JAMIA MILLIA ISLAMIA

Faculty of Law

INTERPRETATION OF STATUTES

“Power of Higher Courts to stay the operation of statutes: A

case study”

Submitted by: - Nayyar Qutub Chisti

&
Syed Kamran Haider Rizvi
B.A.LL.B. (Regular)
6TH SEM (40 & 54)

Submitted to: - Dr. Sohail Nazim

1
 TABLE OF CONTENT
SR TITLE Page No.
NO.
1. INTRODUCTION 4-5
2. GROUNDS ON WHICH THE COURTS GRANT STAY ON 5-6
STATUTES
3. CASE STUDIES 6
4. MARATHA RESERVATION CASE 6-12
5. FARM LAWS CASE 12-13
6. STATE OF MAHARSHTRA V. INDIAN HOTEL AND 13-18
RESTAURANTS ASSOCIATION
7. CONCLUSION 18

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1.STATEMENT OF PROBLEM

This paper seeks to study the power of higher courts in respect of granting stay on the operation
of statutes. This paper seeks to study from where the courts derive the power to stay an act and
what are the ways in which the court grants the stay. This paper will look into the various
grounds on which the courts grant stay by conducting case studies.

2.RESEARCH QUESTIONS/ SCOPE OF THE RESEARCH

1- Do higher courts have the power to stay the operation of statute?

2- What are the grounds on which courts can grant a stay on operation of statutes?

3.HYPOTHESIS

The courts have the power to grant stay on the operation of statutes. Courts have the power of
judicial review and when a statute is challenged on the ground of unconstitutionality the courts
have a limited authority to grant a stay.

4.RESEARCH METHODOLOGY

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The research methodology used in this paper is doctrinal method. This paper looks into various
case laws decided by the courts and tries to test its hypothesis.

5.LITERATURE REVIEW
This paper basically had a look at the various case laws on the point. Some articles have been
read about the subject of Judicial Review.

6.CHAPTERIZATION
For the sake of convenience this paper is divided into chapters. Chapter 1 gives the introduction
of area of study. Chapter 2 looks into various grounds on which the courts grant stay. Chapter 3
looks into case studies of various decided cases. Chapter 4 gives the conclusion to the paper.

3
 1.INTRODUCTION

The title of this paper is the power of higher courts (High Courts & Supreme Court) to stay the
operation/implementation of statutes. It is well settled that the constitutional courts of our country
have the power of judicial review which stem from the Articles 32 & 136 in case of Supreme
Court and Articles 226 & 227 in case of High Courts. Judicial review is also available under other
articles such as Article 13.
If we look at our legal framework it is found that the question of staying a legislative enactment
only comes when there is challenge to the constitutionality of the said enactment. Following which
courts can grant an interim stay on variety of factors. In Dhanraj v. Vikram Singh,1 the apex
court held that without there being any specific challenge to the constitutionality of the
provisions of a statute, courts cannot grant stay on the implementation of law.
Usually there are two grounds on which the constitutional validity of a legislative enactment can
be challenged and those are violation of the constitutional provisions and lack of legislative
competence.
Only after the constitutional validity of an enactment is challenged, there comes the option of
granting a stay on the implementation of statutes.
Historically, courts are reluctant to grant interim stays on legislation. As legislation emanates from
a democratically elected legislature, they’re presumed to be constitutionally valid 2. The courts
grant interim stays only when a legislation may be characterized as ‘manifestly unjust’, ‘glaringly
unconstitutional’, or would cause ‘irreparable injury’ and go against ‘public interest’. This is a
high standard to satisfy.
Following observation of the court bears significance to the area of the study.
“When considering an application for staying the operation of a piece of legislation, and that too
pertaining to economic reform or change, the courts must bear in mind that unless the provision
is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in
staying the applicability of the same. Merely because a statute comes up for examination and
some arguable point is raised, which persuades the courts to consider the controversy, the
legislative will should not normally be put under suspension pending such consideration. It is now
well settled that there is always a presumption in favor of the constitutional validity of any
legislation, unless the same is set aside after final hearing. The system of checks and balances has

1
2023 SCC OnLine SC 724
2
Bhavesh Parish v. Union of India 2000 (5) SCC 471

4
to be utilized in a balanced manner with the primary objective of accelerating economic growth
rather than suspending its growth by doubting its constitutional efficacy at the threshold itself.”3
This paper seeks to examine and analyze the various conditions/principles on which the courts
grant stay on a statute while the constitutional validity of a law is under challenge by the method
of case study. In this paper, authors will hold the case study of various cases of Supreme Court
and High Courts and to make an effort to chart out broad principles on the basis of which the
various laws have been stayed in the past.

2-GROUNDS ON WHICH THE COURTS GRANT STAY ON STATUTES

In an effort to categories the various grounds on which the higher courts of this country can grant
stay on the operation of statutes, authors will discuss the various grounds which are usually the
basis for the stays on legislations.
In regard to this, the observation of the court in Jaishri Laxmanrao Patil v. State of Maharashtra
is worth reproducing here. “The courts should be extremely loath to pass interim orders in matters
involving challenge to the constitutionality of a legislation. However, if the Court is convinced
that the statute is ex facie unconstitutional and the factors like balance of convenience,
irreparable injury and public interest are in favor of passing an interim order, the Court can
grant interim relief. There is always a presumption in favor of the constitutional validity of a
legislation. Unless the provision is manifestly unjust or glaringly unconstitutional, the courts do
show judicial restraint in staying the applicability of the same.”4
The various grounds for the stay on operation of the statutes are-

1- Prima Facie case- If the party seeking the stay can establish a prima facie case that the
statute is unconstitutional, illegal, or unjust, the court may grant a stay pending further
examination of the matter.

2- Irreparable Harm: When it is evident that allowing the statute to remain in operation
would cause irreparable harm or injury to the parties affected, the court may grant a stay
to prevent such harm.

3
ibid
4
2 SCC 785 : (2021) 1 SCC (L&S) 481 : 2020 SCC OnLine SC 727 at page 794
5
 3- Public Interest: If allowing the statute to remain in operation would be against public
interest or public policy, the court may grant a stay to prevent any adverse consequences.

4- Balance of Convenience: The court may consider the balance of convenience and the
interests of justice in deciding whether to grant a stay. If it finds that staying the operation
of the statute would serve the interests of justice, it may do so.

5- Likelihood of Success on Merits: If there is a strong likelihood that the party

challenging the statute will succeed on the merits of the case, the court may grant a stay
to prevent any potential harm or injustice until the case is finally decided.

6- Article 142- The power of Supreme Court to do complete justice. The apex court can
also use this ground to stay the operation of a statute.

These are some of the grounds on which the court have granted stays in the past and which are the
usual grounds on which the stay is generally granted by the courts. While each case is unique and
it depends upon the facts and circumstances of each case whether the court will grant stay or not.
Usually, these grounds are intermixed and a case in which stay is granted on one ground involves
other grounds as well. It is very difficult to categorize on the basis of ground and each case has its
peculiar set of facts. Going forward in this assignment we will have a look at the detailed case
study of some cases in in which the court has granted stay.

3-CASE STUDIES

It will be more clearer along with the analysis of the various case studies where this paper will
seek to explain the basis of the stay granted by courts on statutes.

3.1-Maratha Reservation Case

In this Supreme Court has granted stay on the implementation of the Maharashtra State
Reservation (of Seats for Admission in Educational Institutions in the State and for
Appointments in the Public Services and Posts under the State) for Socially and Educationally
Backward Classes (SEBC) Act, 2018 on the ground of being prima facie unconstitutional. Let’s
look at the background history and brief facts of the case.

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Background of the case- (The High Court Judgement)

On July 9th 2014, the State of Maharashtra promulgated an ordinance granting 16% reservation
in education and public employment to the Maratha community. This followed decades of protests
for a demand for ‘Maratha Reservation’. On November 14th 2014, the Bombay High Court
issued an interim order staying the ordinance’s implementation. In its interim stay order the court
reached the conclusion of the ordinance being prima facie unconstitutional. The court’s
reasoning is explained in brief hereunder.
The court cited the law laid down by constitution bench of the Supreme Court in M. Nagaraj v.
Union of India5, and another Constitution Bench as recently as on 15 July 2014 in Rohtas
Bhankhar vs. Union of India6, the ceiling limit of 50%, the concept of creamy layer and the
compelling reasons, namely backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements without which the structure of
equality of opportunity in Article 16 would collapse. The court held that even if the State has
compelling reasons for providing reservations (backwardness of the concerned class, inadequacy
of representation of such class in public employment and overall administrative efficiency), the
State will have to see that its reservation provision does not lead to excessiveness so as to breach
the ceiling limit of 50%.

The court considered the determination of 2 questions to be determined prima facie in

consideration of the interim stay.
a) Whether 'Marathas' can be considered as backward classes eligible to the benefits of
reservations under Articles 15 and 16 of the Constitution of India?
(b) If yes, whether there exist any exceptional circumstances or extraordinary reasons to grant
reservations to the extent of 16% to the 'Marathas', thereby increasing existing percentage of
reservations from 52% to 68%.

The reasoning of the High Court-

In determination of first question the court cited the reports of Mandal Commission (1980) and
National Backward Classes Commission (2000) and State Backward Classes Commission (2008)
which have rejected the representation of Marathas as social and educational backward class.

5
(1985) 3 SCC 198
6
JT 1996 (8) SC 643
7
That in the context of 16% reservation for Marathas upon their classifications as Educationally
and Socially Backward Classes, the following position emerges:
(a) The second Backward Class Commission Report (Mandal Report) dated 31 December 1980,
whilst concluding that population of backward class constitute nearly 52%, chose to include
'Marathas' in the category of 'Forward Hindu Castes and Communities';
(b) The National Commission for Backward Classes, by its Report dated 25 February 2000 not
only specifically rejected the request for inclusion of 'Marathas' Caste/ Community in the Central
List of Backward Classes for Maharashtra, but gave a categorical finding that Maratha is a socially
advanced and prestigious community.
That the Maharashtra State Backward Class Commission (MSBCC), which is a statutory
commission constituted under the Maharashtra State Commission for Backward Classes Act, 2005
("2005 Act"), by its 22nd report dated 25 July 2008 has categorically rejected the demand for
inclusion of 'Marathas' as 'Other Backward Class' for the benefits of reservation policy [Bapat
Commission Report];

That Despite, repeated entreaties from the State Government, the MSBCC declined to reconsider
its position in the matter of reservations for Marathas. The final rejection in this regard is contained
in MSBCC letter dated 3 June 2013.
The court took into account several other relevant factors in determining backwardness such as
about 71.4% of the cooperative institutions in the State are under control of Maratha community
and about 75 to 90% of the land in the State is owned by Maratha community.
The Rane Committee Report basis which the State Government gave the reservation to Marathas
was considered as erroneous and hasty and which ignored relevant factors
Therefore, taking the totality of the circumstances into consideration, the court was of the prima
facie opinion that there was no case at all for classifying the Marathas as Socially and
Educationally Backward Classes by completely ignoring the Reports made by the National
Commission for Backward Classes and the Mandal Commission. The Justice Bapat Commission
had also taken the same view.

As to the second question the court was of the considered view that situations or circumstances to
be considered extraordinary so as to justify providing reservation in excess of 50% would be only
those cases where the concerned class could not advance socially and educationally because of
social oppression or exploitation or social discrimination or at least social segregation. And the
court in its examination didn’t find any such extraordinary situations or circumstances to justify
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reservation in excess of 50%.

The operative part of the judgment of the court in Shri. Sanjeet Shukla vs The State of
Maharashtra and 3 Ors7 is reproduced hereunder-

“In the aforesaid position, we are of the opinion that the impugned Ordinances and Resolution to
the extent they provide for 16% reservations for Marathas for the Maratha Community are at
least prima facie ultravires the Constitution of India, on both the grounds i.e. Maratha Community
cannot be classified as a backward community and also because the percentage of reservation
exceeds the ceiling limit of 50%, without there being any exceptional circumstances or extra
ordinary reasons to justify the same. Therefore, the impugned Ordinances and Resolution, to
the extent, they provide for 16% reservations for the Marathas are liable to be stayed pending
the hearing and final disposal of the petitions.”

AFTER EVENTS-

Thereafter, State of Maharashtra enacted the Socially and Educationally Backward Classes Act,
2014. This granted 16% reservation to educationally and socially backward classes, among whom
the Maratha community was counted. On April 7th 2016, the Bombay High Court stayed the
implementation of the Act due to its semblance to the ordinance.

On January 4th 2017, the Maharashtra state government issued a notification establishing the
Maharashtra State Backward Class Commission. The Commission, chaired by Justice Gaikwad,
recommended 12% and 13% reservation for Marathas in educational institutions and
appointments in public services, respectively.
Upon the Commission’s recommendations, Maharashtra passed the Socially and Educationally
Backward Classes Act, 2018 (SEBC Act, 2018) on November 29th 2018. The Act exceeds the
recommended quotas, granting 16% reservation for Marathas in Maharashtra’s state educational
institutions and appointments to public service. The constitutional validity of the Act was
challenged before the Bombay High Court by three lead petitions, along with several other writ
petitions.8

7
8
Jaishri Laxmanrao Patil v. Chief Minister of State of Maharashtra, 2018 SCC OnLine Bom 18205
9
On June 27th 2019, the Bombay High Court upheld the constitutional validity of the Act on the
ground-
1. That State governments have the power to increase reservation beyond the ceiling limit of
50% in extraordinary circumstances justified by quantifiable data.
2. That the Justice Gaikwad Commission report was based on scientific and quantifiable data
which adequately justified both including Marathas as a socially and educationally
backward class as well as the extra-ordinary condition of creating reservations beyond the
50% ceiling limit.
3. That the State Government did not encroach upon judicial power as it did not directly
overrule any court order. It merely removed the basis of the Court’s earlier order by
repealing the 2014 Ordinance and Act.
4. That the Act meets the test of reasonable classification under Article 14 of the Constitution
as it provides reservation for the newly identified class of Marathas, who have been
historically incorrectly denied affirmative action, without unjustly depriving the existing
Other Backward Classes.

THE APPEAL IN SUPREME COURT-

On July 12th 2019, the Supreme Court admitted an appeal against this judgement in Jaishri
Laxmanrao Patil v. State of Maharashtra9 and heard the case. As in this case, the issue of
Constitution (102nd Amendment) Act, 2018 the court deemed it fit to refer the case to a larger
bench as it required the determination of substantial questions of law as to the interpretation of
constitution.
The court while dealing with applications for interim orders held that there is no bar on the
jurisdiction of the referring bench to pass interim orders. The court observed that “courts should
be extremely loath to pass interim orders in matters involving challenge to the constitutionality of
a legislation. However, if the Court is convinced that the statute is ex facie unconstitutional and
the factors like balance of convenience, irreparable injury and public interest are in favour of
passing an interim order, the Court can grant interim relief. There is always a presumption in
favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or
glaringly unconstitutional, the courts do show judicial restraint in staying the applicability of the
same”,

9
(2021) 2 SCC 785
10
Court referred to M.R. Balaji v. State of Mysore10and observed that the article 16(4) should be
balanced against equality guaranteed under 16(1) and reservation should not exceed 50%. The
relaxation of the strict rule of 50% can be made in certain extraordinary situations. People living
in far flung and remote areas not being in the mainstream of national life should be treated in a
different way. In view of the conditions peculiar to them they are entitled to be given relaxation.
It was made clear that extreme caution has to be exercised and a special case made out for
relaxation of the rule of 50%. Applying the law laid down by this Court in Indra Sawhney, we are
of the prima facie opinion that the State of Maharashtra has not shown any extraordinary
situation for providing reservations to Marathas in excess of 50%. Maratha community which
comprises of 30% of the population in the State of Maharashtra cannot be compared to
marginalized sections of the society living in far flung and remote areas. The State has failed to
make out a special case for providing reservation in excess of 50%. Neither has any caution been
exercised by the State in doing so.
The court held that the social, educational and economic backwardness of a community, existence
of quantifiable data relating to inadequacy of representation of the community in public services
and deprivation of the benefits flowing from reservations to the community are not exceptional
circumstances for providing reservations in excess of 50%. We are of the prima facie opinion that
the High Court committed an error in treating the above factors (exclusion of Marathas from the
reservation resulted in extraordinary situation of Marathas being deprived of benefits of
reservation, social education and economic backwardness of Marathas and the inability of 85%
of population being accommodated within the ceiling of 50%) as circumstances which are
extraordinary, warranting relaxation of the strict rule of 50%. Admittedly, reservations provided
to the Maratha community were implemented in educational institutions for one academic year
only. Implementation of the Act for admissions in educational institutions and appointments to
public posts during the pendency of these appeals will cause irreparable loss to the candidates
belonging to the open category. It will be difficult to cancel the admissions made in the
educational institutions and appointments made to the public posts by implementing the
reservations as per the Act.
Thus, the court stayed the Maratha Reservation Act.

10
1963 AIR 649
11
The operative part of the judgement is-
“Admissions to educational institutions for the academic year 2020-2021 shall be made without
reference to the reservations provided in the Act. We make it clear that the admissions made to
postgraduate medical courses shall not be altered. Appointments to public services and posts
under the Government shall be made without implementing the reservation as
provided in the Act.”

3.2 FARM LAWS

The Union Government passed three laws namely- (1) Farmers' Produce Trade and Commerce
(Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and
(3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services
Act, 2020 (hereinafter referred to as the "Farm Laws") which affected the farmers all over the
country. Huge protests happened and there was a deadlock. The constitutionality of three farm
laws was challenged in the Supreme Court under Article 32 in the case of Rakesh Vaishnav v.
Union of India.11

The Attorney General opposed the stay on the implementation of farm laws citing the case of
Bhavesh D. Parish v. Union of India and contended that the Court should not stay the
implementation of the laws. He argued that none of the petitioners who have attacked the Farm
Laws have pointed out any single provision which is detrimental to the farmers and that the laws
enacted by Parliament cannot be stayed by this Court, especially when there is a presumption in
favour of the constitutionality of legislation.

The court pointed out that this Court cannot be said to be completely powerless to grant stay of
any executive action under a statutory enactment. Even very recently this Court passed an interim
order in Jaishri Laxmanrao Patil v. State of Maharashtra 12 directing that admissions to
educational institutions for the Academic Year 2020-2021 and appointments to public services
and posts under the Government shall be made without reference to the reservation provided under
the impugned legislation.

11
(2021) 1 SCC 590
12
Supra note 8
12
The court considering the larger public interest and with a view to resolve the deadlock between
the farmers and government passed this extraordinary stay order. While court created a difference
between stay on the laws and stay on any executive action under the laws, but the effect remains
the same.

The operative part of the judgement is-

“The implementation of the three Farm Laws: (1) Farmers' Produce Trade and Commerce
(Promotion and Facilitation) Act, 2020; (2) Essential Commodities (Amendment) Act, 2020; and
(3) Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services
Act, 2020, shall stand stayed until further orders.
As a consequence, the Minimum Support Price System in existence before the enactment of the
Farm Laws shall be maintained until further orders. In addition, the farmers' landholdings shall
be protected i.e. no farmer shall be dispossessed or deprived of his title as a result of any action
taken under the Farm Laws.”

This judgment is the example of court staying a law using its extraordinary power and this stay is
an example of extraordinary stay. Courts usually do not grant a stay without any strong reasons to
do so i.e. prima facie case, irreparable loss, public interest etc.

3.3- STATE OF MAHARSHTRA V. INDIAN HOTEL AND RESTAURANTS

ASSOCIATION

The case of Indian Hotel and Restaurant Association v. The State of Maharashtra13 had dealt
with the constitutional validity of the impugned legislation introduced by the Maharashtra
Government with the intent to curb obscene behavior and prostitution crimes at bars, hotels, and
other such public amusement establishments in the State. These statutes, however, had also
encroached upon several fundamental rights of the Petitioners who had met their livelihood within
this business. The Apex Court had critically examined the scenario and had given this progressive
judgement, protecting the interest of the public. Let’s see the background and facts of the case.
Background of the case:
In 2005, the Maharashtra State had amended the Maharashtra Police Act, 1951, inserting two
new sections therein whereby Section 33A had prohibited dancing performances at eating houses,

13
(2017) 11 SCC 248
13
permit rooms, beer bars, etc. while Section 33B had provided for an exception to this, permitting
such performances at three-star hotels or theatres and clubs with members-only entry. This move
had led to discrimination within the business and consequent unemployment; hence the
amendment had been challenged before Bombay High Court where these changes had gotten
annulled, and the Supreme Court had also supported this judgement in the repealing case of State
of Maharashtra v Indian Hotel and Restaurant Association. Due to loss of employment and
discrimination between three-star hotels and others, petitions were filed under Article 226 in
Bombay High Court challenging that these amendments violate the fundamental rights under
Article 14 (right to equality), Article 15 (gender discrimination), 19(1)(a) (freedom of speech and
expression), 19(1)(g) (right to practice any occupation) and Article 21(Right to life and personal
liberty). The Bombay High Court in its judgement held that these new amendments are
unconstitutional as there is an invasion of fundamental rights of the individual. But Maharashtra
government was not happy with the decision and the appeal was filed by the Maharashtra
government in Supreme Court. Maharashtra government argued that they took such steps to
protect the dignity of women. But Apex court affirmed the decision given by the Bombay High
Court. Supreme Court in this case even held this that Dancing is a fundamental right guaranteed
under Article 19(1)(a). SC urged the government if their sole purpose is the safety of women then
they should try to find alternatives to ensure the safety and dignity of women instead of prohibiting
dancing.
Thus, after this judgement Maharashtra government came up with Bombay Police (Second
Amendment) Act, 2014 along with new legislation- Maharashtra government also introduced
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.
After this, three petitions were filed and the main respondent in all petitions was the State of
Maharashtra. All petitions were heard together and disposed of by the single judgement by a bench
of two judges consisting Justice Ashok Bhushan and A.K, Sikri:
After the judgement of July 10, 2013, in case Maharashtra Government came up with the new
legislations which were based on the amended sections of the Bombay Police Act,1951. (Section
33A and Section 33B).
Maharashtra government’s new legislation contains the provisions which were very strict in
nature. Some of the provisions are mentioned below:

• Under this Act, to start any hotel, restaurant or any place where their dances have staged

14
 a person must obtain a license under this act while following all the terms and conditions
mentioned in this act.

• The license can be granted only after the satisfaction of the authorities regarding the work
conditions and provisions for safety for the women staff along with the people visiting the
place. (Besides this, owners have to take a license from other authorities too as earlier).

• The license can’t be granted under this act if license for discotheque or orchestra has been
granted by Maharashtra Police Act and vice versa.

• Harsh Criminal and civil consequences must be there if any person does such business
without license. On conviction, a person can be punished with imprisonment for a term
which may extend to five years or fine which may extend to rupees twenty-five lakhs, or
with both. But, if there is a case of a continuing offence, a further fine of rupees twenty-
five thousand for each day during which the offence continues.

• Owner or manager must not allow obscene dance performances or anything that is immoral
in nature in any place. If any person found committing such act must be punished with
imprisonment which may extend to three years or a fine which may extend to rupees ten
lakhs, or with both. And, in case of continuance of such offence convicted shall be further
charged with fine which may extend to rupees ten thousand for each day.

• No person is allowed to shower currency notes or coins on the dance floor or hand over
personally to the dancer. Misbehavior or indecency can’t be tolerated against any female
worker. If any person does so he shall be punished with imprisonment which may extend
to three months or with fine which may extend to twenty-five thousand rupees or both.

• There are many terms and conditions which are to be followed in both the scenarios, i.e.,
before and after the license is granted.

Some rules were also specified under the legislation, some of them are mentioned below:

• Such a place must be 1 kilometer away from religious and educational institutes .

• Fixed timings for public in bars, i.e. from 6.00 p.m. to 11.30 p.m.

• No alcoholic drinks are to be served in bars with dance stages.

• There should not be any alteration in the premises of such place without the consent of
15
 licensing authority.

• CCTV’s must be installed at the entrance along with the places of public entertainment.

• Working women, dancers, waitresses must be employed under a written contract and
monthly salary to be deposited in their bank accounts.

• While granting license it must ensure that person is possessing good character with no past
criminal conviction.

ISSUE:
Because of this legislation there was a complete ban of dance in beer bars of the state which
violates the fundamental rights under the articles 14, 15, 19 and 21 of Indian constitution. Stringent
conditions imposed by the government for obtaining the license. Then how one should be able to
enjoy his right under article 19(1)(g), i.e., freedom to practice any profession, occupation or trade.
And there was also a complete ban of alcoholic drinks in bars. Harsh punishment under this new
legislation although punishment related to obscene act is already mentioned in IPC, 1860. Isn’t it
a violation of article 14?
Installation of CCTVs in bars infringes an individual’s right to life and personal liberty guaranteed
under Article 21.

RELATED PROVISIONS:
Article 14: Equality before law— The State shall not deny to any person equality before the law
or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
• The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them.
• No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to.
• access to shops, public restaurants, hotels and palaces of public entertainment; or
• the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
• Nothing in this article shall prevent the State from making any special provision for
women and children

16
 • Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes
Article 19: Protection of certain rights regarding freedom of speech etc.
• All citizens shall have the right
• to freedom of speech and expression;
(g) to practice any profession, or to carry on any occupation, trade or business.
Article 21. Protection of life and personal liberty— No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Section 6(4): Notwithstanding anything contained in the Maharashtra Police Act, no license shall
be granted for Discotheque or Orchestra, in the place for which the license under this Act is
granted, nor a license shall be granted under this Act for the place for which a license for
Discotheque or Orchestra has been granted.
Section 8. prescribes criminal and civil consequences for using the place in contravention
of Section 3 i.e. without obtaining the licence. It is to the following effect:
• The owner or proprietor or manager or any person acting on his behalf, shall not allow
any obscene dance or exploit any working woman for any immoral purpose in any place
and the person committing such act shall, on conviction, be punished with
imprisonment for a term which may extend to three years or a fine which may extend
to rupees ten lakhs, or with both; and in case of continuing offence, further fine which
may extend to rupees ten thousand for each day during which the offence continues.
• No person shall throw or shower coins, currency notes or any article or anything which
can be monetized on the stage or hand over personally or through any means coins,
currency notes or any article or anything which can be monetized, to a dancer or
misbehave or indecently behave with the working women or touch her person, in any
place. Any person who commits such act or abets the commission of such acts shall, on
conviction, be punished with imprisonment for a term which may extend to six months
or a fine which may extend to rupees fifty thousand, or with both.

JUDGEMENT
The Hon’ble Supreme Court had prima facie approved the new State legislation but had also
added a few improvements therein to uphold the interests of everyone involved. It had
acknowledged the term ‘obscene dance’, mentioned in Section 2(8)(i) of the Prohibition Act and
IPC Section 292, and the punishment thereof had also been held to be distinct from IPC Section
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294; however, it had dissented from the perception of the State that dancing at such public
entertainment establishments had led to the corruption of morals or the facilitation in sex
trafficking crimes, opposite of which had actually been reflected in the studies conducted by
various organizations including the SNDT University, Mumbai. In that view, there cannot be an
absolute ban on dancing as instead of protecting vulnerable women, this action shall deprive them
of their livelihoods which is what may instead push them towards the depraved resources.
The Apex Court had referred to State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat14 to
reason that the standard of restriction ought to be in proportion such that any lesser alternative
shall prove to be inadequate to it. Thus, it had also set aside the complete prohibition on alcohol
and had relaxed the terms for obtaining the license of the said establishments. The Hon’ble Court
had acknowledged that freedom is not absolute and subject to reasonable restrictions, however,
those restrictions shall not be impossible to adhere to, or else it shall not be reasonable, thus
striking down the need for the establishment to be 1km away from the religious or educational
institution as these conditions had been restrictive to Article 19(1)(g). The Court had allowed the
curfew to stay and the cameras shall be installed at the entrance of the bars but not the inside. It
had further held that the practice of giving extra money to performers had been an age-old practice,
prevalent in many arenas like theatre, tamasha, circus, etc. aside from just dancing, hence the
dancers could be tipped by giving the money to the staff. It had declared that even though the
State Government had apparently enacted the provisions for the welfare and protection of
vulnerable women, there had been no empirical evidence to back up its perception and claims of
the dance performances being immoral and predatory, hence the Supreme Court had aptly
considered the entire spectrum and had given its judgement accordingly.

CONCLUSION
In this paper we had a look at the courts’ power to grant a stay on the statutes through case studies.
It became evident that unless a statute is challenged on the grounds of constitutional invalidity, it
is rare that the courts will grant a stay. Under the power of judicial review, the courts while
examining the constitutional validity of the enactment, the courts can grant a stay. While the usual
grounds to grant a stay, in the presence of presumption of constitutional validity of a statute, are
prima facie case, irreparable injury and public interest. The court can grant an extraordinary stay
as well as has been seen the case of farm laws. Usually, the grounds above mentioned are
intermixed and are present in a single case as we have seen in the Maratha Reservation Case.

14
Appeal (civil) 4937-4940 of 1998
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