Dancing Around Morality

**Mahi Dahibaokar

The Indian courts have frequently been the battlefield between social and constitutional morality. The judgment of the Supreme Court in Indian Hotel and Restaurant Association (AHAR) vs. The State of Maharashtra commonly referred to as the “Dance Bar case”) exemplifies this conflict. While the verdict was hailed as a triumph for the basic rights of bar dancers, it also demonstrated the judiciary’s hesitation to go the whole hog in accepting the values of autonomy, dignity, and freedom that it had so eloquently espoused in other milestone judgments such as Navtej Singh Johar (decriminalizing homosexuality) and Justice K.S. Puttaswamy (right to privacy).

This blog examines the intricacies of the dance bar judgment, and how the decision of the Supreme Court, though progressive in certain ways, did not quite enforce constitutional morality to the fullest, leaving doors open for social morality to play its part in bar dancers’ rights.

The Dance Bar Ban: A Brief Background

In 2005, the Maharashtra government instituted a ban on dance in bars on grounds of “obscenity” and the “moral degradation” of society. The prohibition was challenged by The Indian Hotel and Restaurant Association, and subsequent to a legal challenge, the Supreme Court, in 2019, struck down certain provisions of the Maharashtra Prohibition of Obscene Dance Act, 2016. The Court upheld the right of bar dancers to pursue their profession under Article 19(1)(g) of the Constitution, which assures the right to pursue any profession, trade, or business. But the judgment was not a total triumph for the dancers. Although the Court invalidated certain restrictive provisions, it upheld others, and the state was left with considerable discretionary authority to regulate bar dancing. This ambivalence in the judgment is significant in raising questions regarding the Court’s adherence to constitutional morality and its readiness to defy societal norms.

The Vagueness of “Obscenity” and the Prurient Interest

One of the most controversial parts of the ruling was the Court’s handling of the word “obscenity.” The Bar Girls Union contended that the word was unconstitutionally vague and based on majoritarian moral presumptions derived from the colonial morality norms. The Court, however, maintained the definition of obscenity as that which “appeals to the prurient interest,” a test that has been criticized as being out of date and subjective.

The Court’s use of the “prurient interest” test is especially disappointing in view of its recent progressive judgments in Navtej Singh Johar and Puttaswamy. There, the Court had stressed individual autonomy and dignity, shifting from community morality as a ground to limit rights. However, in the dance bar case, the Court fell back on a benchmark that permits the moral susceptibilities of the majority to determine what is “obscenity.” This contradiction points to the judiciary’s difficulty in fully adopting the tenets of constitutional morality in sexual expression cases.

The Licensing Regime: A Prior Restraint on Expression

The other main issue in the case was the licensing of bar dancing. The Bar Girls Union contended that the imposition of a license to dance at a bar was an unconstitutional “prior restraint” under Indian law, which is presumed to be violative of fundamental rights. Prior restraint is an imposition on expression prior to entering the public space, as distinguished from punishing someone for violating a law. The Court did not address this argument, however, and left the regime of licenses in place. This is a serious omission, since the need for a license essentially vests the state with the authority to regulate and limit bar dancing, which negates the dancers’ freedom of expression right under Article 19(1)(a). The Court’s hesitation to deal with this matter is symptomatic of a larger unease with applying constitutional rights jurisprudence in its entirety to activities that run counter to societal norms.

The Half-Way House: A Compromise of Rights

The dance bar judgment is, in a sense, a compromise. On one hand, the Court invalidated some of the restrictive clauses, including the prohibition of alcohol and the mandatory CCTV cameras, acknowledging the rights of bar dancers to exercise their profession. In contrast, the Court enforced other restrictions, including the ban on “showering coins” over dancers and a requirement that bar dancing cease by 11:30 PM. These restrictions were defended on nebulous grounds of “decency” and “social morality,” with no definite constitutional basis.

This in-between stance demonstrates the Court’s tension between its activist bluster and its conservative inclinations. While the Court ideologically declared the validity of bar dancing as a profession, it still policed it as a potentially menacing activity deserving of regulation by the state. This performative jurisprudence places bar dancers in a vulnerable position where their rights are legitimated in principle but held hostage by state actors in practice.

Constitutional Morality and Social Morality

The dance bar judgment highlights the need for a more precise definition of constitutional morality. In cases such as Navtej Singh Johar, the Court unequivocally rejected social morality as the basis for curbing rights, stressing the necessity of individual autonomy and dignity. But in the case of dance bars, the Court’s turning to social morality to delineate “obscenity” and validate censorship on bar dancing is a retrograde step. The inconsistency calls for the judiciary to articulate a more rational and principle-based framework for constitutional morality. Lacking a clear definition, the notion can be used to manipulate the interests of the state or the majority at the expense of the rights of individuals.

Ultimately in my view the dance bar judgment is a mixed bag. On the positive side, it is a major triumph for the basic rights of bar dancers, affirming their right to pursue their vocation and striking down a number of repressive restrictions. On the negative side, the judgment fails to wholeheartedly adopt the canons of constitutional morality, leaving the door open for public morality to intrude into the rights of bar dancers.

The Court’s hesitation to apply the principles of autonomy, dignity, and liberty to the fullest in the dance bar case is an expression of a larger conflict in Indian jurisprudence. The judiciary has certainly come a long way in recent times, but it is yet to shed completely the constraints of societal mores and moralistic presumptions. The dance bar judgment is a reminder that the battle for constitutional morality is not yet won, and that the judiciary will have to keep changing if it is to effectively protect the rights of all citizens.

**Mahi Dahibaokar is a Master’s student of Public Policy at O.P. Jindal Global University. Her work sits at the intersection of law, technology, and political morality, focusing on how legal regimes regulate bodies, speech, and space. She has worked with the Vidhi Centre for Legal Policy and the Observer Research Foundation on issues spanning urban governance to media-driven misinformation. Based in Mumbai, her interests include internet governance, algorithmic bias, and critical approaches to emerging AI technologies.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.