On November 5, Which Way Will Supreme Court Sway on Bar Dancers?

What stand will the Supreme Court take in the bar dancers case marred by a morality debate, asks Rakesh Bhatnagar.

While it’s believed that beauty lies in the eyes of a beholder, it can’t also be disputed that what’s perceived to be objectionable is a matter of subjective satisfaction.

While dealing with noted film maker K A Abbas’ petition seeking “U” certificate for his 1970 film ‘A Tale of Two Cities’, which was certified “A” by the Censor Board, the then Chief Justice of India M H Hidayatullah had ruled that the standards of judging what’s objectionable “must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.”

“If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman’s legs in everything, it cannot be helped,” is how Hidyataullah summed up the perception on what is often a matter of heated debates between ban mongers and a large section of the society which believes in life without policing.

Is State Intervention Justified?

This judgment and the principle of flickering perception is quite apt for the ongoing dispute whether the Maharashtra government can restrain professional girls from dancing in liquor bars and whether the state can impose stringent conditions on bar owners for using their floor.

At least 75,000 professional girls were rendered jobless due to an executive order passed by the Prithviraj Chavan government in 2006. Chavan’s successor Devendra Fadnavis followed in his footsteps, reiterating that his government favours the ban though it’s been lifted by the Supreme Court, with certain conditions.

Though the issue will be considered by a Supreme Court bench comprising Justices Dipak Misra and Prafulla C Pant on November 5, the state government and dance bar owners would have the opportunity to offer their stands on the issue which on one hand raises serious concern over the plight of professional dancers and, on other, whether their hitting the floor crosses the line of ‘obscenity’ or ‘objectionable’ gestures.

“No performance of dance shall remotely be expressive of any kind of obscenity in any manner”, the Supreme Court had said.

• At least 75,000 girls who worked as bar dancers, rendered jobless following a 2006 Maharashtra government order
• Issue will be considered by a Supreme Court bench on November 5
• Court will consider the question of plight of women employed and whether it amounts to obscenity
• Supreme Court in one of its verdicts had said no law should perpetuate oppression of women

Legal Argument

The licensing authority can take steps so that “the individual dignity of a woman is not affected and there remains no room for any kind of obscenity,” it observed on October 15 while revoking the ban imposed under Section 33A of the Maharashtra Police (Second Amendment) Act, 2014.

The judges drew strength from a significant 2007 verdict in a case involving the constitutional validity of Section 30 of the Punjab Excise Act, 1914, that prohibited employment of “any man under the age of 25 years” or “any woman” in any part of such premises in which liquor or intoxicating drugs is consumed.

The Delhi government had supported this law and cited the sensational Jessica Lal murder case in which three politically and financially influential boys barged into a private liquor party where Jessica was serving liquor. They wanted a drink. On her refusal to serve drinks to the already inebriated spoilt brats, one of them shot her dead.

But the Supreme Court slammed the Sheila Dikshit government for defending the legislation while hiding behind the poor girl.

Evolving the jurisprudence of transformation with the changing times, the judges said, “No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling state purpose.”

State Government’s Duty

Taking note of the fact that women are equal partners in all spheres life now, it was stressed that the changed social psyche and expectations are important factors to be considered in the upkeep of law.

Here individual rights are challenged by a problem of practical import of enforcement and security. Instead of altogether prohibiting women from employment in the bars, the state should focus on factoring in ways through which unequal consequences of gender differences can be eliminated, the judgment said.

“It is the state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference from societal conditions would be oppressive on the women and against privacy rights,” the verdict said.

This verdict could be the focal point during the future dispensation in the Supreme Court on the crucial issue whether women should be banned from dancing in bars and restaurants as not only objectionable or obscene and that there is a risk to them.

(The writer is a Delhi-based senior journalist)