Ostensibly to nullify the SC ruling that had paved the way for dance bar owners lift their shutters once again, the Maharashtra government has cleared an amendment to plug the legal loophole, which led the court quash the ban. The state cabinet decided to extend the ban to high-end hotels and private clubs too and the new law will hence affect a total ban on dance bars and dance performances.
In the process, however, the state government has clearly ignored the larger point made by the apex court in its 133-page July 2013 judgement.
While the state government has apparently chosen to drop a provision from the Bombay Police Act, 1951, that allowed dance performances in exempted establishments like three-star and five-star hotels but banned it elsewhere, it has failed to address the real issue flagged by the SC.
A large number of imaginative alternative steps could be taken instead of completely prohibiting dancing if the real concern of the State is the safety of women, the court had said in its order, while emphasising that the state had failed in establishing that such restrictions would be reasonable or be in the interest of general public.
The SC had added: It would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls.
The court had then unequivocally told the Maharashtra government: In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance.
Wondering why there was a need to have the contentious provisions in the Police Act, the SC had asserted that there were already sufficient rules and regulations and legislation in place which, if efficiently applied, would control if not eradicate all the dangers to the society, and protect the dignity of women.
The Rules under the Bombay Police Act have been framed in the interest of public safety and social welfare and to safeguard the dignity of women as well as prevent exploitation of women. There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions.., it said.
The SC pointed out there were specific legal provisions also under the Amusement Rules, 1960, that prescribed conditions for holding performances, besides various provisions under the Bombay Police Act to take all necessary steps to prevent inconvenience to residents or passers-by or for maintaining public safety and for taking necessary steps in the interests of public order, decency and morality.
The court had also reproached the states argument that that the legislation was brought about on the admission of the police that it was unable to effectively control the situation in spite of the existence of all the necessary legislation, rules and regulations. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation, held the court.
The ruling also highlighted how the 2005 ban had led to the unemployment of over 75,000 women workers and thus held the ban to be unconstitutional, being violative of Article 19(1)(g) that guarantees the freedom to practise any profession, or to carry on any occupation, trade or business.
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 counter productive and cannot be sustained being ultra vires Article 19(1)(g), said the court.
Extension of ban is, therefore, expected to invite scrutiny by a court of law when the recent amendment is challenged by dance bar owners and performers who last month got contempt notices issued against state home minister R R Patil for not processing the licenses to run these bars despite the SC ruling.