There’s a new wind that has blown in the Financial Capital of India – a wind that has had the power to shake up the city police and the Democratic Front Alliance of the Congress and Nationalist Party of India that is in power in the state, as well as cause considerable relief to the bar-owners and dancers who now see light at the end of the tunnel of hopelessness they were forced into since the bars were shut down from August 14, 2008.

For, close to five years after they were banned, dance bars can again run in Maharashtra, thanks to the Supreme Court on July 16th upholding a Bombay High Court verdict quashing the state government’s order. A Bench comprising former Chief Justice Altamas Kabir and Justice S.S. Nijjar also vacated its stay order on implementation of the High Court judgement.

Actually the issue dates back to 2002, when the Maharashtra government, on the basis of some studies, police complaints and other reports, concluded that “prostitution rackets were being run through pick up points in hotel establishments” which had dance bars and staged dance programmes and that “dance forms being presented therein are horrid and obscene and that criminals are being sheltered in such hotels”. Therefore, the government “considered it expedient to prohibit dance performances in eating houses or permit rooms or beer bars as such performance of dances in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt and/or injure public morality…”

In 2005, the Maharashtra government had brought in an amendment in the Bombay Police Act, 1951, which was challenged in the High Court by an association representing restaurants and bars. The following year, the High Court quashed the government’s decision following which the state moved the apex court against that order.

The Supreme Court while admitting the government’s plea had stayed the High Court’s verdict.

The Bombay Police Act amendment incorporated Sections 33A & 33B which came into effect from 14th August, 2005. Section 33A prohibited holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar and further made it a cognisable and non-bailable offence for people who, despite cancellation of the performance licenses, cause or facilitate such dances to take place. On the other hand, Section 33 B, permitted holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three-starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the central or state government for promoting the tourism activities in the State; or (b) cultural activities.

”The state government’s ban on dance bars was a clear case of violation of the fundamental right to work and choose one’s own profession,” says Delhi-based lawyer Jyostna Parashar.

Various organisations representing 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 Bombay High Court as unconstitutional, holds that dance performances for public amusement were permissible. The Court that held that “the type of dancing in both categories of establishments differs and therefore is sufficient to constitute intelligible differentia; However, the fact of different types of dancing being performed bears no nexus with the object sought to be achieved, which, was limited to the exploitation of women dancers. Consequently, the operation of the impugned enactment was held to be discriminatory”.

The organisations had also submitted 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. They had said that as many as 72 per cent of the bar girls were married and 68 per cent were sole bread earners of their families, and that the state government’s order had rendered them jobless.

There were reasons for large-scale protests and opposition to the state government’s stance on dance bars. In fact, it clamped down an iron hand on them and actions took the shape of harassment. Since 2005, only orchestra music was allowed by the government at bars during the day, all forms of “dancing, money throwing or other deals” were prohibited. There were also rules enforced that girls could work only till 9.30 pm, and restricted the number of girls could sing till 1.30 am.

During this period, the much-hated Assistant Commissioner of Police Vasant Dhoble of the social services branch became literally the manifestation of the iron hand, busting bars with a hockey stick, and charging many bar-owners and women under PITA (Prevention of Immoral Traffic Act).

A benchmark of its kind, the Supreme Court order has, understandably taken the stigma attached to the dance girls and the fears of dance bars encouraging prostitution into account, at the same time held that the two Sections (33A & 33B), are violative of article 14 and 19 (1) (g) under which the fundamental right to choose a trade and profession is upheld.

The Supreme Court, while observing that ‘morality and depravity cannot be pigeonholed’, ‘Classification — of Section 33A and 33B — suffers from impermissible Elitist Presumption’, ‘Legislation is not based on Reliable Empirical Evidence’, ‘The Prohibition is not for the protection of the vulnerable women’ and ‘a degree of harm caused to the atmosphere in the banned establishments and the surrounding areas’, also was categorical in stating that the state government’s “prohibition is violative of freedom to choose profession” and that the “impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g)”.

As former IPS officer-turned-social activist Kiran Bedi, while supporting the Supreme Court order countering the dance-bar prohibition, said, it was “like moral policing by the Maharashtra government.” Even if dance bars re-open in Mumbai scenes of patrons showering bar girls with bundles of currency notes may be a thing of the past. The Division Bench has asked the Maharashtra government to re-examine a set of rules for dance bars which were drawn up by a state-appointed committee headed by the principal secretary (home) and comprising representatives of the association of hotels and restaurants but have remained forgotten in the din of the order and the case.

According to the rules, there should be a dress code for bar dancers, that is, girls should not wear tight and provocative clothes or dresses which expose the body. Further, the rules lay down that the minimum size of the stage should be 120 square feet, and there should be not more than eight dancers at a time. In order to cut down on interaction between dancers and patrons, the panel recommended a threefoot high railing around the stage. Further, the committee suggested that all awards and tips to dancers would be routed through the manager, the committee said, and bars were given the responsibility of maintaining detailed personal records of dancers.

While referring to the rules, “The expression the ‘cure is worse than the disease’ comes to mind immediately,” the former Chief Justice said, while giving his views in addition to the main judgment penned by Justice Nijjar. “I fully endorse the suggestions in the judgment prepared by my learned brother that, instead of generating unemployment, it may be wiser for the state to look into ways and means in which reasonable restrictions may be imposed on bar dancing, but without completely prohibiting or stopping the same.”

Indeed. It’s not just about letting the dance girls ply their trade but also about the state government taking up the responsibility of maintaining the right environment and opportunity for them to do so, without actually harming their interests. Congress Member of Parliament Sanjay Nirupam, whose constituency has a large number of dance bars, told Rediff.com: “The Supreme Court order should be welcomed and respected. In fact the government should now ensure that the minority community, that is women, in this case bar dancers who are vulnerable, are protected from any sort of exploitation and given employment opportunity, instead of a head-on collision with them.”

Even as the Maharashtra government gets set to constitute a legal body to study the SC order and detractors like MNS chief Raj Thackeray sees it to be nothing else but an election ploy as bar owners have “lots of money” those like Varsha Kale, the leader of the bar dancers association feel quashing the state government’s ban has upheld constitutional rights of the citizens of the country. “We fought for eight long years, I’m happy that the court has taken cognisance of the fact that the image of bar dancers, which was perceived as negative, is not the actual case. This gives the bar dancers a fundamental right to earn, and respect to their profession,” Kale told the press.

However there is no denying that with the ban on dance bars going, along with employment generated for girls to take to the dancing floor and males getting jobs as waiters and bouncers, the ugly face of prostitution will also be lurking close.

According to senior journalist Amit Kshirsagar, also a Mumbai-based lawyer, the onus will be on the home department to be more alert about the issue. “It’s like if you have more vehicles on the road, the chances of road accidents go up. But then, you don’t ban vehicles, you build better roads, you streamline traffic, you put in place better policing, more traffic signals, regulate the traffic better. You see dance bars and lodges together along the highways around Mumbai — this only makes us apprehensive of the fact that prostitution does exist along with dance bars. But then so does the concept of hafta where the police can be bribed to turn a blind eye to criminal activities. That is where the government has to be more vigilant that such a nexus is not allowed to thrive. The government has to ensure better, more supervision of the bars.”

Former Chief Justice Kabir says it would be better to treat the cause than to blame the effect. What he means is that discontinuing a livelihood of a large section of women by banning dance bars is not the solution. The solution lies in better governance. Can the Maharashtra government ensure that?