Tag Archives: Supreme Court of india

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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The narrative of judicial appointments

4 Jul

This post first appeared as an article on Bar and Bench on July 2, 2013, and can be accessed at their website here

News reports have indicated the government’s plan to establish a judicial appointments commission (“JAC”) for the appointment of Supreme Court and High Court judges. If established, the body would not only mark a sharp change from the current appointment process, but also from the constitutionally mandated procedure for appointment. The system at present however, is also markedly different from what the Indian constitution mandates. It remains to be seen whether the proposed JAC leads to better outcomes.

The crucial aspect in measuring outcomes is however, the correct determination of the desiredoutcome. In order to assess this issue, certain other considerations need to be examined, which are explained in this paper. These are: (a) constitutional provisions, and the original process of appointment, (b) the present process of appointment and their historical development, (c) the views of different experts and commissions on the issue, and (d) the determination of the desired outcome, and whether the proposed JAC would lead to this desired outcome.

Constitutional provisions

Section 124(2) of the Constitution provides a fairly neat method of appointing judges to the Supreme Court. It states that the President (read the Executive) shall appoint a judge of the Supreme Court after consultation with such judges of the Supreme Court and High Courts as he may deem necessary. The Chief Justice of India (“CJI”) has to be mandatorily consulted regarding the appointment of every judge other than to the position of the CJI. Similarly, under Article 217(1), the President of India appoints judges to High Courts after consultation with the CJI, the Governor of the State, and the Chief Justice of the High Court (for the appointment of a judge other than as Chief Justice of that High Court).

The primary authority for the appointment of judges under the Constitution is thus the President, or the central executive (“Executive”). The Executive has to discharge this function in consultation with other constitutional functionaries. Notice however, that this consultation process is not mandatory (apart from with the CJI for Supreme Court judges, and the Chief Justices of the High Courts for High Court judges). The Constitution also does not state that the Executive has to abide by the opinion of other constitutional functionaries while appointing judges.

Over the years though, this position has been completely deviated from, for reasons many consider completely justified.

Present process and origin of process

The Indian Constitution, like many other constitutions, creates a separation of powers between different wings of the state i.e. Executive, Legislature, and Judiciary. However, all three wings remain accountable to each other in some form or the other. The central and state executives for example, are directly accountable to Parliament and state legislatures respectively. Similarly, while the judiciary is independent of the Legislature and the Executive in most aspects, the power of appointment vests with the Executive as explained above, and the power of removal rests with Parliament. This system is designed to enable the judiciary to remain accountable to the democratic process in some measure.

The present process of appointments arose out of a perceived need to remedy certain ills that became apparent with the constitutionally mandated procedure. Seervai’s Constitutional Law of India (4th Ed., Vol. 3) records that the day before CJI Venkataramaiah retired from the Supreme Court, he gave an interview stating:

…such judges are appointed, as are willing to be ‘influenced’ by lavish parties and whisky bottles…in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyer’s house or a foreign embassy…practically in all 22 High Courts, close relations of judges are thriving. There are allegations that certain judgements have been influenced though they have not been directly engaged in lawyers in such cases.

This extract encapsulates, in brief, the concerns regarding the improper behaviour and conduct of judges in the higher judiciary. Though a number of past judgements had interpreted the respective powers of constitutional functionaries regarding the transfer and re-appointment of judges, the case of Supreme Court Advocates-on-Record v. Union of India (“Judges Appointment case”) is responsible for moving towards the present system of appointment of judges. I summarise the main points laid down by the court below:

1.     The process of appointment of judges “is an integrated participatory consultative process”. All constitutional functionaries must perform this duty collectively to reach an agreed decision.

2.     The proposal for appointment of a judge must arise from the CJI (for appointment of a Supreme Court judge) and from the Chief Justice of a High Court (for a High Court judge).

3.     In the event of conflicting opinions, the opinion of the CJI has primacy. No appointment can be made without the concurrence of the CJI.

4.     A collegium system of appointment must be initiated.

In 1998, in the case In Re Presidential Reference: Under Article 143(1) of the Constitution of India (“2nd Judges Appointment Case”)the Supreme Court further evolved this doctrine and created a system wherein judges would be appointed by a collegium consisting of the four senior-most judges of the Supreme Court. Though the Executive would make the actual appointment, it would have no other role in the appointment of judges to the High Court or Supreme Court. As recently as January 2013, the Supreme Court rejected a plea to revisit the Judges Appointment Cases (read more here).

These two cases therefore departed considerably from the procedure enshrined in the Constitution. Many have argued that insulation of appointments from executive influence is necessary to promote judicial independence, but it is debatable whether this insulation has led to a qualitative betterment in the conduct of the judiciary as a whole, or the quality of judgements. Additionally, various administrative and structural issues have been highlighted. Over the years, political parties, experts and commissions have proposed a number of mechanisms for the appointment of judges. It may be worthwhile to consider them briefly below.

Alternative mechanisms

The table below encapsulates in brief the proposals of various bodies regarding the appointment of judges.

Report/Commission/Body Recommendations
Law Commission – 80thReport (1979) Appointment process in High Courts to be initiated by CJ of that High Court. Constitutional procedure to be followed in other aspects. The Chief Minister of the state is free to disagree with choice of the CJ. One-third of judges appointed should be from outside the state.Interestingly, the report mentioned the need for a “Judges Appointment Commission”, for eliminating the “sway of political or other extraneous considerations…”.
Law Commission – 121stReport (1987) Recommended the establishment of a National Judicial Service Commission. The CJI would be the Chairman, and there would be three senior-most judges of the Supreme Court, three senior-most CJs of the High Courts, the Minister for Law and Justice, the Attorney General of India, the outgoing CJI, and a legal academic in the Commission. Additionally, while deciding a vacancy in a particular High Court, the CJ of the High Court, the Chief Minister and Governor of that state must be co-opted into the deliberations of the Commission.
67th Constitutional Amendment Bill, 1990 Proposed the creation of a National Judicial Commission composed of serving judges headed by the CJI.
Law Commission – 214thReport (2008) Recommended restoration of the original constitutional procedure to be followed in wake of the Supreme Court’s decisions in the Judges Appointments cases.
National Advisory Council Paper titled “A National Judicial Commission: Judicial Appointments and Oversight Recommended creation of National Judicial Commission with the Vice-President as Chairperson, and the Prime Minister, Speaker of Lok Sabha, Law Minister, Leaders of Opposition from both Houses of Parliament, and the CJI as other members. The President would have the power to reject a candidate recommended by the NJC.

As may be noticed from the table above, all the reports above emphasize the need for a broad-based consultative framework for the appointment of judges. Significantly, all these reports have also been informed by practices in other countries, most of which allow for some sort of a consultative process between members of the judiciary, executive, legislature, and civil society. The process being proposed by the Central Government at present also aims to create a broad-based consultative process.

Proposed process

According to news reports (here and here), the proposed Judicial Appointments Commission will probably have the Prime Minister, the Leader of Opposition, the Law Minister, the CJI, four other senior judges of the Supreme Court, and a prominent jurist as members.  The process therefore seeks to give the executive and legislature a greater role in the appointment of judges than the collegium system.

The question however remains: what is the desired outcome? The proposed system seeks to increase democratic accountability in the process of appointments. This is thought to be necessary due to the widespread perception that judicial appointments remain non-transparent, that delays in appointments occur due to the current in-house process of appointment, leading to a huge backlog of pending cases, and finally, that democratic accountability is an end in itself.

But is democratic accountability an end in itself? Does democratic accountability also not seek to further other expectations we may have from the judiciary, such as the writing of better judgements, decrease in backlogs and an increase in access to courts? If yes, would these goals be served merely by the creation of a Judicial Appointments Commission? The point I am trying to make is whether the judiciary can be made more accountable, more accessible, and qualitatively better without tinkering with the present appointment process? Those in favour of changing the status quo would point out that the present system is a complete departure from the constitutionally prescribed procedure. The simplest response is that the process being contemplated would also require a constitutional amendment!

There is a great need to reform the present system of appointment, in order to make it more transparent, and to achieve other social and economic ends. However, we need to think through the available alternatives for meeting our goals, and ensure that the legislative measures we take actually help in the realization of those goals.

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