SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

In Thailand, places of entertainment that include performances related to erotic expression
are regulated under the Act on Entertainment Places, B.E. 2509 (1966). The Act does not
allow prostitution but allows “service partners” and “bath service providers.” It also
distinguishes between those types of employees, who are required to wear red circular disks
with their numbers, and non-sexual service staff, who are required to wear blue circular disks
with their numbers. Employees of establishments regulated by the Entertainment Act are
required to be at least 18 years old, and customers are required to be at least 20 years old.
In India, attempts in one of the States to shut down dance bars have resulted in an ongoing
legal battle that is currently in the Supreme Court. The Government of the State of
Maharashtra in 2005 amended the Bombay Police Act to criminalise dance and other
performances in eating houses, permit rooms or beer bars. The constitutionality of these
amendments was challenged in the Bombay High Court by a variety of petitioners including
women’s groups and the bar dancers’ union. In Indian Hotel and Restaurants Association and
another v. State of Maharashtra and others, 786 these petitioners challenged the constitutional
validity of the amendments to the Bombay Police Act on various grounds. The law prohibited
holding of a performance of dance, of any kind or type, in any eating house, permit room or
beer bar, which was challenged as ultra vires the fundamental rights to freedom of speech and
expression and to carry on an occupation or profession; it also stipulated that this restriction
would not apply to holding of a dance performance in a theatre, cinema hall or club, where
entry is restricted to its members only, or to a three-starred or above hotel, which was
challenged as ultra vires the constitutional guarantee of equality. The preamble to the
amending Act stated that the law was being introduced because the government found that
places which were given permits to allow dance performance for “public amusement” were
“permitting performance of dances in an indecent, obscene or vulgar manner”. Further the
law was justified because the government found “that such performance of dances in eating
houses, permit rooms or beer bars are derogatory to the dignity of women and are likely to
deprave, corrupt or injure the public morality or morals.”
On the ground of freedom and speech and expression the court dismissed the petitioner’s case
saying that the purpose of the dance was not to manifest and expression but to carry on an
occupation – if anything, therefore, it would be the violation of the right to carry on an
occupation that should be tested. It stated,
“…dance performed by the dancer is not to express views held by the dancer or
express their thoughts through the medium of dancing. What the dancer does by
dancing is as an occupation or profession. In other words dance performed by the
bar dancer would not fall within the expression speech and expression as the
dancers activities are mainly to earn their livelihood by engaging in a trade or
occupation. We are, therefore, of the opinion that the prohibition and/or
restriction imposed does not directly interfere with the freedom of speech and
expression and consequently there is no direct abridgement of the right of speech,
but it incidentally interferes with such right and consequently there is no
interference with [it].”
However, it was on the issue of discrimination that the court found the legislation to have
failed the constitutional test. It asked whether if the object sought to be achieved was to
786 Writ Petition No. 2450 of 2005, [Bombay High Court]
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