TEAM CODE: P10

1ST MOCK MEMORIAL MOOT COURT COMPETITION

2021

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF
WRIT PETITION NO. ___/2018

(UNDER ART 32 OF THE CONSTITUTION OF INDIA)

INDIAN HOTEL & RESTAURANT ASSOCIATION AND Ors. … APPELLANT

v.

STATE OF MAHARASHTRA AND Ors … RESPONDENT

MEMORANDUM ON BEHALF OF INDIAN HOTEL & RESTAURANT

ASSOCIATION AND Ors.
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TABLE OF CONTENTS

LIST OF ABBRIVIATIONS................................................................................................................3
INDEX OF AUTHORITIES................................................................................................................3
STATEMENT OF JURISDICTION....................................................................................................5
STATEMENT OF FACTS...................................................................................................................6
ISSUES RAISED..................................................................................................................................8
SUMMARY OF ARGUMENTS...........................................................................................................9
ARGUMENTS ADVANCED.............................................................................................................11
I. WHEATHER THE PROHIBITION OF ANY FORM COVERED UNDER SECTION –
33A OF THE MAHARASHTRA POLICE ACT 1951 LEADS TO UNEMPLOYMENT AND
INFRINGES THE RIGHT OF THE APPELLANT UNDER ARTICLE 19 (1) (G) OF THE
CONSTITUTION OF INDIA...........................................................................................................11
II. WHETHER AMENMENTS MADE IN THE MAHARASHTRA POLICE ACT OF
1951, VIOLATES THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14, 19(1)(A), AND 21
13
DANCE AS A MEDIUM OF EXPRESSION..............................................................................13
ARBITRARY RESTRICTION ON DANCE PERFORMANCES LEADING TO
INEQUALITY AND DISCRIMINATION..................................................................................14
III. WHETHER THE STRINGENT PROVISIONS LIKE INSTALLATION OF CCTV
CAMERAS ARE VIOLATING FUNDAMENTAL RIGHTS OF PETITIONER?.....................15
1.1 PROVISION IN THE ACT REGARDING CCTV CAMERS TO BE INSTALLED........15
1.2 VIOLATION OF FUNDAMENTAL RIGHT BY THIS PROVISION...............................15
1.3 RIGHT TO PRIVACY AS FUNDAMENTAL RIGHT........................................................15
PRAYER.........................................................................................................................................16

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LIST OF ABBRIVIATIONS

& And

Art Article

COI Constitution of India

FR Fundamental Rights

Govt. Government

Hon’ble Honorable

HC High Court

Ors. Others

UOI Union of India

AHRH India Hotel & Restaurant Association

v. Verses

INDEX OF AUTHORITIES

A. CASES:

S.n CASE TITLE

o
1. Maneka Gandhi v. UOI, (1978) 1 SCC 248

2. Usha Uthup v. State of West Bengal, AIR 1984 Cal 268

3. Gaurav Jain v. Union of India, (1997) 8 SCC 114: 1998 SCC (Cri) 25

4. Tata Press V. MTNL, (1995) 5 SCC 139

5. Justice K.S. Puttaswamy (Privacy-9J.) V Union of India, (2017), 10 Supreme Court

Cases 1: 2017 SCC OnLine SC 996

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B. STATUTES

S.N STATUTES
O
1. The Constitution of India, 1950.

2. Bombay Police Act, 1951

3. Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and

Protection of Dignity of Women (Working therein) Act, 2016

4. Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms

and Protection of Dignity of Women (Working therein) Rules, 2016

D. ONLINE DATABASE

S.NO WEBSITES
1. www.scconline.com

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STATEMENT OF JURISDICTION

The appellant has approached the Hon’ble Supreme Court under Article 32 1 of the
Constitution of India. The appellant reserves the right that without prejudice to the powers
conferred on the Supreme Court by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers being exercised.

The present memorandum sets forth the facts, contentions and arguments in the present
case.

All of which is most respectfully submitted.

Counsels for Appellant

1
32. Remedies for enforcement of rights conferred by this Part.—
 (1)The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
 (2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition , quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.
 (3)Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of
the powers exercisable by the Supreme Court under clause (2).
 (4)The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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STATEMENT OF FACTS

DATE CONTENTS

June 1, 2005 The state government of Maharashtra passed passes a bill in state
assembly to amend the Bombay Police Act of 1951, in order to act the
Section 33A and Section 33B which shall prohibit any type of dancing
in an eating house, permit room or beer bar’ but allowing similar dances
in establishment of three-star tier hotels and above

August 15,2005 The new Bombay Police (Amendment) Act, 2005 came into force
cancelling the license of all dance bars in the area which ultimately lead
to unemployment of approx. 70000 women workers and other affected
parties

A petition was filed in the High court of Mumbai by the India Hotel &
Restaurant Association (AHRH) along with host of NGOs and
Bhartiya Bar girls Union to held the new law void against the state of
Maharashtra.

The state government had sought to justify that the dance bars had
morphed into institutions that promoted complete objectification and
dehumanization of young women but upon reports it was found that the
ban resulted in increase of women trafficking and increasing cases of
prostitution

2006 The Mumbai High Court ruled against the State Government declaring
the new amendments made in the act void in nature and against the
public policy and ordered to uplift the then put bans on dance bars in the
area.

The State of Maharashtra being unsatisfied with the decision of Mumbai

High Court challenged the decision in Supreme Court of India arguing
that they took such steps to protect the dignity of women

16th July 2013 The Supreme Court in the matter upheld the judgement of High Court
stating dancing as fundamental right under Article 19 of the constitution
and also declaring the restrictions unreasonable. They asked
government to find alternatives to ensure safety and dignity instead
prohibiting dancing as whole.

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2016 Instead of complying with the order of Supreme Court in the matter, the
Maharashtra Government decided to bring new laws and rules relating
to the matter and thus passed the Prohibition of Obscene Dance in
Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women
(Working therein) Act, 2016 and Maharashtra Prohibition of Obscene
Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity
of Women (Working therein) Rules, 2016. The provisions for the act
this time being so stringent that no business can comply with all the
requirements of the act. the act provided regulations for various aspects
including timing, place, employment and others. Some of the conditions
put forward by the act included –

1. Fixed timings for public in bars, i.e. from 6.00 p.m. to 11.30
p.m.
2. Such a place must be 1 kilometre away from religious and
educational institutes.
3. CCTV’s must be installed at the entrance along with the places
of public entertainment.
4. No alcoholic drinks are to be served in bars with dance stages.
5. Working women, dancers, waitresses must be employed under a
written contract and monthly salary to be deposited in their bank
accounts.
6. No alcoholic drinks are to be served in bars with dance stages.

And many more unreasonable restrictions

The India Hotel & Restaurant Association along with the above listed NGO’s thus filed
a petition before the Supreme Court of India against the State of Maharashtra, being
the conditions presented in the law being unreasonable and against the fundamental
rights of the dancers working in those dance bars and related places.

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ISSUES RAISED

I. WHETHER THE PROHIBITION OF ANY KIND COATED UNDERNEATH

SECTION – 33A OF THE BOMBAY POLICE ACT 1951 INFRINGES THE
FUNDAMENTAL RIGHTSOF THE APPELLANT GUARANTEED UNDER
ARTICLE 19 (1) (G) OF THE CONSTITUTION OF INDIA

II. WHETHER AMENMENTS MADE IN THE MAHARASHTRA POLICE ACT

OF 1951, VIOLATES THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14,
19(1)(A), AND 21

III. WHETHER THE STRINGENT PROVISIONS LIKE INSTALLATION OF

CCTV CAMERAS ARE VIOLATING FUNDAMENTAL RIGHTS OF
PETITIONER?

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SUMMARY OF ARGUMENTS

I. WHEATHER THE PROHIBITION OF ANY FORM COVERED UNDER

SECTION – 33A OF THE MAHARASHTRA POLICE ACT 1951 LEADS TO
UNEMPLOYMENT AND INFRINGES THE RIGHT OF THE APPELLANT
UNDER ARTICLE 19 (1) (G) OF THE CONSTITUTION OF INDIA

1. The section 33 of the Maharashtra Police Act 1951 talks about the power to make rules for
regulations of traffic and for preservation in order in public place and part of the section
discusses licensing and controlling persons offering themselves for employment at quays etc.
However, the stringent orders end result of the prohibition of any form of dancing in the
establishments covered under Section 33-A leads to the only conclusion that these
establishments have to shut down. This has led to unemployment of over 75,000 women
workers. The impugned legislation has proved to be totally counter- productive and cannot be
sustained being ultra vires Article 19.
2. With the provisions of Section 33- A and 33-B inserted vide amendment act, 2005 to the
Bombay police Act, 1951, been struck down as unconstitutional being in contravention of
Article 14 and 19 of the constitution. However, even on the passing of certain orders by the
Supreme Court for issuing of the license and for processing other applications on the
principle of party until date not a single license has been issued to any of the
petitioners/members of the association. By reading the orders passed by the State rejecting
each and every application that has been made for grant of license even under the new Act
and Rules.

II. WHETHER AMENMENTS MADE IN THE MAHARASHTRA POLICE ACT

OF 1951, VIOLATES THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14,
19(1)(A), AND 21
III. 1. The right of a dancer to perform and exhibit his/her emotions through a
performance, is part of his/her fundamental right guaranteed under Article 19(1)(a) of
the Constitution. Dance is a medium for expressing and communicating ideas,
thoughts, messages, and feelings. Prohibiting dance performances hinders freedom of
speech and expression, leading to violation of Fundamental Rights.
IV. The Bombay Hight Court in its previous judgements of - Maneka Gandhi v. UOI and
Usha Uthup v. State of West Bengal cited that – Art form like dancing is a freedom
guaranteed as a fundamental right under Article 19(1)(a). Similarly, right to sing
‘disco’ songs has been upheld in a famous judgment of Uthup V. State of West
Bengal.

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V. In Tata Press V. MTNL, the court stated that, “Commercial speech’ cannot be denied
the protection of Article 19(1)(a) of the Constitution merely because the same are
issued by businessmen.
VI. 2. In the present case, the dance performances in Restaurants, Bar Rooms, Permit
Houses and other similar establishments were prohibited referring it to be obscene.
State, by placing unreasonable restrictions on the dance performances in Hotels,
Restaurants, Bar Rooms, Permit Houses and other similar establishments is hindering
personal autonomy and dignity of the dancers further leading to their unemployment.

III. WHETHER THE STRINGENT PROVISIONS LIKE INSTALLATION OF

CCTV CAMERAS ARE VIOLATING FUNDAMENTAL RIGHTS OF
PETITIONER?

The Supreme Court also stated that the state must carefully balance the individual privacy
and the legitimate aim, at any cost as fundamental rights cannot be given or taken away by
law, and all laws and acts must abide by the constitution.
Customers in such institutions are very much conscious for their privacy and identity to be
hidden and then a camera observing them will be disturbing for them. It is stated in the
judgment that the privacy is to be an integral component of Part III of the Indian Constitution,
which lays down the fundamental rights of the citizens. The constant monitoring will
undermine their privacy as well as privacy of the customers.

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ARGUMENTS ADVANCED

I. WHEATHER THE PROHIBITION OF ANY FORM COVERED UNDER

SECTION – 33A OF THE MAHARASHTRA POLICE ACT 1951 LEADS TO
UNEMPLOYMENT AND INFRINGES THE RIGHT OF THE APPELLANT
UNDER ARTICLE 19 (1) (G) OF THE CONSTITUTION OF INDIA

The section 332 of the Maharashtra Police Act 1951 states the authority to make provisions
for combating the issue of trafficking and for preserving the order in public place and part (a)
of the section states the provisions for granting license and regulating persons coming for
employment at these places. The strict directives resulting from the ban of any form of
dancing in facilities covered by Section 33-A, on the other hand, lead to the only conclusion
that these facilities must close. The fact that most, if not all, dance bar establishments have
been closed down since 2005 demonstrates this. Over 75,000 women have been laid off as a
result of this. It has been brought about by the need to support their families. The impugned
legislation has proved to be totally counter- productive and cannot be sustained being ultra
vires Article 19 (1) (g)3.
2
33. Power to make rules for regulations of traffic and for preservation of order in public place, etc. ,

(1) [ The commissioner with respect to any of the matters specified in this sub- section, the District Magistrate]
with respect to any of the said matters (except those falling under [clause (a), (b), (d), (db), (g), (e), (r), (t), and
(u) thereof), and the Superintendent of Police with respect to the matters falling under the clause aforementioned
read with clause (y) of this sub- section] in areas under their respective charges or any part thereof, may make,
alter or rescind rules or orders not inconsistent with this Act for-

(a) licensing and controlling persons offering themselves for employment at quays, wharves and landing
places, and outside Railway stations, for the carriage of passengers' baggages, and fixing and providing
for the enforcement of a scale of charges for the labour of such persons so employed;

3
19. Protection of certain rights regarding freedom of speech, etc.—
 (1)All citizens shall have the right—
o (a)to freedom of speech and expression;

o (b)to assemble peaceably and without arms;

o (c)to form associations or unions 4[or co-operative societies];

o (d)to move freely throughout the territory of India;

o (e)to reside and settle in any part of the territory of India; 5[and]

1[***]

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With the provisions of Section 33- A and 33-B4 inserted vide amendment act, 2005 to the
Bombay police Act, 1951, been struck down as unconstitutional being in contravention of
Article 145 and 19 (1) (g) of the constitution. After orders dated 2-3-2016 6 were passed by the
court modifying some of the said 26 conditions, the court granted one week’s time to the
respondents to comply with its directions. However, even on the passing of certain orders by
the Supreme Court for issuing of the license and for processing other applications on the
principle of party until date not a single license has been issued to any of the
petitioners/members of the association. All this amply shows that the only intention of the
State is to hinder the right of the people to profess their choice of employment. By reading
the orders passed by the State rejecting each and every application that has been made for
grant of license even under the new Act and Rules. This is the complete infringement of
rights under Article 19 (1) (g), to practice any profession, trade or occupation and thus
promoting unemployment.

o (g)to practise any profession, or to carry on any occupation, trade or business.

4
(b) regulating traffic of all kinds in streets and public places, and the use of streets and public places by persons
riding, driving, cycling, walking or leading or accompanying cattle, so as to prevent danger, obstruction or
inconvenience to the public;
5
The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.
6
Indian Hotel & Restaurants Assn. v. State of Maharashtra, (2017) 11 SCC 248 : (2017) 11 SC 252

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II. WHETHER AMENMENTS MADE IN THE MAHARASHTRA POLICE ACT OF
1951, VIOLATES THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14, 19(1)
(A), AND 21

DANCE AS A MEDIUM OF EXPRESSION

Dance is a vehicle for expressing and transmitting ideas, thoughts, emotions, and feelings, it
is humbly offered before the Hon'ble Supreme Court. Dance is, in fact, seen as a method of
self-expression. A dancer's fundamental freedom to perform and express his or her emotions
through a performance is guaranteed under Article 19(1)(a) of the Constitution. The Bombay
Hight Court in its previous judgements of - Maneka Gandhi v. UOI 7and Usha Uthup v. State
of West Bengal 8cited that – Art form like dancing is a freedom guaranteed as a fundamental
right under Article 19(1)(a).

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). In Tata Press V. MTNL9, the court stated that, “Commercial speech’
cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the
same are issued by businessmen. Similarly, right to sing ‘disco’ songs has been upheld in a
famous judgment of Uthup V. State of West Bengal10.

In India while we enjoy freedom of speech and expression, we cannot sit back and impose
restrictions on dance performances based on unproved claims. Prohibiting dance
performances hinders freedom of speech and expression, leading to violation of Fundamental
Rights.

7
(1978) 1 SCC 248
8
AIR 1984 Cal 268
9
(1995) 5 SCC 139
10
AIR 1984 Cal 268

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ARBITRARY RESTRICTION ON DANCE PERFORMANCES LEADING TO

INEQUALITY AND DISCRIMINATION

Dance performances at restaurants, bar rooms, permit houses, and other similar venues were
forbidden in this instance because they were deemed obscene. The underlying rationale for
such restrictions was explained as follows: such dance performances are aimed to provoke
the prurient interest of the audience, which is entirely nebulous and incapable of delivering
specific meaning. The term "obscene" can be defined in a variety of ways, depending on the
subjective opinions of those involved.

The State's assertions are based on the assumption that the wealthy and famous have higher
standards of decency and morality than their peers who have to contend with the
consequences of their actions. In Gaurav Jain v. Union of India11, it was rightly observed that
– “Prostitution in five-star hotels is a license given to the persons from higher echelons.”
These are mere misconceived notions which ought to be resurrected.

According to Article 21 of the Constitution of India, “No person shall be deprived of his life
or personal liberty except according to procedure established by law”. The petitioner's union
members have adopted professional dancing in dance bars totally out of their own free will
and want to earn a living. By imposing excessive limits on dance performances at hotels,
restaurants, bar rooms, permit houses, and other such facilities, the state is interfering with
the dancers' personal autonomy and dignity, resulting in their unemployment.

III. WHETHER THE STRINGENT PROVISIONS LIKE INSTALLATION OF CCTV

CAMERAS ARE VIOLATING FUNDAMENTAL RIGHTS OF PETITIONER?

11
(1997) 8 SCC 114 : 1998 SCC (Cri) 25

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1.1 PROVISION IN THE ACT REGARDING CCTV CAMERS TO BE INSTALLED.

The licensee shall ensure that adequate number of CCTV cameras which will live feed
continuously to police control room be installed to cover the entire premises which will
record the entire daily performance and the same will be monitored by a specially appointed
person on monitor/display. The daily recording of the performance of last 30 days would be
preserved and will be made available to any competent authority as and when required for
viewing.

1.2 VIOLATION OF FUNDAMENTAL RIGHT BY THIS PROVISION

The fact that a camera will always be there to monitor the girls dancing or serving will have a
chilling effect on institutions such as this. The constant monitoring will undermine their
privacy as well as privacy of the customers.
Customers in such institutions are very much conscious for their privacy and identity to be
hidden and then a camera observing them will be disturbing for them. Cameras on places
where these dances take place and the rooms where these Dancers get ready are highly
inappropriate.

1.3 RIGHT TO PRIVACY AS FUNDAMENTAL RIGHT

In Justice K.S. Puttaswamy (Privacy-9J.) V Union of India12 It is stated in the judgment that
the privacy is to be an integral component of Part III of the Indian Constitution, which lays
down the fundamental rights of the citizens. The Supreme Court also stated that the state
must carefully balance the individual privacy and the legitimate aim, at any cost as
fundamental rights cannot be given or taken away by law, and all laws and acts must abide by
the constitution.

PRAYER

12
(2017) 10 Supreme Court Cases 1: 2017 SCC OnLine SC 996

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In the lights of the facts stated, issues raised, arguments advanced and authorities cited, it is
most humbly and respectfully prayed before this Hon'ble Supreme Court that it may be
pleased to adjudge and declare:

1. That, the provisions introduced by the State of Maharashtra does violates the
Petitioner’s Fundamental Rights.
2. That, the new law implemented by the State of Maharashtra held ‘void’ and against the
public policy of the country
3. That, the guidelines and provisions mentioned in the act shall be held unreasonable
and being stringent in nature and quashed or relaxed by the State
4. That, the requirement for license shall either be made optional or abrogated, entirely.
5. That, the ban imposed by the Govt. of Maharashtra on dance bars be revokes to the
earliest

The Hon'ble Supreme Court may pass any other order, direction or relief which it may deem
fit in the light of justice, equity and good conscience. And for this act of kindness, the counsel
for the Petitioner shall as duty bound ever humbly pray.

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