By Vibha Vasuki
Dworkin’s theory of rights supposes on the general claim that within a proper understanding of the nature of law, rights are more fundamental than rules. He calls them trumps, which means that if there is any right which comes into conflict with any policy, the right must prevail.
Set against the banning of dance bars by the Maharashtra Government ten years ago, the Supreme Court in a recent landmark verdict has directed the police to issue licenses to the dance bars from 15 March, 2016. The fundamental right to livelihood enshrined under the Indian Constitution has been reaffirmed by the Apex Court and in what appears to be a morality versus livelihood debate, livelihood has won, albeit temporarily, before another amendment to the age old Bombay Police Act, 1951 tries to make its way to taking away for the second time, this right of at least 75,000 women.
I will not attempt to dignify the morality argument or speak of the “reasoning” behind the Maharashtra Government’s policy position. In a patriarchal sexual economy, where a woman stands socially subordinated in her daily functioning, the right of a woman to take decisions for herself, her body, her desires and sexuality are controlled and influenced by society. The law as it stands today is not enabling but only preventive. However, the judiciary has successfully combated the prohibitionist attitude of the government to enable women in enhancing their agency and providing them with a valid choice.
The reissuing of licenses to dance bars is a classic instance of the judiciary coming to the rescue of entertainment workers, suppressed for over a decade by the state machinery for political gains. A ban that was initiated by the then home minister RR Patil under the coalition government of Congress and the NCP, curtailed the right to livelihood of thousands of bar dancers in Mumbai and other parts of Maharashtra. The ban was imposed on two counts; one, a large number of youth was being lured by bar dance performances, falling prey to the addictions of alcohol and drugs, and spending money on dancers and two, the dance bars were also operating as pick-up points for prostitution, thus encouraging human trafficking.
The Indian Hotel and Restaurant Association and the Bar Girls’ Association challenged the ban in the Bombay High Court which struck down the ban citing the bar dancers’ fundamental right to work under Article 19(1)(g) of the Constitution. On appeal by the Maharashtragovernment, High Court’s decision was upheld.Subsequently, the Maharashtra government passed the fatedordinance banning the dance bars. The March 2nd ruling of the Supreme Court to reissue licences is significant and goes a long way in upholding the human rights adding to the feminist movement in this country
In the 10 years of the ban, where over 75,000 women were rendered without a job and regular sustenance, the Government did not even attempt to compensate or rehabilitate these women who had suffered not only deep financial losses but also an assault on their moral character.
“Everyone has a right to life and livelihood as enshrined under the constitution and this verdict has only reaffirmed that constitutional obligation. Dance bars have been enterprises which have acted as safety valves for these women who would otherwise take up sex work where the risk of STDs and physical violence is extremely high. The entry and exit period in bar dancing is about 6-7 years and in this time frame, women earn a dignified livelihood for not just themselves but also their dependents," said Dr Sundar Sundararaman, an HIV activist working with sexual minorities. He added that there in some communities of Rajasthan, where women who are traditionally sex workers, in order to escape from it are constrained to becoming bar dancers. "The Apex Court has taken into cognisance the difference between the entertainment and service industries, and how bar dancers fall under the entertainment industry. When we as a society have no objection to item numbers in films, why are we opposed to bar girls dancing to the same tune?” he added.
While addressing the fear of increased prostitution, it is also important to recognise multiple layers of discrimination that women are subject to. The concept of inter-sectionality is one that is often ignored while looking at laws that are prohibitionist and not enabling in stature.
In May 2011, India ratified the protocol to the United Nations Convention against Transnational Organized Crime (“UNTOC”), which works to prevent, suppress and punish trafficking against persons, especially women and children. Soon thereafter, the amendment to the IPC was brought in through the Criminal Law Amendment Act, 2013 (“CLA, 2013”). In many respects, the CLA, 2013 borrowed from the UNCTOC the definition of trafficking. The new Section 370 of the Indian Penal Code criminalises anyone who recruits, transports, harbours, transfers or receives a person using certain means (including threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement) for purposes of exploitation. This amendment in addition to The Immoral Traffic (Prevention) Act, 1956 only increases the stronghold of the Indian legislature on curbing trafficking and ensuring safety of bar dancers. Additionally, the Supreme Court has laid down guidelines that need to be complied with by bar owners which go a long way in protecting the bar dancers.
In the context of the existing legislature and the need for enhancing the agency of women by giving them a right to make their own choice, it is a welcome move from the judiciary in progressing towards empowerment of marginalised women. If nothing else, it has at the very least, been the reason for political parties in the state to unite.
The author is a lawyer working with The Commonwealth Human Rights Initiative in New Delhi. She works on policing and gender reforms. The author's views are not an endorsement of her organisation's.