REDEFINING THE NOTION OF MORALITY: INDIAN HOTEL AND RESTAURANT ASSOCIATION V. STATE OF MAHARASHTRA
In this article, the author has explained the notion of cultural relativism and morality in India. The author has discussed it through the case of the Indian Hotel and Restaurant Association (AHAR) v. State of Maharashtra.
Cultural Relativism is a widely accepted truth of life which makes morality a subjective concept. Morality is nothing, but the different opinion of a set of people who have learned things from their predecessor, through their experiences. Thus, what is moral for one might be immoral for the other. The state cannot impose its vision of morality in the society, until and unless that is against the constitutional morality.[i]
In Hindu Mythology, Lord Shiva is popularly known as Nataraja, King of Dance which shows the importance of dance as an art. Dance is embedded in our culture irrespective of our religion, caste, creed, etc. Different states have different forms of dance and it has developed as a form of entertainment rapidly.
It may be performed for theatres, for a cultural event or in other venues of amusement, one field of such performances is dancing in bars, which is a source of income for many women who have taken dancing as a full-time work to generate their livelihood. This has been opposed by some of the members of the society who associate it with obscenity.
The State has a duty to act against immorality and has the power to legislate and make any law that benefits society at large. The State of Maharashtra labeled these bar dances as immoral and obscene and further, it linked them to be one of the reasons of prostitution. Thus, it passed an act i.e. The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women Act, 2016 along with the Rules framed thereunder being the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women Rules, 2016, with an objective to prohibit obscene dance in places and to improve the condition of women therein.[ii] The above Act strictly directs the hotel, restaurant, barroom or any other place where dances are staged, to obtain the license by following the provisions.
The present case has arisen due to the stringent procedures which do not directly debar women from dancing, but through the rigid procedures of obtaining a license and following specific conditions, have thrown them out of their own profession.
The objective for introducing such legislation was to protect the dignity and safety of women in such places with a view to preventing their exploitation, but the legislation has achieved the opposite result. Many conditions in the legislation stipulated for obtaining the licence are virtually impossible to perform. After the act came into being, not a single establishment have been established due to a lack of grants of license.[iii]
It is clear from the result that the State is trying to appear as if they are regulating the dance bars, but in reality, they are trying to prohibit them. The State argued that they are trying to protect the dignity of women, but in reality, they are putting their lives in an adverse position because they are uneducated. They contended that they are trying to control the obscenity, in reality, those bar dancers are merely imitating the dance steps and movements in a very civilized and decent manner. They also contended that this Act will help them to regulate the trafficking of girls who are forced in bar dancing; rather the girls are coming to bar dancing by their own will and with the aid and advice of their family.
The Constitution empowers the people right to practice any profession whatever they wish to under Article 19(1)(g) as well as right of freedom of expression through dancing guaranteed under Article 19(1)(a) of the Constitution of India. The State cannot force its thought of ethical morality on the society. A profession cannot be considered as immoral and obscene when it is the source of income for many. The aftermath of this Act, many women were forced into prostitution as an alternative, which deteriorated their condition and hampered their dignity. The effect of that ban was not only on dancers but also on their young children because of lack of means of earning.[iv]
This act of state is directly snatching the women, right to life and liberty enshrined under Article 21 of The Constitution of India by making the process for obtaining licence arduous.
It has given us some fundamental rights which cannot be snatched by a state by virtue of Article 13 of The Constitution of India. It is the obligation of the state to protect its subject and to ensure that they live a life with dignity. This legislation was arbitrary and had deprived the women of their most basic rights.
Cinema is a segment where we have now accepted that moral standards have changed over time, and Indian audiences are free to view content that would have been inconceivable in times when the idea of morality was unbending. A state cannot make a law on its whims and fancies considering something to be against the code of ethics. Code of morals of a majority cannot be considered to be state’s morality. It is necessary to put restrictions on the liberty of people to put an end to the menace in the society but it cannot take away their most basic right to practice any profession and the right to live with dignity.
The principle of allowing women dancers to earn their living, provided they do so safely and do not indulge in obscenity is gaining momentum by the decision of the Supreme Court. SC upholding the principle of Rule of Law, quashed the provisions of the Act which were unconstitutional, unreasonable and in derogation with the rights of the bar dancers.[v] Hence, the present rules have to be modified by the state legislature to open the platform for bar dancers so that they can pursue their work. The Supreme Court in the case correctly recognized bar dancing as a form of art, expression, and profession rather than considering it as an act against the morals and public decency.
References: [i] Scott Wisdom, The Judgment of Constitutional Morality (Sept. 2008) (M.A. Thesis, McMaster University) at 33, https://pdfs.semanticscholar.org/3e7d/0b9aa90c4398618d2ea4e8d055fa0a5eee49.pdf, (visited at January 21,2020) [ii] Statement of Object & Reasons of The Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016. [iii] Indian Hotel and Restaurant Association v. State of Maharashtra, 2019 SCC OnLine SC 41, Para 104. [iv] The Publisher, Dance bars more about livelihood than morality, The Asian Age, Jan. 19, 2019. [v] Indian Hotel and Restaurant Association v. State of Maharashtra, 2019 SCC OnLine SC 41.
Ayushi Bhutra and Ruchir Jain,
Maharashtra National Law University, Nagpur.
(Images used for representative purpose only)