The purpose of this research is to look at the issues related to restrictions on bar dancing and morality concerned therewith. Basically ones notions of ‘morality’ depends on the manner of ‘seeing’ through an issue, that is, how we ‘see’ things makes a profound difference in our sense of what constitutes moral behavior. Without a doubt, there are very different behaviors, guiding ethics that attach to these different ways of seeing. For all that I want to write about the restrictions on such issues on grounds of morality reminds me about the ban on Bombay’s dance bar girls. The same set of false premises implied in terms of reform, the same anxiety about immoral choice versus a moral, the same victimization of women who work for a living and the same stigmatization of a women’s profession ring loud clearly in Maharashtra. Though there are many rights provided and programmes conducted women still strive for the right to control their own destinies. Really, there is only one good way to talk about the dancing bars that we have got to talk about everything else that makes up our ideas of morality, and ask what we expect of ourselves in those other things too. Many of the moral values are simply neglected and the question why are our publicly debated notions of morality limited to few things mostly related to women and their behavioral conduct in the society and is that the full extent of our understanding of decency?
To begin with the morality, I would like to emphasis on the three main types of ethical theories which are correlated with the concept of morality. Firstly, ‘consequentiality’, which holds the rightness and wrongness of actions, can only be determined by the consequences of those actions. Then comes the ‘Utilitarianism’, which is the most common form of consequentialism; the tag line for this theory is “the greatest good for the greatest number.” Lastly, Deontological theories, which hold that people may never be used merely as a means, but as an end in themselves. The Virtue ethics, which holds that the most important moral question is not “What should I do?”, but rather “What kind of person should I be?”
Here in my article I would like to throw some light on the fact that ban on dancing bars on the grounds of immorality is not the correct way to handle affairs relating to moral values. As the moral standards and ethics differs from one individual to the other, society to society and generation to generation. Someone can’t simply impose them on the other. In the context of saving the interest of the community and in the name of providing individuals right, they in reality infringes individual’s liberty. Stopping anyone from practicising their profession unless it is illegal, is violative of the right of the bar girls to carry an occupation or profession under the Constitution of India. The restriction to full amounts to a total prohibition and consequently is violative of the fundamental rights to carry on an occupation or profession. This article further discusses on the views of different prominent jurists and also about what constitutes morally wrong or public morals. What comes under public nuisance and can the moral values of the majority be imposed on the minority?
Ethics are an individual’s collection of morals . Someone who is ethical or moral is someone who makes decisions based on what she or he feels is right. The least harm or no harm does to the greatest number of people will be considered as the right decision as accordingly by the people who has moral values. Morality allows us from inner consciousness in doing or agreeing according to us and even the society is benefited. It is a code of conduct held to be authoritative in matters of right and wrong created by ones individual conscience.
Women are empowered to think, dream and do whatever they aspire for and not dictated by society and the usual stair-types. Certain elements of society have taken it upon themselves to make sure that they lay down moral guidelines which even the Constitution of India does not touch upon. It is very difficult to specify what Indian culture comprises of as it is a combination of an excess of cultures from around the world. The existence of India can be recognized to its openness to accepting and incorporating foreign elements. Moral policing arises out of the narrow-mindedness prevalent in society. Once society decides to step down from its rigid stand on empty morality and teaches its men to respect women and not judge them by their clothes, prevalence of heinous crimes like rape will without a doubt come down. That will be the time when Indian culture touches its grade or gets its complete status. Moral policing is definitely affecting business and the impact is huge on the revenue. The customers today know what is good and what is bad as their socio-economic position is high. Morality is nothing but all about the perception. Describing morality in this way is not making a claim about what is objectively right or wrong, but only referring to what is considered right or wrong by people. In this respect, morality is not absolute, but relative and constitutes any set of behaviors that encourage human cooperation based on their ideology. Morality can also be seen as the collection of beliefs as to what constitutes a good life.
Wrongful acts affect the social moral values and ethical sensitivity of the members of the society but it is not very simple to distinguish between what is a rightful act and what is wrongful as the individuals perceptions of life may differ. Every individual cannot take the same thing in same sense. An act moral and right to one person can be considered to be immoral or wrongful by the other. The Indian state uses the logic of protecting individuals by suppressing individual liberty to make laws that go against personal freedom.
RESTRICTION ON DANCING BARS AND MORALITY:
Sen says, “Our decisions about the future need not be parasitic on the type of past we have experienced but what will make sense in contemporary India.”
Maharashtra government imposed a ban on bar dancing. They claimed bars have a corrupting influence on public morals. The logic given was that under the excuse of Dance bars the trade of prostitution too is conducted by some. The Maharashtra government passed a Bill in the Assembly on 21-07-2005 banning the dance Bar Trade. Dance Bars and those working there have been indirectly accused of promoting prostitution. But dance is a creative expression and we have been guaranteed freedom of expression by the constitution. These women danced to earn money. They have a right to choice of profession. Dancing is not illegal. Moreover they are not forcing people to see their performance. They cater to a place of willing audience. Their right to livelihood is jeopardized by the law. These bars are the source of income for those who choose their profession as bar dancing. Every individual cannot take the same thing in same sense. Though the majority of the members of society regards this act of dancing bars as immoral it will not be justified to ban the dancing bars or impose morals of the majority people on the others unless it is effecting the public morals and creating public nuisance.
There are many facts that were overlooked so as to shield public morals. The question arises as to what can be considered to be public morals and as the majority of people think that bar dancing is an immoral activity, should it be banned? The question whether it is justified to impose values of majority on everyone? Public morals refers to moral and ethical standards enforced in a society, by law or police work or social pressure, and applied to public life, to the content of the media, and to conduct in public places. Hence, thereby we can say that so as to impose ban on the dancing bars is not reasonable in regards to the fact that this act does not fall under public morals though the majority of people think it as an immoral activity as it is concerned with private lives and not conducted or done in public places and it is not justified to impose values of majority on everyone as moral values differ from person to person.
All civilized nations accept a person’s right to conduct his/her personal affairs independent outside any contravention. However we often see our personal conduct being judged on universal moral principles. This is what happened in Meerut. Police assaulted young couples for meeting in a public park. Actually they beat up couples present in the park in full media glare. They defended it in name of protecting the holiness of a public space. They claimed public display of affection even by mutual consent was immoral and thus punishable considering that to be western culture influence. What is western cultural influence? Is it a man meeting a woman in a public place? The moral police seem to think so. Thus they chose to make an event out of a common occurrence in Meerut.
Though India is a home of diverse cultural traditions, the cultural communities are not internally consistent and local customs differ. There is no homogeneous Indian culture. Each can yield different results. Thus those who talk of preserving Indian culture capitalize on a few of these and ignore others. Moral policing is a threat to individual liberty. It also threatens cultural diversity.
Cabaret dance where indecent and obscene act per se is involved, would not attract the provisions of section 294 of the IPC (obscene act in public place to the annoyance of others is punishable), without fulfillment of one of its essential ingredients- evidence pertaining to ‘annoyance to others’. While delivering the judgment, stated that “there was no annoyance caused to others as the audience had visited the hotel paying fees with a view to watch this dance. In the absence of a special law where cabaret shows are held on the floors of a hotel in which adults attend on payment, prosecution cannot contend that such cabaret shows come within purview of section 294 of the IPC.
As already noticed human conduct varies from place to place and from time to time, and from people to people. What may be a rule of good morality at one time may not be at another time. Where, in one of judgments of the Supreme Court it was stated that “there could possibly be no serious objection to the hotels and restaurants entertaining their customers with music and dance so long as it does not become an obscene performance on a performance in nudity”. In fact, ‘decency’ and ‘morality’ themselves are terms of wide and variable contents. On a sensitive issue like this the Court would not make a dogmatic approach, as the concept of ‘decency’ and ‘morality’ are not static, and are bound to change from place to place, from time to time, from people to people, and from age to age. It was also rightly said by the Professor Rawls “equality of right to securing generalized wants including basic liberties, opportunities, power and minimum means of substance and social and economic inequalities should be arranged so as to ensure maximum benefit to the community as a whole. By this it can be concluded that the preventing or imposing ban on the dancing bar will not be permissible as it is every individual’s liberty so as to work and choose their profession.
The girls dancing at bars does not create any nuisance and it is no where harming the public morality as it is done in private places. Rightly said by Mr. Manjit Singh Sethi, President of the Fight for Rights of Bar Owners Association – the move to organize the girls is a very good change. For once, the work of bar girls is being recognized, he feels. “There is nothing immoral about it, no obscenity. Our patrons are all adults and our girls sing and dance to Hindi film music. Do anyway allowing children to see Karishma Kapoor (Bollywood star) sing and dance on screen creates obscenity or against morality. These dancers have danced to a different tune to seek recognition, respect, dignity and their right to livelihood as entertainers.
Under Article 19(1) (g) a citizen has a fundamental right to practice any profession or to carry on any occupation, trade or business. However, such right is subject to such reasonable restrictions that may be imposed by the State under Clause (6) of Art. 19. Under Clause (6) the State has power either to completely prohibit or to permit with certain reasonable restrictions on certain professions, which are not in the interests of the general public. In a Constitution Bench of five learned Judges of the Apex Court explaining the phrase ”reasonable restrictions’’ held: The phrase ”reasonable restriction” in Art. 19(6) connote that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what are required in the interests of the public. The word “reasonable” implies intelligent care and deliberation that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19(1) (g) and the social control permitted by Cl. (6) of Art. 19, it must be held to be wanting in that quality. So there can be reasonable restrictions that can be imposed on dancing bars but cannot completely keep a ban on it, resulting in infringement of right guaranteed under Constitution in Article 19 (1) (g).
Neither the Act of singing, dancing in a hotel and restaurant premises where provisions have been made by way of licensing nor the rules empower the Commissioner of Police to completely prohibit conduct of singing, music and dance programmes, in the public places of amusement in the interest of general public. Playing of music and singing of songs or performance of dance would cause no harm to the general public nor it is injurious to health, safety and health of the general public and the same is not prohibited.
The August 20, 2005 rally in which thousands of bar dancers had participated received wide media publicity. The newspapers reported that there are about 75,000 bar girls. For the bar owners it was just a question of business losses but for the bar girls it was an issue of human dignity and right to livelihood. When the bars are raided, it is the girls who are arrested, but the owners are let off. At times, the girls are retained in the police station for the whole night and subjected to further indignities. But in the litigation, their concerns were not reflected. It is essential that they be heard and they become part of the negotiations with the State regarding the code of conduct to be followed during the raids. The two-judge division bench of the Bombay High Court, comprising Justice FI Rebello and Justice Roshan Dalvi, in a 260-page ruling, quashed the Maharashtra government’s law banning dance bars on grounds of discrimination under Article 14 of the Constitution of India. The court ruled that that the ban violated the fundamental rights and constitutional right to equality of bar dancers and bar owners.
JURIPRUDENTIAL SCRUTINY ON RESTRICTION ON DANCING BARS AND MORALITY
The main question arises here “Ought immorality, as such to be a crime?” Mill and Hart say that the answer is “No”; and said that it is not a legitimate function of the state to punish conduct simply on the grounds that it is against moral values of the majority. The ban on the dancing bars not only created disturbances in the city and also resulted in the revenue loss the government. There are people who will lose not only jobs but also homes if the bars close down. People who work as waiters, stewards, cleaners, cooks, guards and drivers for the bars were left with no job. Ban on dance bars to protect the morality of the youth may soon push out of work dance girls to trades that are more exploitative. As rightly agreed on the points of Hart and John Stuart Mill the contemporary liberal theorists such as Joel Feinberg, Thomas Nagel, and Ronald Dworkin have kept their views and stated that it is not a justifiable function of the state to punish conduct simply on the grounds that it is immoral.
The dancing bars cannot be considered as crime. It can be decriminalized on the grounds that every individual have:
• Right to choose any profession
• Privacy of morality
Devlin states that privacy should be respected. Law should only intervene when society won’t tolerate certain behavior. Law should be of a minimum standard not a maximum standard. Accordingly as stated by Devlin in his guidelines it is clear that law cannot completely ban dancing bars on the grounds of immorality but can enforce minimum standards, by which he means that law can impose minimum standards of restrictions on these acts so as to make it a tolerable behavior that can be accepted and respected by the other citizens. Devlin presents his views on public morality stating that society does have the right to pass judgments on matters of morals, and that the morals are therefore not always a matter of private judgment. Immorality is whatever the right minded person presumed to be immoral. Here the right minded person cannot be an individual. In determining the context of public morality, he states that the law is not looking for ‘true belief’ but for the ‘common belief’ and before a society can put a practice beyond the limits of tolerance there must be a deliberate judgment that the practice is injurious to society and the limits of tolerance differs and departure from moral standards varies from generation to generation and for this reason the law should be slow to intervene in the sphere of morality because what may not be tolerated in one generation may come to be tolerated in the next.
Hart notion is that we have a right to be protected against shock or offence to feelings by some public display. But we have no right to be protected from distress caused by knowing that certain things are done in private. A right ‘to be protected from the distress which is inseparable from the bare knowledge that others are acting in ways you think wrong, cannot be accepted that act to be immoral by anyone who recognizes individual liberty as a value. According to Harts an immoral act committed in private, there is no victim but only a transgressor of a moral rule, the view that of conceding punishment is still called for lacks a valid basis. The majority, being satisfied with the ways of mankind as they now are, cannot comprehend why those ways should not be good enough for everybody. Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for them.
Hart reiterated Mill’s “harm principle”, pointed out that societies survive changes in basic moral views. It is absurd to suppose that when such a change occurs, to say one society has disintegrated and been succeeded by another. Morals rely on individual conscience. The liberty of the individuals must be thus far limited; he must not make himself a nuisance to the other people. It is desirable, in short, that in things which do not primarily concern others, individually should assert itself. By this it can be stated that as bar dancing is limited to the individual’s liberty does not make itself a nuisance to the others. Bars cannot be banned and dancing can be continued according to Mills theory as it is primarily concerned about individual’s liberty and choice of profession indeed done in private place not causing harm to others .
Mill’s general principle states that- “There is a sphere of action in which society as distinguished from the individual has if any, only an indirect interest: comprehending all that portion of a person’s life and conduct which affects others, only with their free, voluntary and undeceived consent and participation. This, then, is the appropriate region of human liberty”. It comprises of:-
• Inward domain of consciousness, demanding liberty of conscience in the most comprehensive sense, liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological.
• Liberty of tastes and pursuits, of doing as we like, subject to such consequences as may follow, without impediment from our fellow creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong.
• Liberty of each individual follows the liberty, within the same limits of combination among individuals; freedom to unite for any purpose not involving harm to others.
In 1966 Professor Dworkin discussed the validity of the assumption made by Devlin that a society has a right to protect the institutions/organizations against the conduct that the majority of its members disapprove of it on the moral grounds.
As rightly pointed out by Mill “Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest. Dancing bars are organized with the license and they have the right to carry on the conduct of their business against the disapproval of majority members on the grounds of morality.
I do not find dancing bars offensive to the morals. The issue of prohibiting dance in dance bars is that it is dancing which arouses the physical lust amongst the customers present. This allegation is not very true but becomes derogatory only when it crosses the tolerance that is beyond the acceptability of the society. But the right to dance has been recognized as part of the fundamental right of speech and expression. This could be the discretion of a bar owner to have dance performance or by bar dancers themselves using their creative talent to carry on an occupation or profession. In other words we can consider it as using their skills to make a living.
Law should in larger sense be grounded on the permanent interests of man as a progressive being.’ Progress of an individual is of great importance to protect and promote liberty of action for all. States in general should acknowledge the importance of such liberty of action and should limit their law accordingly. Interference with liberty of action, especially by the use of power or coercion, required a special sort of justification, that it was needed to prevent harm to others. Hence, we can state that law cannot completely ban the dancing bars on the grounds that the actions of these individuals are considered to be wrong or immoral by the others in the society as it is an interference with the person’s liberty and livelihood. Law cannot take any unreasonable step on basis of morality because morality as earlier discussed, it differs from one society to another and generation to generation. One cannot simply impose the views of majority on the others. Restrictions can be imposed only to an extent that is creating harm to the society but there should not be any unreasonable decision which results in infringement of the fundamental rights and affects their livelihood. Something done in private is not regarded as public nuisance and cannot be taken as base for imposing a ban on their profession.
Dancing bars are no way harming others and it is only a comprehension of personal life and conduct which is confined to themselves and ones individual liberty. Considering this act as immoral will not be justified in the context that it affects the society and infringes the moral values of others because people indulge in these acts with their free, voluntary and undeceived consent which can be regarded as appropriate region of human liberty. As long as we do not attempt to deprive others of their rights and liberty or impede their efforts to obtain it can do an act that is pursuing our own good in our own way. Every individual can be the proper guardian of his own health, whether bodily, mentally or spiritually. So would like to conclude that bar dancers have all the rights to control their destiny.