashtra's arbitrary law permitted dance performances at places visited by the rich and well-to-do sections of society, while performances in small dance bars had been banned. The Bombay High Court saw serious injustice in it and the Supreme Court rightly confirmed that finding. Dancing in dark is back.

The Supreme Court had earlier asked the Maharashtra government to consider banning only obscene forms of dance in hotels and bars through the Bombay Police Act, the same law that was used to ban all dance bars. The Government had argued against the opening of the dance bars on the grounds that the ban was imposed to prevent trafficking of women and had even offered to take part in talks with stakeholders to arrive at an amicable solution.

Confirming Bombay High Court's judgment, the Supreme Court 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."

A three-judge bench of Chief Justice Altamas Kabir, S S Nijjar and Gyan Sudha Mishra further explained the principle of equality: 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�.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 apex court questioned why Maharashtra does not find it to be indecent or derogatory to the dignity of women if they work as a receptionist, waitress or bar tender at such bars. The activities which are obscene or which are likely to deprave and corrupt those whose minds are open to such immoral influences cannot be distinguished on the basis as to whether they are performing in five-star hotels or in bars. The judicial conscience of this court would not give credence to a notion that high morals and decent behaviour is the exclusive domain of the upper classes whereas vulgarity and depravity is limited to the lower sections.

The State should remember that it has a responsibility to be reasonable and protective before imposing prohibitions. In the name of morality, without examining pros and cons of the prohibition, laws cannot be made, and any law that is made need to be examined on the constitutional yardstick so that people do not face hardship for whimsical decisions of the people in power.

- The writer is Professor & Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad