SC: Handing over of notes to the dancers personally is not inappropriate.

Today, i.e. on 17th January 2019, when the question as to what extent can the State go in imposing ‘morality’ on its citizens ?, arose before the Hon’ble Supreme Court, it was observed by the Hon’ble Court that handing over of the notes to the dancers personally is not inappropriate and there cannot be a complete prohibition from serving alcoholic beverages where dance performances are staged. Also, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’.

It was observed by the Hon’ble Supreme Court that:

It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling, prostitution etc. (Para 77)

It is also to be noted that standards of morality in a society change with the passage of time. A particular activity, which was treated as immoral few decades ago may not be so now. Societal norms keep changing. (Para 77)

Social change is of two types: continuous or evolutionary and discontinuous or revolutionary. The most common form of change is continuous. This day-to-day incremental change is a subtle, but dynamic, factor in social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral. Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances. (Para 77)

However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise ‘social control’. (Para 77)

Insofar as dance performances are concerned, it is not res extra commercium. (Para 78)

Whatever money, any appreciation of any dance performance, has to be given, can be done without throwing or showering such coins etc (Para 93)

Further, State cannot impose a particular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand. Handing over of the notes to the dancers personally is not inappropriate. (Para 93)

There is no reason as to why the liquor cannot be served at such places. It seems that State is more influenced by moralistic overtones under wrong presumption that persons after consuming alcohol would misbehave with the dancers. If this is so, such a presumption would be equally applicable to bar rooms where the alcohol is served by women waitresses. There may be aberrations or sporadic incidents of this nature which can happen not only at the places where dance performances are staged but at other places including bar rooms and even main restaurants. Other measures have to be adopted to check such a nuance. There cannot be a complete prohibition from serving alcoholic beverages. (Para 101)

Copy of judgement: Judgement 17-Jan-2019

-Tushar Kaushik

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