In a detailed judgment in July 2013 (reported as State of Maharashtra v Indian Hotel and Restaurants Association), the Indian Supreme Court affirmed the High Court’s decision. It pursued two lines of reasoning. First, it was impermissible for the state to distinguish between posh hotels and other establishments seeking licenses for dance performances. In the Court’s view, such a distinction was unsupported by empirical evidence and smacked of elitism. Second, the existing legislation had proven to be counter-productive, resulting in the unemployment of over 75,000 women, many of whom were forced by circumstances to engage in prostitution. The Indian Supreme Court noted that the constitutionally appropriate redress would be to take measures to ensure the safety, and improve the working conditions, of the dancers.
In spite of the Indian Supreme Court’s judgment being binding with immediate effect, the state government failed to implement it and almost instantly began exploring legal options to override the judgment. The Indian Supreme Court even issued contempt notices to the state government and relevant government departments seeking explanations for the disregard of its judgment. Last month, the state legislature passed a bill confirming the solution floated by the government – imposing a blanket ban on dance performances in all bars, whether in the dark alleyways of Mumbai or the exclusive hotels frequented by the city’s elite.
Some news reports seem to suggest that this was a devious, yet ingenious, response that exploited a loophole in the Indian Supreme Court’s judgment. However, the response fails to address the issues concerning the loss of livelihood and large-scale unemployment that were raised in the Court’s judgment. The state legislation is almost certain to be challenged, and it is unlikely that it will survive judicial review given that it fails to address a significant aspect of the Supreme Court’s decision. As it stands, the only way in which the judgment may be definitively overcome is through constitutional amendment by a two-thirds majority vote (either by directly amending the relevant constitutional provisions or by inserting the statute into the Constitution’s black hole, the Ninth Schedule, which is subjected only to limited review by courts). These options are highly unlikely, not least because the amendment would need to be enacted by the Union Parliament, which is controlled by a rival political alliance to the one with a majority in the Maharashtra state legislature.
From the perspective of comparative constitutional law scholarship, these developments are noteworthy in at least two respects. They indicate that the familiar notion of ‘dialogue’ between legislatures and courts is not distinctive to systems of weak-form judicial review. As Stephen Gardbaum argues, insofar as judgments can be overridden by ordinary legislation, there is almost no ‘non-dialogic judicial review’ under any constitutional system. Even if the legislative option that is currently on the table fails to survive judicial scrutiny, it is not inconceivable that we will see a second legislative sequel seeking to adjust the law in accordance with the Indian Supreme Court’s subsequent decision.
A further point to note is that we should be cautious in drawing hasty conclusions about the difference between a power to strike down legislation, which is expected to take immediate effect, and mechanisms like the declaration of incompatibility (under section 4 of the UK Human Rights Act), which have no automatic effect on legal rights. Just as British governments have sometimes strategically delayed compliance with declarations of incompatibility, the Maharashtra state government has managed to delay compliance with a judgment striking down primary legislation. The delay in this case may be substantial, since the structural failings and the heavy caseload of the Indian Supreme Court (see commentary by Tarunabh Khaitan and Nick Robinson) render it unlikely that the second exercise of judicial review will conclude swiftly.
The exercise of the power to strike down legislation is different from legislative repeal – like any other judicial order, it leans heavily upon executive compliance. The vulnerability of the strike-down power is particularly relevant where compliance with the judgment striking down legislation requires some explicitly positive governmental action – in this case, issuing performance licenses to establishments that were previously disqualified by virtue of the statutory provisions. The burden of inertia in cases like these is not dissimilar to that which exists after a declaration of incompatibility is made – the only difference being that after section 4 is invoked, the executive is not, at least as a matter of domestic obligation, required to comply with the judgment and subjected to sanctions for failing to do so (see R (Chester) v Secretary of State).
The second round of the constitutional narrative has only just begun, and it waits to be seen how many legislative and judicial sequels will follow.
Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and India Correspondent for the UKCLA Blog.
Suggested citation: C. Chandrachud, ‘Dance Bars, Dialogue, and the Indian Supreme Court’ UK Const. L. Blog (13th July 2014) (available at http://ukconstitutionallaw.org)