In this post the issue we will be dealing with is whether bar dancing is an exercise of the fundamental right to freedom of speech and expression under Article 19 (1)(a), or the fundamental right to trade and occupation under Article 19(1)(g), or both.
The Supreme Court recently in the case of State of Maharashtra v Indian Hotels and Restaurants Association held that the ban on bar dancers in eating houses, permit rooms and beer bars was unconstitutional. The law banning the activity was declared to be ultra vires the Constitution on primarily two grounds, namely violation of Article 14 and 19(1)(g). The case was a civil appeal from the decision of the Bombay High Court.
However, the Court refused to address arguments based on Article 19(1)(a) as the Bombay High Court’s adverse order on these points were not challenged by the respondents. The Bombay High Court held that bar dancing is a facet of Article 19(1)(g) and not 19(1)(a), thus any challenge of unconstitutionality on the basis on 19(1)(a) would not be relevant.
At the outset, is important to note that Article 19(1)(a) has gives a much stronger protection to the right than any of the other freedom rights guaranteed under Article 19(1).
The Bombay High Court cited previous judgments like Maneka Gandhi v UOI and Usha Uthup v State of West Bengal to state that dancing is a freedom guaranteed as a fundamental right under Article 19(1)(a). But applying the doctrine of pith and substance, the High Court held that since the primary purpose is commercial, bar dancing is a fundamental right under 19(1)(g) and not 19(1)(a). Strikingly, to illustrate, the Court said: “[a] Lecturer in a college disseminating information to students or teaching them may be using his freedom of speech and expression, yet what he is doing in a lecture room is practising a profession”.
One must note that the disputed amendment in the law in this case results in two things: one, prohibits bar owners from carrying on business associated with bar dancing, and two, prohibits the bar dancers from dancing in the said premises.
The Bombay High Court gave a twofold justification to hold that bar dancing cannot be protected under 19(1)(a). First, that the right of bar dancing only flows from the right of the bar owner to have a licence for dance performance. The Court clarified that the dancers are not prohibited from dancing elsewhere. Second, the Court applied the doctrine of pith and substance and the doctrine of incidental encroachment to hold that the “the prohibition and/or restriction imposed does not directly interfere with the freedom of speech and expression and consequently there is no direct abridgement of the right of speech, but it incidentally interferes with such right and consequently there is no interference with Article 19(1)(a) as it would not be attracted. We, therefore, have no hesitation in holding that in the instant case on the facts involved herein, the fundamental right affected is the right to carry on an occupation or profession guaranteed under Article 19(1)(g) and not the fundamental right of speech or expression under Article 19(1)(a)”.
In our opinion, while the first justification is logically sound, the second is not. Bar dancers can only practice their skill and vocation only if bars exist. Now whether bars get licence is an aspect of providing licences and the bar owners’ right is governed under 19(1)(g). Thus right of bar dancers cannot have an impact or effect on the licence of bar owners, which is independent of the bar dancers’ right.
The second justification, in our opinion must face tough scrutiny. The Court held that commercial exploitation means the right is primarily under 19(1)(g) and only incidentally under 19(1)(a) and thus does not get the protection of 19(1)(a). Fundamental rights are not exercised in watertight compartments within spaces exclusive of each other. In the instant case, the right to freedom of speech and expression is linked with the freedom of trade, and to exclude the application of one with respect to the other would be incorrect. The Apex Court has held in several cases that one’s fundamental rights can always be commercially exploited. Bar dancing is a creative skill, which can be learned and mastered. Since dancing is an aspect of 19(1)(a), it can be extrapolated to include bar dancing. Merely because it is commercially exploited is no ground to deny protection under 19(1)(a) and shift it entirely to 19(1)(g). For example, the Bombay HC itself cited the ratio in Tata Press v MTNL: “‘Commercial speech’ cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same are issued by businessmen.” Right to sing ‘disco’ songs has been upheld in a famous judgment of Usha Uthup v State of West Bengal.
The Court must appreciate that niche forms of art and dance, and bar dancing, which has unjustifiably been held to be vulgar and provocative by the society, needs a special recognition. It is a skill and an art which is learnt, practiced and mastered and must be given protection just like other forms of dancing under 19(1)(a). Calling it a form of dance for primarily only commercial exploitation is, in our opinion, erroneous.
In any case, the Court did not address the obvious question as to why it cannot be afforded protection under both 19(1)(a) and 19(1)(g), before proceeding on to apply the doctrine of pith and substance. In our opinion bar dancing per se has to be afforded protection under both 19(1)(a) and 19(1)(g). This has been recognized in previous cases like Tata Press and Usha Uthup. Similar to an art or painting, bar dancing is both an expression of talent, creativity and skill as well as a legitimate occupation.
This post has been authored by Sohini Chatterjee and Vasujith Ram, students at the West Bengal National University Juridical Sciences and members of the NUJS Constitutional Law Society.