Tag Archives: Bombay High Court

Mumbai Dance Bar Ban: Differing Perspectives

30 Jul

In 2005, the Government of Maharashtra banned dance performances in eating houses, permit rooms and beer bars through an amendment in the Bombay Police Act, 1951. The ban was recently struck down both by the High Court of Bombay and the Supreme Court of India as unconstitutional.

The High Court and the Supreme Court held the ban to be violative of Article 14 (right to equality) and Article 19(1)(g) (right to practice any profession or occupation). The courts observed that the amendment unreasonably prohibited dance performances in some establishments while permitting them in other establishments like hotels starred three and above. This classification seems to be based on elitist presumptions about the morality of people with lesser incomes and was held to be violating the right to equality. The courts also noted that the prohibition on dancing forced many establishments to shut down and rendered many women workers unemployed. Contrary to its purpose, the law forced many dancers to take up prostitution to earn their living. Thus, the law infringed upon the guarantee under Article 19(1)(g). Now, the state of Maharashtra is likely to revert to the licensing system for regulation of dance bars.

Below, I try to put the debate around prohibiting/regulating dance bars within the framework of various broader perspectives, not necessarily drawn from the judgments, which might help in a better analysis of this debate. My purpose is not to give a definite answer on this issue, but to separate and present the differing strands that get implicated here. Here are the different arguments:

Morality: Dances in beer bars and similar places are obscene and vulgar. They not only degrade women, but also lead to an increase in other immoral activities like prostitution and alcoholism. It can be said this argument belongs to the ‘Conservatives’, though I am wary of using this classification as our prejudices against being a ‘conservative’ may prevent us from fairly appreciating the merits of the argument.

Equality: Performances in dance bars are derogatory to women because they commodity and objectify women. They also often involve minor girls who are trafficked, exploited and forced into dancing in bars. This view is likely to be advocated most strongly by radical feminists who find the root of sex inequality in sexual exploitation of women and argue also against prostitution and pornography on these grounds. They deny that women choose these occupations with their ‘free consent’. This argument opposes bar dancing as being degrading to women not for reasons of protection of public morality, but due to concern for equality of women.

Practical offshoots: Allowing dance bars to flourish may enhance the occurrence of other undesirable activities or hinder implementation of other laws. For example, dance bars are seen as hubs of prostitution and human trafficking. They increase the vulnerability of minor girls and women to sexual exploitation. They may also lead to increased alcohol addiction and related crimes. These practical concerns call for regulation or banning of dance bars.

Right to work and livelihood: All persons have the right to work which includes women’s right to dance in bars. Banning bar dancing not only took away a form of employment, but also forced many bar dancers to take up prostitution to sustain themselves and their families. The ban also forced many establishments to shut down altogether, affecting the livelihood of other workers employed there.

Autonomy: Autonomy feminists seek respect for the agency or choice of women in entering professions such as bar dance, sex work or pornography. They reject the view that women do not take up these activities with their free consent. It is paternalistic to label what is the free choice of a woman as force or exploitation.

Free expression: Dance is a form of expression and prohibition on dance performances in certain establishments is an excessive restriction on the freedom of speech and expression of bar dancers.

Elitism: Selective ban on dances of certain types or in establishments most frequented by people belonging to certain classes or having lesser incomes is based on elitist assumptions about their morality. It is assumed that similar dance performances in establishments like five star hotels do not lead to illegal or immoral activities. It may also imply greater respect for the autonomy of women dancers of a particular class while viewing other women dancers as victims of exploitation. Such bans may stem from beliefs regarding the need to regulate the conduct of certain classes of people. Based on the position on the wider debate on bar dance, this argument may advocate either across-the-board increase or across-the-board decrease in the regulation of dance bars.

This is not an exhaustive set of views on the issue of bar dancing, but I have tried to cover a wide ground. I hope this puts the debate in a wider perspective and helps us avoid conflating the different arguments when responding to the debate.

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Bestseller III: Update on Bestseller spewing anti-Muslim Propaganda

4 Mar

I had written a couple of posts (Bestseller I and Bestseller II) on a High Court judgement banning a book spewing anti-muslim propaganda.  In today’s Indian Express, Pratap Bhanu Mehta discusses the judgement in a larger piece on religious freedom and freedom of expression:

“…courts have been unduly squeamish about protecting free expression. This squeamishness can be seen in a deeply confused recent high court judgment: R.V. Bhasin vs state of Maharashtra. While the judgment, based on a plausible reading precedent, banned a book, Islam: A Concept of Political World Invasion, the normative and methodological claims in the judgment tell you how precarious free speech is. While the court makes expansive rhetorical claims on behalf of free speech, it equally makes expansive jurisprudential claims on restricting it. So under Section 153 of the IPC for example, it is “no defence that the writing contains a truthful account of past events or is supported by good authority.” No wonder even works of scholarship can be banned. In terms of incitement to violence it reiterates a rejection of the “clear and present danger test”; even a remote possibility is sufficient to invite a ban. Third, it does what a court should try and avoid. It directly engages in an interpretive battle with the petitioner over certain ayats of the Quran, trying to produce an “authorised” interpretation. This is disturbing because it frames the issue of religion in a bizarre way. Indian courts keep going to great lengths to show that there can never be anything offensive or bizarre in a religious text (and come up with claims like no religion can even preach violence, all religions are progressive if not the same and so forth). In short, courts confirm an ideology of respect for religion that emboldens those who claim they are offended. The particular book in question has some insulting stuff in it. But the court casts the issue in an unhelpful way. It says criticism of any religion is permitted so long as it is “academic”. Really? Lampooning and heaping insult are as much weapons of progress as anything. Imagine the poor philosophes of the Enlightenment achieving progress through “academic” criticism. While the court is right in its concern for hate speech, it has given too much leeway to those who take offence.

P. Ananda Charlu, as early as 1886, had prophesied how mischievous Section 153 of the IPC would prove to be. He described it as “a dangerous piece of legislation by necessitating the government to appear to side with one party against the other. In my humble judgment it will only accentuate the evil which it is meant to remove. Far from healing the differences which still linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth.” Both prophecies, that clauses on offence will induce rather than diminish competitive communal politics, and create a culture of mischief, have turned out to be true….”

Bestseller II: How scholarly are our courts?

12 Jan

Yesterday I posted a piece on a judgement of the Bombay High Court banning a book.  I had mentioned the facts of the book and the main points raised by the author of the book.  Today, I am quoting the main points of the court’s judgement.  After that I argue that banning books on sensitive issues does not necessarily maintain or promote harmony in society.  It might in fact, curb opportunities for dialogue in society.

The judgement: The High Court upheld the ban on the book.  There were many procedural and substantive grounds given.  I am summarising only the substantive points:

The Constitution allows the state to frame laws to restrict our freedom of speech and expression in the “interest of public order”, and not just “maintenance of public order”.   Interest has a broader meaning than maintenance.

For a Notification banning books to be valid, the government’s opinion and reasons should be clearly mentioned in the notification.  In this case, they were clearly expressed.

An author has a right to put forth a perspective that a particular religion is not secular.  However, if a book reeks of hatred for a particular community…..one must pause and consider whether it is in the interest of general public to allow its circulation.”

According to us, the lurid details allegedly of Mohammad Paigambar’s life, the authenticity of which may be challenged by some, could have been avoided by

the author…..It is not possible for us to conclude that they are in the nature of historical research. We feel that the attempt is to show Mohammad Paigambar in poor light to hurt Muslim sentiments.”

Thus, Mohammad Paigambar is designedly painted as a debauched person and anything which can be said in his favour is discounted. “

We have no doubt that the author must be allowed to criticize Islam….But, here the criticism is not academic. The author has gone on to pass insulting comments on Muslims with particular reference to Indian Muslims.”

My argument: These points were made somewhere in between nearly 100-pages of a scholarly ‘exposition’ by the court.  The court examined a number of extracts quoted from the book, and referred to other books it considered scholarly and definitive, and tried to examine the true nature of the words and phrases of Muslim religious texts which had allegedly been wrongly represented.

I would like to point out some features of the government action and the court’s judgement:

1.  The government acted in 2007 when the book was first published in 2003.  It would be interesting to ponder over whether they would ban a book had it not sold 10,000 copies.

2. Banning the book may have done two things: (a) it may have sent out a signal that the government is ‘pseudo-secularist’, and over protective of minorities;, (b) it might also have stifled genuine debate by deciding for itself that the book is derogatory, insulting, and a threat to public order.

3. The length of the court’s ‘treatise’ on the authentic interpretation of the sources used and mis-quoted form nearly half the length of the 150-page judgement!!  The court, even though it said it has no business laying down authoritative interpretation of religious law, went ahead and did exactly that.

In any society, debate on religion and culture (as indeed so many other things) should take part in civil society.  That the government should be able to regulate matters inciting violence and hatred is granted, but does not this particular form of regulation i.e. banning a book, also stifle debate likely to happen in civil society when controversial arguments are made?

Consider an alternative scenario: The government does not have the power to ban a book outright.  it can however issue an ‘advisory’ stating that a particular book is factually incorrect/ provocative/ misrepresents historical facts, and so on.  If such a book does subsequently lead to a direct role in violence or public disorder, the government can ask the courts to ban it.

In such a case, if the government issues an advisory stating its reasons for doing so, information about the book and its contents will be given wider publicity.  Wider publicity will also in turn attract greater public scrutiny, greater criticism, greater debate, and if the material is truly objectionable, even a case for defamation.

Greater public scrutiny, in my opinion would also help different sections of society voice their opinions more often, and may also help in the expression of pent-up voices that are otherwise expressed with destructive intent.

In the occasional situation that a particular book etc. is taken to court, the court may be in a position to resolve a dispute between two people from different backgrounds in society.  In such a case, its 100-page ramblings might settle a question of authenticity of cultural and religious texts in a manner that gives closure to at least one individual in society.

In the present circumstances, the court usually has to decide on the very legitimacy of the government’s action of banning a book.  It might appease a community, but still leaves individuals simmering.

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