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New Delhi: The Supreme Court on Thursday said Maharashtra cannot ban dance bars by taking recourse to regulating them and trying to achieve indirectly what it can't by a clamp-down.
Noting that "Since 2005, no licence has been issued", the court said: "There may be a regulation, but that does not amount to total prohibition."
The state, the bench of Justice A.K. Sikri and Justice Ashok Bhushan in their judgment said, was "aiming to achieve something indirectly which it could not do directly". "Such a situation is beyond comprehension and cannot be countenanced".
Saying that there is no quarrel over regulating the dance bars and making the "obscene dances" as penal offence, Justice Sikri pronouncing the judgement said the conditions stipulated under the law are "virtually impossible to perform" and the "real consequences and effect (of the regulation) is to prohibit such dance bars."
The court said this as it struck down certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016.
The court described as "impossible condition" that dance bars should be located one km from educational and religious institutions.
Describing as "totally disproportionate, unreasonable and arbitrary", the provision that proscribes serving of alcohol in the bar room where dances are staged, the court said, "We see no reason as to why the liquor cannot be served at such places. It seems that state is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers."
The court said, "If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses."
Quashing the provision, the court said that there could be "aberrations or sporadic incidents" of misbehaviour after taking liquor which could happen not only at the dance bars but at other places, including bar rooms and even main restaurants.
"Other measures have to be adopted to check such a nuance", the court said.
Upholding the provision that prohibits throwing or showering of coins, currency notes or any article or anything which can be monetised on the stage, the court said that "handing over of the notes to the dancers personally is not inappropriate."
The court set aside the provision of giving the tips only by adding the same to the bills.
Upholding the provision on employer entering into a contract with working women, dancers and waiters/waitresses and depositing their remuneration in bank accounts and describing it as transparent, the court, however, said "the condition of employing such persons on a monthly salary does not stand the judicial scrutiny."
Holding as "sufficient and substantial" the five-anda-half-hour time for the dance performances, the court said, "We do not find it to be manifestly unreasonable. Merely because establishments are otherwise open until 1:30 am (next day) or 12:30 am (next day) does not mean that the state has no power to restrict the time of dance performances till 11:30 pm".
Described as "totally inappropriate and amounting to invasion of privacy" the mandatory installation of CCTV cameras in dance area, the court said it violates Articles 14, 19(1)(a) and 21 of the Constitution.
Having taken a dim view of the way regulatory regime was being used to stall the dance bars, the court said, "We hope applications for granting licences shall now be considered more objectively and with an open mind so that there is no complete ban on staging dance performances at designated places prescribed in the Act."
Assailing the notion of that state that dance performances in the dance bars do not have "moralistic basis" and were giving rise to "exploitation of women", the court said, "We would like to re-emphasise that the state cannot take exception to staging dance performances per se".