Jurisprudential Scrutiny on Restriction on Dancing Bars and Morality – India

 

INTRODUCTION:

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?

JURISPUDENTIAL SCRUTINY:

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:-

I. 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.

II. 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.

III. 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.

CONCLUSION:

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.

By

Sneha Abhiram

Email: snehamula-at-gmail.com