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Earlier this month, the Supreme Court handed down a judgment dealing with the constitutional validity of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016 [“the Bar Dancers Act”], and its attendant rules. The Bar Dancers Act – that had been passed after the Supreme Court struck down a prior attempt to prohibit bar dancing – effectively imposed such a stringent set of requirements as pre-conditions for granting bar dancing licenses to establishments, that it was, for all practical purposes, prohibited (not a single license had been granted since the Act came into force).

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In a judgment authored by A.K. Sikri J. (with whom Bhushan J. concurred), the Supreme Court struck down some parts of the Act and the rules, watered down others, and upheld yet others. In a word, it “relaxed” the license conditions, while upholding the overall statutory framework of licensing in the first place. But when one reads through the judgment, it is difficult to discern the guiding principles at play; instead, the different parts of the judgment seem to be at war with one another, where the logic behind striking down certain restrictions would appear to apply squarely to others as well – but is not. The judgment, then, appears to be an unsatisfactory halfway-house, with the Court fashioning a compromise that would allow bar dancing to go on, but leave substantial discretionary power in the hands of the government to control it in the manner that it chose.

What were the provisions that the Court struck down? Inter alia, a ban on bar dancing within one kilometre of a religious or educational institution, a prohibition on the same establishment being granted a license both for a discotheque or orchestra and for bar dancing, a prohibition on tipping in any form, a prohibition on serving alcohol, mandatory CCTVs, and making a license conditional on the proprietor’s “good record” and “lack of criminal antecedents.” What were the bases on which the Court did so? Inter alia, that there was no factual foundation for the State’s claims bar dancing was likely to “deprave” public morals, that bar dancers were vulnerable and trafficked into the profession, that bar dancing was not res extra commercium and indeed, was protected under Articles 19(1)(a) (freedom of expression) and 19(1)(g) (freedom of trade) of the Constitution, and that the State was “influenced by moralistic overtones.”

However, if these were the bases of striking down what the Court did strike down, then it’s difficult to understand why the Court upheld what it upheld. For example, the Court upheld a prohibition upon people “showering coins” on bar dancers, on the basis that it had a “tendency to create a situation of indecency.” Sikri J. did not specify what, exactly, “indecency” meant, and what manner of “indecency” it was concerned with here. It’s difficult to understand how, on the one hand, prohibition on alcohol was struck down on the basis that the State was only “influenced by moralistic overtones” while on the other, the prohibition on “showering coins” was upheld on grounds of decency. Next, the Court upheld the restriction restriction requiring bar dancing to stop by 11 30 PM, even though the establishments themselves could remain open longer. However, the Court provided no reason whatsoever for this, something that is particularly glaring given that it had already affirmatively found that bar dancing was protected by Article 19(1)(g), and struck down a number of other provisions on that basis. Indeed, the Court’s only answer was that five-and-a-half hours (6PM to 11 30 PM) was enough time for bar dancing. That, however, is neither here nor there; it certainly does not explain the constitutionally justifiable basis for the restriction.

The most glaring set of contradictions, however, occurs in the Court’s examination of the claim made by the Bhartiya Bargirls Union: that the prohibition of “obscene dances” as a condition of the license was unconstitutional. “Obscenity” was (familiarly) defined as “appealing to the prurient interest”, and Sikri J. responded to this argument by quoting lengthy extracts from prior judgments on obscenity to hold that the term “prurient interest” was well-defined, and based on an assessment of community standards (indeed, the Court cited community sentiment as the basis for regulating obscenity in the first place).

This examination of the Court is particularly interesting, because it demonstrates with particular starkness how contradictory impulses can be at war within the same judgment: on the one hand, the progressive and liberal impulse, which insists that bar dancing is protected under Articles 19(1)(a) and (g), calls out the State for being driven by antediluvian moral sentiments, and cites feminist literature in order to endorse the agency of the bar dancers (whose union – as noted above – was a Petitioner before the Court); and on the other, the old, conservative impulse that still feels “this far and no further“, whose acceptance of a potentially subversive activity is conditioned upon first defanging it of any subversive elements. The persistence of the faintly hilarious, quaintly antique phrase, “prurient interest”, is perhaps a reminder that a frank discussion about the legitimacy of regulating sexual expression is still something that our courts instinctively shrink from.

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It is important to note that this was a situation where the Court was not bound to keep to the established obscenity standard. In both Puttaswamy (privacy) and Navtej Johar (377), nine- and five-judge benches had made it abundantly clear that, as far as fundamental rights are concerned, invocations of community morality (that, more often than not, are nothing more than stand-ins for the moral values of a governing elite) simply cannot suffice to restrict those rights. To keep on keepin’ on with the “prurient interest” standard of obscenity, therefore, marks something of a disappointing regression in the age of Puttaswamy.

There is a deeper issue here as well, which the Court did not consider: the core issue of licensing. In fairness to the Court, that aspect was conceded by the Hotel Association (although it does find mention in the written submissions of the Bargirls Union). Once the Court accepted that bar dancing was protected under Article 19(1)(a), the requirement of a license ipso facto amounts to pre-censorship and prior restraint. We know from Brij Bhushan’s Case that prior restraint when it comes to free expression is presumptively unconstitutional, while K.A. Abbas, of course, carved out a limited exception to that rule in the case of film censorship. But the Abbas judgment was based on very specific (if flawed) logic about how cinema impacts viewers; the automatic extension of that principle is certainly not warranted without careful consideration. Consequently, that issue remains open – and hopefully, will be raised again in the future.

The bar dancers judgment, then, is a curious one: it exhibits a Court that is struggling to publicly demonstrate that it is no longer bound by hidebound notions of community morality and elite disgust about potentially subversive sexual expression – but a Court that still remains deeply, instinctively, uncomfortable with the consequences of applying a full-blooded constitutional rights jurisprudence to this domain; a Court that wants to rhetorically remove the stigma associated with bar dancing, rhetorically clarify that it is as legitimate as any other profession, but nonetheless, when it comes down to the brass tacks, continues to treat it as a potentially threatening activity in special need of State licensing and regulation. What we end up with, therefore, is performative jurisprudence that takes us to an unsatisfactory half-way house – a supposed liberalisation of the regime, but with the critical power of granting the licenses (along with vast attendant power of abuse) with the State (and in this specific case, with the Commissioner of Police).