STATE OF MAHARASHTRA Vs INDIAN HOTEL & RETAURANTS ASSN.
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR
Case number: C.A. No.-002705-002705 / 2006
Diary number: 11270 / 2006
Advocates: ASHA GOPALAN NAIR Vs
V. D. KHANNA
Page 1
- 1 - REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2705 OF 2006
State of Maharashtra & Anr. ...Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors. ...Respondents
WITH
CIVIL APPEAL NO.2704 OF 2006
State of Maharashtra & Ors. Etc. Etc. ..Appellants
VERSUS
Ramnath Vishnu Waringe Etc. Etc. ...Respondents
WITH
CIVIL APPEAL NO._5504_____ OF 2013 [Arising out of S.L.P. (C) No.14534 of 2006]
Ghar Hakka Jagruti Charitable Trust ...Appellant
VERSUS
State of Maharashtra & Ors. ...Respondents
J U D G M E N T
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SURINDER SINGH NIJJAR,J.
1. Leave granted in SLP (C) No.14534 of 2006.
2. These civil appeals seek to challenge common judgment
and final order dated 12th April, 2006 in Writ Petition
No.2450 of 2005, W.P. No.2052 of 2005, W.P.No.2338 of
2005 and W.P.No.2587 of 2005 passed by the High Court
of Judicature at Bombay, whereby Section 33A of the
Bombay Police Act, 1951 as inserted by the Bombay Police
(Amendment) Act, 2005 has been declared to be ultra
vires Articles 14 and 19(1)(g) of the Constitution of India.
Summary of Facts –
3. Brief facts leading to the filing of the aforesaid writ
petitions are –
The Bombay Police Act, 1951 (hereinafter ‘the Act’) was
enacted in the year 1951 with the object of consolidating and
amending the law relating to the regulation of the exercise of
powers and performance of the functions by the State
Government for maintenance of public order. Section 33 of
the Act authorises the State Government to frame rules
regulating places of public amusement and entertainment.
By virtue of Section 33 of the Act, the “Rules for Licensing
and Controlling Places of Public Amusement (other than
Page 3
- 3 - Cinemas) and Performances for Public Amusement including
Melas & Tamashas, 1960” (hereinafter ‘the Rules’) were
enacted to regulate and maintain discipline in places of
public amusement, melas etc.
4. In 1986, orchestra and dance in hotels was permitted to
be performed pursuant to the Rules and such institutions
functioned under terms and conditions laid down therein.
However, several cases relating to violation of the terms
and conditions of performance licences came to be
registered. It is claimed that 20,196 cases were registered
under Section 33(w), 110 and 117 of the Act from the year
2000 till 2005. Also, various cases of minor girls being
rescued from dance bars were reported during the said
period 2002-2005. The appellants have referred to the
case histories from the Government Special Rehabilitation
Centre for Girls (Special Home) of 10 girl children rescued
from such establishments under Immoral Traffic
(Prevention) Act, 1956 by Mumbai Police, which according
to the appellants, correctly depict the prevailing situation.
The Government of Maharashtra, Home Department,
on 10th December, 2002 passed resolution No. REH
012002/153/SE-5, noting therein :
Page 4
- 4 - "It has come to notice that prostitution rackets are being run through pick up points in hotel establishments in which dance programmes are being conducted (Dance Bars) and that dance forms being presented therein are horrid and obscene and that criminals are being sheltered in such hotels. Such undesirable practices going on in hotel establishments have an adverse effect on society."
It was resolved to form a committee to make
suggestions for amending the rules to deal with:
a) Remedial measures to check other undesirable practices going on in hotel establishments presenting dance programmes.
b) To prevent prostitution in hotel establishments c) Remedial measures to see that criminals are not
sheltered in hotel establishments; d) To frame a code specifying what type of dance
forms should be presented in hotel establishments.
e) Creating a roving squad to check undesirable practices in hotel establishments and take strict action against owner of those establishments.
5. Pursuant to the aforesaid resolution, the Committee
submitted its recommendations which were incorporated
and circulated to all the concerned authorities through the
letter of the Home Department No. REH 012002/153/SB-5
dated 16th July, 2004. In this letter, the suggested
regulations were summarized as follows:
Page 5
- 5 - a. There should be restrictions on the attire of the
dancers. b. Dancing area must have a railing 3 feet high
around it, and customer seats should be at least 5 feet away from the railing.
c. Dance floor to be of dimension of 10 x 12 ft so not more than 8 dancers can dance simultaneously.
d. Customer rewards for dancing are to be routed through management of the establishment and customers are banned from going near the dancers or “showering money”.
e. Names of dancers are to be registered with the establishment, a record kept of their employment, including details of identity/citizenship and place of residence.
6. This letter instructed all Judicial Magistrates and Police
Commissioners to implement these recommendations with
immediate effect.
7. On 6th August, 2004 the Chairperson of the Maharashtra
State Commission for Women wrote to the State
Government about the ongoing racketeering to lure girls
to work in dance bars and their consequent acts of
prostitution and immoral trafficking stating:
“Number of rackets indulging into physical and financial exploitation of girls working in dance bars by forcibly bringing them into this profession are found to be increasing alarmingly. In the metropolis
Page 6
- 6 - of Mumbai, the problems of the bar girls have acquired grave dimensions and have resulted even into death of many bar girls. These women are forcibly induced into prostitution leading to total destruction of their life.”….
Further
“Most of the girls working in Dance Bars of Maharashtra State do not hail from State of Maharashtra, but come from other States.” ….
“In the future this problem in all the probability would spoil our social health by acquiring increasingly grave dimensions, not confined only to Mumbai but extending to the National and even International levels.”
8. The letter went on to recommend a ban on such
establishments by stating:
“I therefore, request you that the system of issuing permits to the Bar Girls by various departments of Government should be stopped forthwith, thereby relieving the women from their physical, sexual and financial exploitation in the future.”
9. According to the appellant, the seriousness of the issues
involved is well documented of which the Home
Department was fully aware. The material available before
the Home Department was as under:
a. Copies of case history of 10 girl children rescued from dance bar(s) under Immoral Traffic (Prevention) Act, 1956.
b. Copies of complaints of victims’ families against illicit relations with bar dancers.
Page 7
- 7 - c. Copies of complaints of Social Organizations
against dance bars. d. Copies of FIRs of cases registered in relation to
dance bars. e. Summary of cases registered under the Immoral
Traffic (Prevention) Act, 1956, u/s 294 IPC, u/s 33(w) & 110 of Bombay Police Act, 1951 during the period 2000-2005 regarding dance bars.
10. Apart from this, a study of the socio-economic situation
and rehabilitation needs of the women in dance bars was
conducted by PRAYAS (a field action project of the Tata
Institute of Social Sciences) in 2005. This study pointed out
the relevant facts regarding exploitation of minor girls in
dance bars. The study also pointed out that there was
presence of the element of human trafficking in the entire
process; and that the environment of the dance bars was
found to have negative impact on the physical and mental
health of the minor girls. The study also pointed out that
the atmosphere in the dance bars increased the
vulnerability of the minor children to sexual exploitation. It
is also the case of the appellants that independent of
registration of offences under Bombay Police Act and PITA
Act as well as IPC, several complaints had been received
from various segments of society urging the State
Page 8
- 8 - Government to take steps for closure of the dance bars by
legislative action.
11. Taking into consideration the aforesaid material, the
members of the Maharashtra Legislative Assembly
expressed deep concern over the ill effects of dance bars
on youth and dignity of women. The Assembly further felt
that the existing measures were insufficient to tackle the
subject. Just at that time, a ‘Call Attention Motion’ was
tabled by Shri Vivek Patil in the State Legislative Assembly
on 30th March, 2005. A detailed reply was given by Shri
R.R. Patil, Hon’ble Dy. Chief Minster to the same, on 21st
July, 2005. Taking stock of the entire situation, the State
Government came to a tentative opinion that performance
of dances in eating houses, permit rooms or beer bars in
an indecent manner is derogatory to the dignity of women
and is likely to deprave, corrupt and/or injure public
morality. It was evident on the basis of the material
available to the Government that permit rooms or beer
bars licensed under the relevant rules, were indulging in
exploitation of women by permitting the performance of
dances in an indecent obscene or vulgar manner. The
Government, therefore, considered it expedient to prohibit
Page 9
- 9 - such dance performances in eating houses or permit
rooms or beer bars.
12. It was emphasised that even prior to the aforesaid
decision, the attention of the Government had been
invited to mushrooming growth of illegal dance bars and
their ill- effects on the society in general, including ruining
of some families. The dance bars were also used as
meeting points by criminals and pick up joints of girls
indulging in immoral activities. Young girls desirous of
earning easy money were being attracted to such dance
bars and getting involved in immoral activities. The
decision was, therefore, taken by the State Government to
prohibit performance of dance in eating houses or permit
rooms or beer bars by suitably amending the Bombay
Police Act, 1951.
13. The State Government took a conscious decision upon
consideration of the various factors to add Sections 33A
and 33B to the Bombay Police Act. The necessary
amendment was introduced in Maharashtra Legislative
Assembly on 14th July, 2005. The Bill was passed by the
Legislative Assembly on 21st July, 2005 and by the
Page 10
- 10 - Legislative Council on 23rd July, 2005. The amended Act
No. 35 of 2005, incorporating Sections 33A & 33B in the
Bombay Police Act, 1951, came into force after receiving
the assent of the Governor of the Maharashtra by
publishing in the Maharashtra Gazette on 14th August,
2005.
Writ Petitions before the High Court of Bombay
14. The Amendment to the Bombay Police Act of 1951,
introducing Sections 33A and 33B, was challenged as
being unconstitutional in several writ petitions before the
High Court of Bombay, which are tabulated as under:
Writ Petition Number Party WP 2450/2005 Indian Hotel and Restaurants Owners
Association, an Association of various hotel owners and bar owners and/or conductors of the same, who carry on business of running restaurants and bars in Mumbai.
WP 2052/2005 Bharatiya Bar Girls Union, a registered trade union claiming a membership of 5000, whose members work as bar girls in different parts of Maharashtra.
WP 2338/2005 The Parties in this petition are a group of six petitioners, who are women’s organizations working in the field of women’s development.
WP 2587/2005 The 1st petitioner is a trust registered under the Public Trust Act, working with sex workers in the Malvani area of Malad in Mumbai. The 2nd petitioner is the Ekta Self Group which consists of 10 bar dancers.
WP 1971/2005
Criminal WP
The petitioner is the Association of Dance Bar owners duly registered under the Trade Unions Act, and have as their members 344 dance bars.
WP 6930-6931/2005 Proprietors of two establishments who are affected by the amendments to the Police Act.
WP 5503-5504/2005 Proprietors of two establishments who are
Page 11
- 11 - affected by the amendments to the Police Act.
It was contended: • That the State of Maharashtra does not have the legislative
competence to enact the impugned law as 'morality' does not fall within the ambit of List II of Schedule 7 and that the impugned enactment falls in the concurrent list.
• That the impugned amendment was not reserved for the assent of the President and therefore is unconstitutional under Article 254 of the Constitution and also that the State does not have the power to implement international conventions and hence this enactment amounts to fraud on the Constitution.
• That the enactment results in interference with the independence of judiciary as no reasons are provided under S. 33A(2) of the Act for awarding lesser punishments.
• That the affidavit filed by Youraj Laxman Waghmare was not in compliance with Order 19 Rule 3 of the Civil Procedure Code as no verification clause was provided.
• That the establishment of the petitioners is a place of public entertainment and public amusement as defined under S. 2(10) and 2(9) respectively and not an "eating place" under S.2(5A) of the Bombay Prohibition Act, 1951
and hence the provisions do not bind the petitioners.
• That S. 33A and 33B are arbitrary under Article 14 as they provide for different standards of morality to institutions with similar activities and that the activities in S. 33A establishments are less obscene but nonetheless the
classification bears no nexus to the object of the Amendment.
• That S. 33A is violative of Article 15 on the basis of gender discrimination as the dancers are mainly women.
• That there is violation of Article 19 (1)(a) as dance is a form of
Page 12
- 12 - expression and that the impugned enactment is an unreasonable restriction and it is not by protected by Article 19(2).
• That there is an unreasonable restriction on right to freedom of profession as the State Government permitted and granted licenses for running such establishments being Res Commercium and that it deprives the bar owners of their right to carry on business and bar dancers the right to carry on their profession.
• That right to life under Article 21 is infringed as right to life includes right to livelihood and that the State has not provided for any rehabilitation.
15. The State of Maharashtra defended the challenge to
enactment as follows:
• That the impugned enactment is covered by the List II. Entries 1- Public Order, 2- Police, 6- Public Order, 8- Intoxicants, 33- Entertainment or Amusement, 64- Offences against laws.
• That the 'eating houses' are covered in the impugned enactment as they would fall in public entertainment places, as license is issued to an eating house, which enjoys an additional facility to serve liquor, wine and beer.
• That there is no violation of Article 19(1)(a) as the dance being conducted is not an expression but a profession where restrictions can be imposed.
• That there is no violation of Article 15 as the ban on obscene dance applies to men and women.
• That the several minor girls danced to get rewarded with cash by enticing customers, that led to a competition between performers leading to greatest rewards reserved for the greatest indignities which escalated prostitution
which lead to registration of several cases under Prevention of Immoral Trafficking Act and
under Bombay Police Act. That this led the legislatures to make an independent
Page 13
- 13 - classification of these establishments to safeguard the dignity of women, and public morality.
That there are only six exempted establishments and that obscene performances are not
permitted in such exempted establishments. Hence there is no violation of Article 14.
• That with regard to Article 19(I) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified.
• That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the "bar girls" in availing benefits of the various Government Schemes for employment and providing
alternative dignified vocations.
16. After considering the aforesaid arguments of both the
sides, the High Court has, inter alia, held that the type of dancing in both categories of establishments differs and while the difference is not capable of precise legislative
definition, it is sufficient to constitute intelligible differentia. However, the fact of different types of
dancing being performed bears no nexus with the object sought to be achieved, which, as
understood by the Bombay High Court, was limited to the exploitation of women dancers.
Consequently, the operation of the impugned enactment is discriminatory.
17. With these observations, the High Court declared that
Sections 33A and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14 and 19(1)(g) of the Constitution of India.
18. We have heard the learned counsel for the parties at
some length. But before we notice the submissions at this
stage it would be appropriate to reproduce the provisions
in Sections 33A and 33B of the Bombay Police Act, 1951.
Sections 33A and 33B of the Bombay Police Act:
Page 14
- 14 - 19. The provisions read as under:
“33A(1) Notwithstanding anything contained in this Act or the rules made by the Commissioner of Police or the District Magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005,-
(a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited;
(b) all performance licences, issued under the aforesaid rules by the Commissioner of Police or the District Magistrate or any other officer, as the case may be, being the Licensing Authority, to hold a dance performance, of any kind or type, in an eating house, performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled.
(2) Notwithstanding anything contained in Section 131, any person who holds or causes or permits to be held a dance performance of any kind or type, in an eating house, permit room or beer bar in contravention of Sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to rupees two lakhs: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand.
(3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under Sub-section (1), holds or causes to be held or permits to hold a dance performance of
Page 15
- 15 - any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence. (4) ……………… (5)……………….. (6) The offence punishable under this section shall be cognizable and non-bailable.
33B. Subject to the other provisions of this Act, or any other law for the time being in force, nothing in section 33A shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf.
Explanation.--For the purposes of this section, "sports club" or "gymkhana" means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force.”
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Statement of Objects and Reasons
20. The Statement of Objects and Reasons clause
appended to Bill No. LX of 2005 as introduced in the
Maharashtra Legislative Assembly on 14th June, 2005
reads as under:
(1) The Commissioner of Police, District Magistrates or other officers, being Licensing Authorities under the Rules framed in exercise of the powers of Sub- section (1) of Section 33 of the Bombay Police Act, 1951 have granted licences for holding dance performance in the area under their respective charges in the State. The object of granting such performance licence is to hold such dance performance for public amusement. It is brought to the notice of the State Government that the eating houses or permit rooms or beer bars to whom licences to hold dance performance, have been granted are permitting the performance of dances in an indecent, obscene or vulgar manner. It has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women. The Government has received several complaints regarding the manner of holding such dance performances. The Government considers that the performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt or injure the public morality or morals. The Government considers it expedient to
Page 17
- 17 - prohibit the holding of such dance performances in eating houses or permit rooms or beer bars.
(2) In the last Budget Session of the State Legislature, by way of a Calling Attention Motion, the attention of the Government was invited to mushroom growth of illegal dance bars and their ill-effects on the society in general including ruining of families. The members of the State Legislature, from ruling and opposition sides, pointed out that such dance bars are used as meeting points by criminals and pick-up joints of girls Page 1267 for indulging in immoral activities and demanded that such dance bars should, therefore, be closed down. These dance bars are attracting young girls desirous of earning easy money and thereby such girls are involved in immoral activities. Having considered the complaints received from general public including the peoples' representatives, the Government considers it expedient to prohibit the performance of dance, of any kind or type, in an eating house or permit room or beer bar, throughout the State by suitably amending the Bombay Police Act, 1951. However, a provision is also made to the effect that holding of a dance performance in a drama theatre or cinema theatre or auditorium; registered sports club or gymkhana; or three starred or above hotel; or in any other establishment or class establishments which the State Government may specify having regard to tourism policy for promotion of tourism in the State or cultural activities, are not barred but all such establishments shall be required to obtain performance licence in accordance with the said rules, for holding a dance performance.
Page 18
- 18 - 3. The Bill is intended to achieve the following
objectives.”
Preamble “Whereas the Commissioners of Police, District Magistrates and certain other Officers, have granted performance licences for holding dance performance;
And whereas the object of granting such performance licences is to hold such dance performance for public amusement;
And whereas it is brought to the notice of the State Government that the eating houses, permit rooms or beer bars to whom licences to hold a dance performance have been granted are permitting performance of dances in an indecent, obscene or vulgar manner;
And whereas it has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women;
And whereas the Government has received several complaints regarding the manner of holding of such dance performance;
And whereas the Government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of woken and are likely to deprave, corrupt or injure the public morality or morals.
And whereas the Government considered it expedient to prohibit such holding of performance of dances in eating houses, permit rooms and beer bars.”
Page 19
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Legal Submissions:
21. Mr. Harish N. Salve, Mr. Gopal Subramanium and
Mr. Shekhar Naphade, learned senior counsel, have on
different occasions made submissions on behalf of the
appellants. Mr. Gopal Subramanium has supplemented the
oral submissions by written submissions. The common
submissions are noted with the appellation of learned
senior counsel, referring to all the aforesaid learned senior
counsel.
22. Learned senior counsel have made submissions
confined only to the issue as to whether Sections 33A and
33B of the Bombay Police Act infringe Article 14 and with
regard to the provisions being ultra vires Article 19(1)(g) of
the Constitution as all the other issues raised by the
respondents were rejected by the High Court. The High
Court had specifically rejected the challenge to the vires of
the provisions under Article 15(1), 19(1)(a) and Article 21.
23. Learned counsel for the appellants submitted that the
classification made by the impugned enactment is based
on intelligible differentia, having a nexus with the object
Page 20
- 20 - sought to be achieved. It is submitted that the impugned
order suffers from flawed reasoning. The classification
made between establishments under Sections 33A and
33B is not solely on the basis of the different kinds of
dance performances but also on differing social impact
such establishments have, by virtue of having differing
dance performances and surrounding circumstances
including the customers. Therefore according to Mr. Gopal
Subramanium, the establishments must be understood in
broader terms than is understood by the High Court.
According to Mr. Harish Salve and Mr. Gopal
Subramanium, the judgment of the High Court is too
restrictive.
24. It was emphasised by the learned senior counsel that
the High Court has failed to understand the distinction
between the two provisions and the object sought to be
achieved. Mr. Gopal Subramanium has listed the
differences factored into the classification made by the
impugned enactment. According to the learned senior
counsel, the impugned enactment is based on intelligible
differentia which could be categorized under the following
broad heads:
Page 21
- 21 - (i) Type of dance; (ii) Form of remuneration; (iii) Demand for vulnerable women; (iv) Degree of Harm; (v) Regulatory feasibility.
25. It was submitted that in the banned establishments, the
women who dance are not professional dancers. In fact,
they are majorly trafficked into this profession or have
taken this profession when they had no other option.
Further, the dance is vulgar and obscene. Women are
showered with money when they are dancing, which does
not happen in the exempted establishments. Learned
senior counsel further submitted that the classification
based on type of dance need not be scientifically perfect
but ought not to be palpably arbitrary. According to the
learned senior counsel, in the present case, it is not just
that the type of dance performed is different but the
surrounding circumstances are also different. In the
exempted establishments, the distance between the
dancing platform and the audience is greater than at the
banned establishments. This, according to the learned
senior counsel, is sufficient to justify the classification
between the exempted establishments and the banned
establishments. Therefore, it cannot be said that the
classification is palpably arbitrary. In support of the
Page 22
- 22 - submissions, the learned senior counsel relied on the
observations made by this Court in Shashikant Laxman
Kale & Anr. Vs. Union of India & Anr. 1 wherein this
Court observed as follows :-
“We must, therefore, look beyond the ostensible classification and to the purpose of the law and apply the test of ‘palpable arbitrariness’ in the context of the felt needs of the times and societal exigencies informed by experience to determine reasonableness of the classification.
26. Reliance was also placed Welfare Association,
A.R.P., Maharashtra & Anr. Vs. Ranjit P. Gohil &
Ors.2, wherein this Court observed that:
“…………..It is difficult to expect the legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the court would respect the classification dictated by the wisdom of the legislature and shall interfere only on being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14.”
27. With regard to the form of remuneration, learned senior
counsel submitted that remuneration to dancers in banned
establishments is generally made out of the money which
is showered on them. This creates an unhealthy
competition between the dancers to attract the attention
of the customers. Therefore, each dancer tries to outdo
her competitors in terms of sexual suggestion through
1 (1990) 4 SCC 366 2 (2003) 9 SCC 358
Page 23
- 23 - dance. This, in turn, creates an unsafe atmosphere not just
for the dancers, but also for the other female employees of
such establishments.
28. Relying on the report by Shubhada Chaukhar, learned
senior counsel submitted that 84% of the bar dancers are
from outside the State of Maharashtra. These girls are
lured into bar dancing on false pretext. Supporting this
submission, the following observations are pointed out in
the same report:
“Some unmarried girls have entered the world of bars just because of its glamour. Not a few have come of their own free will. Many less educated girls are attracted to a livelihood that makes them quick money”.
29. On the basis of the aforesaid, learned senior counsel
submitted that the activities that are carried out in
establishments covered under Section 33A i.e. not just the
dance itself but the surrounding circumstances of the
dance are calculated to raise the illusion of access to
women, irrespective of the consent or dignity of women, in
men who are often in an inebriated condition. In this
context, learned senior counsel relied on the case history
of girl children rescued from the dance bar(s) under
Immoral Traffic (Prevention) Act, 1956; complaints of
Page 24
- 24 - victims family against illicit relations with bar dancers;
complaints of social organizations against dance bars;
copies of First Information Reports of cases registered in
relation to dance bars; summary of cases registered under
PITA Act, 1956, under Section 294 IPC, under Section
33(w) & 110 of Bombay Police Act, 1951 during the period
2000-2005 regarding dance bars.
30. It is submitted by the learned senior counsel for the
appellants that by comparison such complaints have
been minimal in the case of exempted establishments. The same kind of behaviour is not seen as a norm. Learned senior counsel submitted that
undesirable, anti social and immoral traffic is directly relatable to certain kind of dancing activities
performed in prohibited establishments which are not
performed in exempted establishments. Therefore, there
is a rational distinction between the exempted
establishments and the prohibited establishments. In
support of the submissions, reliance was placed on the
judgment of this Court in the case of Stat e of Uttar
Pradesh Vs. Kaushailiya & Ors. 3 , wherein the
constitutional validity of Immoral Traffic in Women and Girls Act, 1956 was called in question. This Court upheld the validity of the classification between a prostitute who is
a public nuisance and one who is not.
3 AIR 1964 SC 416
Page 25
- 25 - 31. Taking up the next head on which the classification has
been sought to be justified as intelligible differentia, i.e.
“the demand for vulnerable women,” learned senior
counsel relied on certain observations made by one
Cathatine Mackinnon (1993) in an article entitled
“Prostitution and Civil Rights” which appeared in Michigan
Journal of Gender & Law, Volume I : 13-31. The
argument given by the author therein was that:
“If prostitution is a free choice, why are the women with the fewest choices the ones most often found doing it?... The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape.”
32. Taking cue from the aforesaid comments, learned
senior counsel submitted that the dancing that takes place
in the banned establishments has a similar effect on the
psyche of the woman involved, and functions within the
same parameters of the understanding of consent. It was
emphasised that as a general rule, dancing in a dance bar
is not a profession of choice, but of necessity, and
consequently, there is a demand not for women of means
and options, but vulnerable women, who may not have
families and communities to turn to and are completely
dependent on their employers. In support of the aforesaid
Page 26
- 26 - submissions, reliance was placed upon Prayas and
Shubhada Chaukar Reports.
33. It was submitted that the High Court erroneously
ignored the contents of the reports extracted above.
34. Now coming to the next head: “Justifying the
classification on the criterion of “Degree of Harm.” The
appellants emphasised that the characteristics of the
dancing that is sought to be prohibited have, to a greater
degree than the activities that may be comparable at first
blush, created an atmosphere where physical and
emotional violence to women was both profitable and
normalized. It is, therefore, rational to classify these
establishments as a separate class based on the degree of
harm that they trigger. Support for this submission is
sought from the observations made by this Court in Ram
Krishna Dalmia Vs. Justice S.R. Tendolkar 4 wherein it
was observed as follows:
“The decisions of this Court further establish – (d) that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.”
35. Reliance was also placed on the observations made in 4 AIR 1958 SC 538
Page 27
- 27 - the case of Joseph Patsone Vs. Commonwealth of
Pennsylvania 5 . This was a case whereby an Act in
Pennsylvania made it unlawful for unnaturalised foreign
born residents to kill wild game, except in defence of
person or property. The possession of shot guns and rifles
by such persons was made unlawful. The Act was
challenged as being unconstitutional under due process
and equal protection provisions of the 14th Amendment of
the United States Constitution. The Court upheld the Act as
constitutional and observed as follows:
"The discrimination undoubtedly presents a more difficult question, but we start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if as a matter of fact, it is found that the danger is characteristic of the class named. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61,80,81. The State ‘may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses’…….. The question therefore narrows itself to whether this court can say that legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalised aliens were the peculiar source of the evil that it desired to prevent. Barrett v Indiana, 229 U.S. 26, 29.
5 232 U.S. 138 (1914)
Page 28
- 28 - Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the stale legislature was wrong in its facts. Adams v Milwaukee, 228 US. 572, 583. If we might trust popular speech in some states it was right - but it is enough that this Court has no such knowledge of local conditions as to be able to say that it was manifestly wrong."
36. Reliance was also placed on the observations made in
Keokee Consolidated Coke Co. Vs. Taylor 6 , which are
as follows:
"It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear."
37. The next judgment relied upon by the appellants is
Radice Vs. People of the State of New York 7 , in which
the New York Statute was challenged, as it prohibited
employment of women in restaurants in cities of first and
second class between hours of 10 p.m. and 6 a.m. The
Court upheld the legislation in the following words :
“Nor is the statute vulnerable to the objection that it constitutes a denial of the equal protection of the laws. The points urged under this head are (a) that the act discriminates between cities of the first and second class and other cities and communities; and
6 234 U.S.224 (1913) 7 264 U.S. 292 (1924)
Page 29
- 29 - (b) excludes from its operation women employed in restaurants as singers and performers, attendants in ladies' cloak rooms and parlors, as well as in lunch rooms or restaurants conducted by employees solely for the benefit of their employees.
The limitation of the legislative prohibition to cities of the first and second class does not bring about an unreasonable and arbitrary classification. Packard v Banton, ante, 140; Hayes v Missouri, 120 U.S. 68. Nor is there substance in the contention that the exclusion of restaurant employees of a special kind, and of hotels and employees' lunch rooms renders the statute obnoxious to the Constitution. The statute does not present a case where some persons of a class are selected for special restraint from which others of the same class are left free (Connolly v Union Sewer Pipe Co., 184 U.S. 540, 564); but a case where all in the same class of work are included in the restraint. Of course, the mere fact of classification is not enough to put a statute beyond reach of equality provision of the Fourteenth Amendment. Such classification must not be "purely arbitrary, oppressive or capricious". American Sugar Refining Co. V Louisiana, 179 U.S. 89, 92. But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some degree. The inequality produced, order to counter the challenge of the constitution must "actually and palpably unreasonable and arbitrary." ……………………………………
The U.S. Court then relied upon the observations made
in Joseph Patsone’s case (supra), Keokee Consolidated
Coke Co. case (supra) which we have already noticed.
38. Further, learned counsel supported the submissions by
relying upon the case of Mohd. Hanif Quareshi Vs.
State of Bihar 8 , wherein the court held as under:
8 AIR 1958 SC 731
Page 30
- 30 - "………The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of Constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”
39. On the basis of the aforesaid extracts, learned counsel
submitted that the classification between the exempted
establishments and prohibited establishment is also based
on “Degree of Harm”. The legislature is the best judge to
measure the degree of harm and make reasonable
classification.
40. Coming to the next factor– Regulatory Feasibility,
which, according to the learned senior counsel, supports
the validity of the classification. It was submitted that the
import of the impugned enactment is not that, what is
prohibited in establishments under Section 33A is to be
permitted in establishments under Section 33B. It is
submitted by the appellants that the acts which are
degrading, dehumanising and facilitating of gender
violence in society do not cease to be so simply by virtue
Page 31
- 31 - of it being made exclusively available to an economically
stronger sections of society. It is the submission of the
appellants that the State has already made extensive
regulatory provisions under various enactments. This
relates to the grant of nature of license, terms and
conditions of such licence, performance permits. All these
regulatory measures are with a view to cure social evils.
The impugned enactment, according to the appellants, is a
form of an additional regulation. It is justified on the
ground that the existing system of licenses and permits is
not sufficient to deal with the problem of ever increasing
"dance bars". Relying on the observations made by this
Court in S.P. Mittal Vs. Union of India & Ors. 9 it was
submitted by the appellants that it is the prerogative of
the Government to decide if certain forms of regulation are
insufficient, to provide for additional regulation. Reliance
was also placed on the observations made in the case of
Radice Vs. People of the State of New York (supra)
which are as under :-
"The basis of the first contention is that the statute unduly and arbitrarily interferes with the liberty of two adult persons to make a contract of employment for themselves. The answer of the state is that night work of kind prohibited, so injuriously threatens to impair their peculiar and natural functions, and so exposes them to the dangers and menaces incident to night life in large cities, that a statute prohibiting
9 (1983) 1 SCC 51
Page 32
- 32 - such work falls within the police power of the state to preserve and promote the public health and welfare.
The legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant…… The injurious consequences were thought by the legislature to bear more heavily against women than men and considering their delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing. Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state legislature here determined that the night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination".
41. Relying on the aforesaid, it is submitted that exempted
establishments as understood by Section 33B are
gymkhanas, three starred or above hotels. In order to be
considered three stars or above establishments, such
establishments have to meet greater degrees of scrutiny,
both from Government and from private associations
(hoteliers, reviewers etc). In fact, such establishments
generally maintain standards higher than the standards
Page 33
- 33 - expected of them under the regulation. Therefore, the
regulation of such establishments is significantly easier, as
opposed to the prohibited establishments. These
establishments function, according to the appellants, to a
greater degree, outside the constant scrutiny of the law. It
is also pointed out that it is significantly easier to police
the exempted establishments, which at present are six in
number, than attempting to police the much greater
number of prohibited establishments. It is also pointed out
that in cases where an exempted establishment is found
carrying out activities prohibited in S.33A, it is incumbent
on the relevant authority to revoke the permission for such
acts. Therefore, it was submitted that the significant
difference in feasibility of regulation is another basis for
classifying prohibited establishments. The High Court,
according to the counsel, failed to examine the two
provisions in a proper perspective.
42. The next submission of the appellants is that “the
objective of the Act is an expression of the Obligation on
the State to secure safety, social order, public order and
dignity of women.” It is submitted that a bare perusal of
the Preamble of the amending Act and the Statement of
Page 34
- 34 - Objects and Reasons would make it clear that the State
enacted the legislation only after receipt of complaints
from various social organizations as well as from various
individuals. The Preamble makes it clear that the
legislature had enough material to show that the
performance of dance in the said bars gives rise to
exploitation of women, and further that the 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.
The High Court ought to have considered the Statement of
Objects and Reasons and Preamble of the Act to discern
the true intention of the legislature. In support of the
submission that the Court ought to have looked at the
objects and reasons, reliance is placed on the observations
of this Court in Shashikant Laxman Kale (supra),
wherein it is observed as follows:
“It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification….”
Page 35
- 35 - 43. It was reiterated that the High Court has given a very
restrictive interpretation to the phrase “exploitation of
women”. The expression would include not only the
women who dance in the prohibited establishments but
also the waitresses who work in the same establishments.
It would also include the effect of the dance bar on gender
relations of not just the bar dancer, but for the women
around the area. The High Court, according to the
appellants, failed to take into account the object that the
statutory provisions are in respect of an activity of
exploitation of women conducted for financial gain by bar
owners and their intermediaries. It is emphasised that the
issue involved in this matter is not merely about dancing
in the bars, but involves larger issues of dignity of women,
the destruction of environments and circumstances where
it is profitable to keep women vulnerable. In such
circumstances, the law is being used as a tool for dealing
with the evils of human trafficking and prostitution, rather
than simply prohibiting such activity without the
administrative resources to effectively implement such
prohibition. It is further submitted that the State is bound
by this duty to protect the interest of its citizens especially
its weaker sections under the Constitution. The legislation
Page 36
- 36 - is sought to be justified on the touchstone of Article 23,
Article 39(e) and Article 51A(e) of the Constitution. The
action of' the Government is also justified on the ground
that it is necessary to emancipate women from male
dominance as women in dance bars are looked upon as
objects of commerce. It is emphasised that the bar
dancing is obscene, vulgar and casts considerable amount
of negative influence on institutions like family, society,
youth etc.
44. Mr. Gopal Subramanium also emphasised that the State
cannot shut its eyes to the larger social problems arising
out of bar dancing which is uncontrolled and impossible to
regulate. He sought to justify the aforesaid submission by
taking support from some observations made in Paris
Adult Theatre I Et. Al Vs. Lewis R. Slaton, District
Attorney, Atlanta Judicial Circuit, Et. Al 10 . This case
provides, according to the learned senior counsel, a
discussion on relation with obscenity and pornography and
the duty of the state to regulate obscenity. Reliance is
placed on the following observations at pp 58, 60, 63, 64
and 69.
10 413 U.S. 49 [1973]
Page 37
- 37 - “It is not for us to resolve empirical uncertainties underlying state legislation, save in exceptional Case where that legislation plainly impinges upon rights protected by the Constitution itself.”
………………
“Although there is no conclusive proof of a connection between anti social behaviour and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality." Roth v. United States, 354 U.S.., at 485, quoting Chaplinsky v New Hampshire, 315 US. 568, 572 (1942).”
…………………
“The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a state from reaching such a conclusion and action on it legislatively simply because there is no conclusive evidence or empirical data.”
…………………………
“The states have the power to make a morally neutral judgment that public exhibition of obscene material or commerce in such material has a tendency to injure community as a whole, to endanger the public safety or to jeopardise in Mr. Chief Justice Warren's words, the States' "right ... to maintain a decent society". Jacobellis v Ohio 378 US at 199 (dissenting opinion)"
45. It is further pointed out that the decision to ban
obscene dancing is also in consonance with Convention on
the Elimination of All Forms of Discrimination Against
Women (CEADAW). Learned senior counsel further
Page 38
- 38 - submitted that establishments covered by Section 33A
have a greater direct and indirect effect on the
exploitation of women, and the resultant and causative
violence against women. It is submitted that the degree of
effect on the subjects covered by the objects of the
enactment are greater than any effect that might be
attributable to exempted establishments.
46. In any event, exempted establishments will also not be
permitted to carry out such performances, but are left to
the operation of parallel regulation simply because they
are significantly fewer in number and their very nature
facilitates effective regulation. Therefore, according to the
learned senior counsel, the impugned enactment is not
discriminatory as it makes a reasonable legislative
classification which has a direct nexus with the object
sought to be achieved by the Act. In support of the
proposition that there is a reasonable classification and
that the State has the power to make such classification,
reliance is placed on the observations made by this Court
in Kedar Nath Bajoria & Anr. Vs. The State of West
Bengal 11 which are as follows:
"Now it is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in
11 1954 SCR 30
Page 39
- 39 - character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation. To put it simply all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentia which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the intelligible differentia having a reasonable relation to the legislative purpose.”
47. Reliance is also placed on the observations of this Court
in Ram Krishna Dalmia Vs. Justice S.R. Tendolkar
(supra) for outlining the scope and ambit of Article 14 of
the Constitution of India.
48. Finally, it is submitted that the Government had various
documents and reports based on which they felt it
important to regulate the menace of trafficking and to
uphold the dignity of women. On the basis of the aforesaid
material, it is submitted that the Government of
Maharashtra enacted the amendment in good faith and
knowledge of existing conditions after recognizing harm,
confined the restrictions to cases where harm to women,
public morality etc. was the highest. The High Court has
failed to appreciate all the documentary evidence placed
Page 40
- 40 - and gave a narrow meaning to the object of the Act which
is in the larger interest of the women and society.
Article 19(1)(g) -
49. With regard to whether there is any infringement of
rights under Article 19(1)(g), it is submitted by the learned
senior counsel that the fundamental right under Article
19(1)(g) to practice any profession, trade or occupation is
subject to restrictions in Article 19(6). Therefore, by
prohibiting dancing under Section 33A, no right of the bar
owners are being infringed. The curbs imposed by Sections
33A and 33B only restrict the owners of the prohibited
establishments from permitting dances to be conducted in
the interest of general public. The term “interest of
general public” is a wide concept and embraces public
order and public morality. The reliance in support of this
proposition was placed on State of Gujarat Vs. Mirzapur
Moti Kureshi Kassab Jamat & Ors. 12 Reference was
also made to Municipal Corporation of the City of
Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai &
Anr. 13 , wherein this Court gave a wide meaning to
“interest of general public” and observed as follows :
12 AIR 2006 SC 212 13 (1986) 3 SCC 20
Page 41
- 41 - “The expression in the interest of general public' is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.”
50. Factually, it was emphasised that the history of the
dance bars and the activities performed within the dance
bars show that they are not set up with an intention to
propagate art, exchange ideas or spread knowledge. It is
submitted that the dance performances in these
prohibited establishments were conducted in obscene and
objectionable manner to promote the sale of liquor.
Therefore, the main activity conducted in these prohibited
establishments is not a fundamental right. There is no
fundamental right in carrying business or sale in liquor and
Government has power to regulate the same. There is also
overwhelming evidence on record to show that girls have
not opted for this profession out of choice but have been
brought into this by middle men or other exploitative
factors. There is no free and informed choice being made
by the bar dancers. This is sought to be supported by the
observations in the Prayas Report where it is stated :
“In conclusion, the study has shown that most women did not know the nature of their employment at the time of getting into dance bars for work, and they were brought into this work through middle men. The basic elements of trafficking were found to
Page 42
- 42 - be present in the process of entry, though it may not have been in its overt form. Having come here and seeing no other options, they had no choice but to continue in this sector……”.
51. The SNDT Report also shows that only 17.40% of the
bar girls are from State of Maharashtra. The bar owners
have been exploiting the girls by sharing the tips received
and also capitalizing on their performance to serve liquor
and improve the sales and business. Again reliance is
placed on the observations made in Prayas Report at page
47 which is as under :
"The women working as either dancers or waiters were not paid any salary, but were dependant on tips given by customers in the bar, which varies from day-to-day and from women to another. This money is often shared with the bar owner as per a fixed ratio ranging from 30 to 60 percent."
52. The same conclusion is also found in Shubadha
Chaukar Report where it is stated that :
"Tips given by enamoured customers are the main income of girls working in the bars. Normally dancers do not get a salary as such. The bar owner makes it look like he is doing a favour by allowing them to make money by dancing. So he does not give them a salary. On the contrary a dancer has to hand over to the owner 30 to 40 per cent of what she earns. This varies from bar to bar.”
53. On the basis of the above, it was submitted that the bar
owners with a view to attract customers introduced dance
Page 43
- 43 - shows where extremely young girls dance in an indecent,
obscene and vulgar manner which is detrimental to the
dignity of women and depraves and corrupt the morality.
54. The second limb of the submission is that the
prohibition does not bar the restaurant owners or the beer
parlour owners from running their respective
establishments i.e. restaurant business, beer parlours etc.
What is being prohibited is only the dancing as a form of
entertainment in such establishments. The bar owners can
still conduct entertainment programmes like music,
orchestras etc which are not prohibited. It is submitted
that loss of income cannot be a reason for the bar owners
to claim that their right to trade and profession is being
infringed. This submission is sought to be supported by the
observations of this Court in T.B. Ibrahim Vs. Regional
Transport Authority, Tanjore 14 . In this case it is
observed by this Court as follows:
“………………..There is no fundamental right in a citizen to carry on business wherever he chooses and his right must he subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction has power to do so. Whether the abolition of stand was conducive to
14 [1953] 4 SCR 290
Page 44
- 44 - public convenience or not is a matter entirely for the transport authority to judge, and it is not open to the court to substitute its own opinion for the opinion of the Authority, which is in the best position, having regard to its knowledge of local conditions to appraise the situation".
55. It was next submitted that the High Court wrongly
concluded that the activity of young girls/women being
introduced as bar dancers is not Res Extra Commercium.
Such activity by the young girls is a dehumanising
process. In any event, trafficking the girls into bar dancing
completely lacks the element of conscious selection of
profession. An activity which has harmful effects on the
society cannot be classified as a profession or trade for
protection under Article 19(1)(g) of the Constitution. Such
dances which are obscene and immoral would have to be
considered as an activity which is 'Res Extra
Commercium'. The High Court has wrongly concluded
otherwise. Reliance is also placed on the observations
made by this Court in the case of State of Bombay Vs.
R.M.D. Chamarbaugwala & Anr. 15 In this case, it was
observed by this Court that activity of gambling could not
be raised to the status of trade, commerce or intercourse
and to be made subject matter of a fundamental right
guaranteed by Article 19(1)(g). Similarly, in this case the 15 AIR 1957 SC 699
Page 45
- 45 - dance bars having negative impact on family, women,
youth and has been augmenting the crime rate as well as
trafficking and exploitation of women. Reference was
again made to the various reports and studies to show the
disruptive opinion of the dance bars in the families of the
persons employed in such dance bars. Reliance was
placed on the judgment of this Court in Khoday
Distilleries Ltd. & Ors. Vs. State of Karnataka &
Ors. 16 , in support of the submission that the trading in
liquor is not a fundamental right. This Court further
observed that trafficking in women or in slaves or in
counterfeit coins or to carry on business of exhibiting or
publishing pornographic or obscene films and literature is
not a fundamental right as such activities are vicious and
pernicious. Reliance was placed on the following
observations:
“The correct interpretation to be placed on the expression "the right to practice any profession, or to carry on any occupation, trade or business" is to interpret it to mean the right to practice any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality. ………This is apart from the fact that under our Constitution the implied restrictions on the right to practice any profession or to carry on any occupation, trade or business are made explicit in clauses (2) to (6) of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions.”
16 (1995) 1 SCC 574
Page 46
- 46 - “It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium, (outside commerce). There cannot be a business in crime. (c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited.”
56. The aforesaid observations were reiterated in State of
Punjab & Anr. Vs. Devans Modern Breweries Ltd. &
Anr. 17 Relying on the aforesaid observations, it was
submitted that in the banned establishments, the dance is
performed amidst consumption of liquor and the State has
every right and duty to regulate the consequence
emanating from such circumstances. In support of this
submission, the appellants relied on the judgment of the
United States Supreme Court in New York State Liquor
Authority Vs. Dennis BELLANCA, DBA The Main
Event, Et Al. 18 . In this case, the question raised was
about the power of a State to prohibit topless dancing in
an establishment licensed by State to serve liquor. It was
claimed that the prohibition was violative of United States
Constitution. U.S. Supreme Court, upon consideration of
the issue, observed as follows:
17 (2004) 11 SCC 26 18 452 U.S. 714 (1981)
Page 47
- 47 - "In short, the elected representatives of the State of New York have chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of reasonable restriction upon establishments which sell liquor for on-premises consumption. Given the "added presumption in favour of the validity of the state regulation" conferred by Twenty first Amendment, California v LaRue, 409 U. S., at 118, we cannot agree with the New York Court of Appeals that statute violates United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty first Amendment makes that a policy judgment fin- the state legislature, not the courts."
57. It was also submitted that in the present case the dance
is conducted in an obscene manner and further the dance
bars eventually happen to be pick up locations that also
propagate prostitution in the area, which is sought to be
prevented by the legislation. The appellants also relied on
the judgment in Regina Vs. Bloom 19 . In this case, the
appellants were proprietors of the clubs who were charged
with keeping a disorderly house, which arose out of
matters that occurred in course of strip tease
performances. The Court of Criminal Appeal (England) held
that as regards the cases in which indecent performances
or exhibition are alleged, a disorderly house is a house
conducted contrary to law and good order in that matters
19 1961 3 W.L.R. 611
Page 48
- 48 - performed or exhibited are of such a character that their
performance or exhibition in a place of common resort
amounts to an outrage of public decency or tends to
corrupt or deprave the dignity of women and public
morality. Therefore in the present circumstances, the
State, in the interest of dignity of women, maintenance of
public order and morality has banned dances in such
establishments where regulation is virtually impossible.
Since the obscene and vulgar dancing is a res extra
commercium, the establishments cannot claim a
fundamental right to conduct dance therein.
58. It is further submitted that the legislation also does not
infringe any fundamental right of the bar dancers. The
prohibition contained under Section 33A is not absolute
and the dancers can perform in exempted establishments.
This apart, the dancers are also free to dance in
auditoriums, at parties, functions, musical concerts, etc.
According to the appellants, another important facet of the
same submission is that the rights of the bar girls to dance
are subject to the right of the bar owners to run the
establishment. In other words, the right of the bar girls are
derivative and they do not have absolute right to dance as
Page 49
- 49 - a vocation or profession in the dance bars. This right would
be automatically curtailed in case the dance bar is closed
for economic reasons or as a result of licence being
cancelled. In support of the submission, the appellants
relied on a judgment of this Court in Fertilizer
Corporation Kamgar Union (Regd.), Sindri & Ors. Vs.
Union of India & Ors. 20 in which it is held as under :-
"14. The right of the petitioners to carry on the occupation of industrial workers is not, in any manner, affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of sale, it will be open to them to pursue their rights and remedies under the industrial laws. But the point to be noted is that the closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed under article 19(1)(g) of the constitution.”
59. Relying on the above, it is submitted that there is no
absolute right for the bar girls to be employed in the dance
bars and that the right to work would be subject to the
continuation of the establishment. Hence, it is a derivative
right emanating from the right of the dance bar owners to
run the establishments subject to restrictions imposed.
20 AIR 1981 SC 344
Page 50
- 50 - 60. It is next submitted that the right to trade and
profession is subject to reasonable restriction under Article
19(6) of the Constitution. The decision to impose the ban
was to defend the weaker sections from social injustice
and all forms of exploitation. In the instant case, the moral
justification is accompanied with additional legitimate
state interest in matters like safety, public health, crimes
traceable to evils, material welfare, disruption of cultural
pattern, fostering of prostitution, problems of daily life and
multiplicity of crimes. Learned senior counsel for the
appellants strongly relied upon the Statement of Objects
and Reasons and the Preamble of the amending Act to
reiterate that the State is enjoined with the duty to protect
larger interest of the society when weaker sections are
being exploited as objects of commerce and when there is
issue of public order and morality involved.
61. The appellants have relied on a number of judgments of
this Court to illustrate the concept of “reasonable
restriction” and the parameters within which the court will
examine a particular restriction as to whether it falls within
the ambit of Article 19(6). Reference was made to the
State of Madras Vs. V.G. Row 21 , B.P. Sharma Vs. 21 AIR 1952 SC 196
Page 51
- 51 - Union of India & Ors. 22 , M.R.F. Ltd. Vs. Inspector
Kerala Govt. & Ors. 23 . Since the principles are all
succinctly defined, we may notice the observations made
by this Court in B.P. Sharma’s case (supra).
"The main purpose of restricting the exercise of the right is to strike a balance between individual freedom and social control. The freedom, however, as guaranteed under article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity there must exist some strong reason for the same with a view to attain some legitimate object and in case of non-imposition of such prohibition, it may result in jeopardizing or seriously affecting the interest of the people in general. If it is not so, it would not be a reasonable restriction if placed on exercise of the right guaranteed under article 19 (1) (g). The phrase ''in the interest of the general public" has come to be considered in several decisions and it has been held that it would comprise within its ambit interests like public health and morals (refer to State of Maharashtra v Himmatbhai Narbheram Rao (AIR 1970 SC 1157), economic stability On consideration of a catena of decisions on the point, this Court, in a case reported in 'IMF Ltd v Inspector, Kerala Government (1998) 8 SCC 227 has laid certain tests on the basis of which reasonableness of the restriction imposed on exercise of the right guaranteed under Article 19 (1)(g) can be tested. Speaking for the Court, Saghir Ahmad (as he then was), laid down such considerations as follows:
"(1) While considering the reasonableness of the restrictions, the court has to keep in mind the directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of general public.
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed
22 (2003) 7 SCC 309 23 (1998) 8 SCC 227
Page 52
- 52 - principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to the changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of article 19.
(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (see State of U.P. v Kaushailiya)
(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of constitutionality of the Act will naturally arise.”
62. Thereafter, Mr. Subramanium has cited State of
Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat
(supra) in support of the submission that Statement of
Objects and Reasons would be relevant for considering as
to whether it is permissible to place a total ban under
Article 19(6). After considering the principles laid down
earlier, this court concluded as under:-
“We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction.”
63. Relying on the aforesaid, it was submitted that while
Page 53
- 53 - considering the reasonableness, the court should consider
the purpose of restriction imposed, extent of urgency,
prevailing conditions at the time when the restriction was
imposed. According to the appellants, in the instant case,
the social order problems in and around the dance bars
had reached such heights which were beyond the tolerable
point. The tests laid down earlier were reiterated in M.J.
Sivani & Ors. Vs. State of' Karnataka & Ors. 24 In this
case, it is observed as follows :
“18…………. In applying the rest of reasonableness, the broad criterion is whether the law strikes a proper balance between social control on the one hand and the right of individual on the other hand. The court must take into account factors like nature of the right enshrined, underlying purpose of the restriction imposed, evil sought to be remedied by the law, its extent and urgency, how far the restriction is or is not proportionate to the evil and the prevailing conditions at that time.”
64. Relying on the aforesaid, it was submitted that the
larger issue involved was the trafficking of young women
and minors into dance bars and also incidentally leading to
prostitution which could have been prevented to a large
extent only by imposing the ban. In support of this,
learned counsel have relied on the Prayas Report which
shows that 6% of the women working in dance bars are
minors and 87% are between the age of 18-30 years.
24 (1995) 6 SCC 289
Page 54
- 54 - Similarly, SNDT report states that minors constitute upto
6.80 % and those between 19 to 30 years of age
constitute 88.20%. Prayas Report further states that "It
was found that the women respondents did not find any
dignity in this work. This is borne out by the fact that 47%
of women did not reveal their work to family members and
outsiders. They are often exposed to the sexual overtures
of overenthusiastic customers and are aware of their
vulnerability to get exploited". The appellants also relied
on a number of complaints and the various cases of minor
girls being rescued from dance bars during the period
2002-05 to buttress their submission that the young girls
were subjected to human trafficking. Learned senior
counsel also submitted that the High Court has
erroneously concluded that if the women can safely work
as waitress in the Restaurants why can they not work as
dancers. The learned senior counsel also submitted that
the High Court wrongly proceeded on the basis that there
was no evidence before the State or the Court in support
of the legislation. On the basis of the above, it is submitted
that the restrictions imposed are reasonable and the
legislation deserves to be declared intra vires the
constitutional provisions.
Page 55
- 55 -
65. Further, it was submitted that the legislative wisdom
cannot be gone into by the court. The Court can only
invalidate the enactment if it transgresses the
constitutional mandate. It is submitted that invalidation of
a statute is a grave step and that the legislature is the
best judge of what is good for the community. The
legislation can only be declared void when it is totally
absurd, palpably arbitrary, and cannot be saved by the
court. It is reiterated that the principle of “Presumption of
Constitutionality” has to be firmly rebutted by the person
challenging the constitutionality of legislation. The United
States Supreme Court had enunciated the principle of
constitutionality in favour of a statute and that the burden
is upon the person who attacks it to show that there has
been a clear transgression of any Constitutional provision.
The appellants relied on the observations made in
Charanjit Lal Chowdhury Vs. Union of India & Ors. 25
wherein this Court observed as follows :
“It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds"
25 AIR 1951 SC 41
Page 56
- 56 - 66. The same principle was reiterated by this Court in
State of Bihar & Ors. Vs. Bihar Distillery Ltd. & Ors.26
in the following words :
“The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as a part of attempt to sustain the validity/constitutionality of the enactment. After all, an act by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void."
67. On the basis of the above, it was submitted that the
burden of proof is upon the Respondents herein to prove
that the enactment/amendment is unconstitutional. Once
the respondents prima facie convince the Court that the
enactment is unconstitutional then the burden shifts upon
the State to satisfy that the restrictions imposed on the
fundamental rights satisfy the test of or reasonableness.
The High Court, according to the appellants, failed to apply
the aforesaid tests.
68. Finally, it was submitted that in the event this Court is
26 (1997) 2 SCC 453
Page 57
- 57 - not inclined to uphold the constitutionality of the
impugned provisions, it ought to make every effort to give
the provision a strained meaning than what appears to be
on the face of it. This is based on the principle that it is
only when all efforts to do so fail, the court ought to
declare a statute to be unconstitutional. The principle has
been noticed by this Court in Government of Andhra
Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)27 wherein it is
observed as follows :
"46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no two views that are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v State of Kerala (1979) 1 SCC 23 para 6.
69. The same principle was reiterated in Kedar Nath
Singh Vs. State of Bihar28 which is as follows :
“It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation
27 (2008) 4 SCC 720 28 AIR 1962 SC 955
Page 58
- 58 - would render them unconstitutional, the court would lean in favour of the former construction.”
70. On the basis of the above, it was submitted that this
Court ought to read down the provision in the following
manner:
“All dance” found in Section 33A of the Police Act may
be read down to mean that “dances which are obscene and
derogatory to the dignity of women”. This would ensure that
there is no violation of any of the rights of the girls who
dance as well as that of the owners of the establishments.
Still further, it was submitted that even if the reading of the
provisions as mentioned above is not accepted, Section 33A
can still be saved by applying the doctrine of severability. It
is submitted that the intention of the legislature being to
prohibit and ban obscene dance in the interest of society
and to uphold the dignity of women, by severing the
exempting section, namely, Section 33B and the provision
which is contained in Section 33A can be declared to be in
accordance with the object of legislature. This would
remove the vice of discrimination, as declared by the High
Court.
Respondents’ Submissions:
Page 59
- 59 - 71. In response to the aforesaid elaborate submissions,
learned senior counsel appearing for the respondents have
also submitted written submissions. Mr. Mukul Rohatgi,
learned senior counsel appeared for respondent – Indian
Hotel and Restaurants Association in C.A.No.2705 of 2006,
whereas Dr. Rajeev Dhawan, learned senior
counsel, appeared on behalf of Bhartiya Bar Girls Union in
C.A.No.2705 of 2006. Mr. Anand Grover, learned senior
counsel, appeared for respondent Nos. 1 to 6 in
W.P.No.2338/2005 and respondent No. 1 and 2 in W.P.
No.2587 of 2005.
72. Since the High Court has accepted the submissions
made on behalf of the respondents (writ petitioners in the
High Court), it shall not be necessary to note the
submissions of the learned senior counsel as elaborately
as the submissions of the appellants herein. Mr. Mukul
Rohatgi submitted that, at the heart of the present case,
the controversy revolved around the right to earn a
livelihood more so than the right of a person to choose the
vocation of their calling. It was submitted that apart from
the reasoning given in the judgment of the High Court, the
challenge to the impugned legislation can be sustained on
Page 60
- 60 - other grounds also. He submits that a classification of the
establishments into three stars and above, and below is
not based on any intelligible differentia and is per se
discriminatory and arbitrary. Bar dancers have a right to
livelihood under Article 21 and the ban practically takes
away their right to livelihood. He therefore, submits that
the ban is violative of Articles 14, 19(1)(a) and 19(1)(g)
and 21 of the Constitution. Relying on the observations
made by this Court in the case of I.R. Coelho (Dead) by
LRs. Vs. State of T.N.29, he submits that these articles
are the very heart and soul of the Constitution and are
entitled to greater protection by the Court than any other
right. Mr. Rohatgi submits that the submissions made by
the appellants with regard to the protecting the dignity of
women and preventing trafficking in women are
misconceived. There are adequate measures in the
existing provisions, licensing conditions which would
safeguard the dignity of women. Relying on Sections 370
and 370A of the IPC, he submits that there are adequate
alternate mechanisms for preventing trafficking in women.
Elaborating on the submissions that dance is protected by
Article 19(1)(a) of the Constitution being a part of
fundamental right of speech and expression, he relied 29 (2007) 2 SCC 1
Page 61
- 61 - upon the observations made by this Court in Sakal
Papers (P) Ltd. & Ors. Vs. The Union of India30. He has
also made a reference to some decisions of the High Court
recognizing that dancing and cabaret are protected rights
under Article 19(1)(a). He points out that it is always open
to a citizen to commercially benefit from the exercise of
the fundamental right. Such commercial benefit could be
by a bar owner having dance performance or by the
dancers themselves using their creative talent to carry on
an occupation or profession. The impugned amendment
prohibits the bar owners from carrying on any business or
trade associated with dancing in these establishments and
the bar girls from dancing in those premises. He then
submits that the amendment violates Article 19(1)(g), by
imposing restrictions by way of total prohibition of dance.
Even though the freedom under Article 19(1)(g) of the
Constitution is not absolute, any restriction imposed upon
the same have to fall within the purview of clause 6 of
Article 19. Therefore, the restriction imposed by law must
be reasonable and in the interest of general public. It was
also submitted that while such restriction may incidentally
touch upon other subjects mentioned above, such as
morality or decency, the same cannot be imposed only in 30 (1962) 3 SCR 842
Page 62
- 62 - the interest of morality or decency. Mr. Rohatgi then
submitted that the reasons set out in the objects and
reasons of the amendment are not supported by any
evidence which would demonstrate that there was any
threat to public order. There is also no material to show
that the members of the Indian Hotel and Restaurants
Association were indulging in human trafficking or flesh
trade. Therefore, according to Mr. Rohatgi, the ban was
not for the protection of any interests of the general
public. In fact, Mr. Rohatgi emphasised that the Statement
of Objects and Reasons does not refer to trafficking. The
compilation of 600 pages given to the respondents by the
appellants does not contain a single complaint about
trafficking. All allegations relating to trafficking have been
introduced only to justify the ban on dancing. He,
therefore, submits that the total ban imposed on dancing
violates the fundamental right guaranteed under Article
19(1)(g). Learned senior counsel further submitted that
dancing is not res extra commercium. He emphasised that
if the dancing of similar nature in establishments,
mentioned in Section 33B is permissible, the prohibition of
similar dance performance in establishments covered
under Section 33 cannot be termed as reasonable and or
Page 63
- 63 - “in the interest of general public”. Therefore, according to
Mr. Rohatgi, the restrictions do not fall within the scope of
Article 19(6). He relied on the judgment of this Court in
Anuj Garg & Ors. Vs. Hotel Association of India &
Ors.31, wherein a ban on employment of women in
establishment where liquor was served, was declared
discriminatory and violative of Articles 14, 15, 19 and 21.
In this case, it was held as under :
“…….Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging the proportionality should be a standard capable of being called reasonable in a modern democratic society.
Instead of putting curbs on women's freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf.
Also with the advent of modern State, new models of security must be developed. There can be a setting where the cost of security in the establishment can be distributed between the State and the employer.”
73. Relying on the State of Gujarat Vs. Mirzapur Moti
Kureshi Kassab Jamat (supra), Mr. Rohatgi submitted
that the standard for judging reasonability of restriction or
restrictions which amounts to prohibition remains the
31 (2008) 3 SCC 1
Page 64
- 64 - same, excepting that a total prohibition must also satisfy
the test that a lesser alternative would be inadequate. The
State has failed to even examine the possibility of the
alternative steps that could have been taken. He has also
relied on the judgments with regard to the violation of
Article 14 to which reference has already been made in
the earlier part of the judgment. Therefore, it is not
necessary to reiterate the same. However, coming back to
Section 33B, Mr. Rohatgi submitted that dancing that is
banned in the establishments covered under Section 33A
is permitted under the exempted establishments under
Section 33B. According to learned senior counsel, the
differentia in Section 33A and 33B does not satisfy the
requirement that it must be intelligible and have a rational
nexus sought to be achieved by the statute. He submits
that the purported “immorality” gets converted to “virtue”
where the dancer who is prohibited from dancing in an
establishment covered under Section 33A, dances in an
establishment covered under Section 33B. The
discrimination, according to Mr. Rohatgi, is accentuated by
the fact that for a breach committed by the licensees in
the category of Section 33B only their licenses will be
cancelled but the licensees of establishments covered
Page 65
- 65 - under Section 33A would have to close down their
business. He further submits that the provision contained
in Section 33A is based on the presumption of the State
Government that the performance of dance in prohibited
establishments having lesser facilities than three star
establishments would be derogatory to the dignity of
women. The State also presumed that dancing in such
establishments is likely to deprave, corrupt or injure public
morality. The presumption is without any factual basis.
The entry of women in such establishments is not banned.
There is also no prohibition for women to take up
alternative jobs within such establishments. They can
serve liquor and beer to persons but this does not lead to
the presumption that it would arouse lust in the male
customers. On the other hand, when women start dancing
it is presumed that it would arouse lust in the male
customers. He emphasised the categorization of
establishments under Sections 33A and 33B does not
specify the twin criteria: (i) that the classification must be
founded on an intelligible differentia which distinguishes
those that are grouped together from others; and (ii) the
differentia must have a rational nexus or relation to the
object sought to be achieved by the legislation. He
Page 66
- 66 - submits that there is a clear discrimination between the
prohibited establishments and the exempted
establishments. He points out that the only basis for the
differentiation between the exempted and prohibited
establishments is the investment and the paying capacity
of patrons. Such a differentiation, according to Mr.
Rohatgi, is not permissible under the Constitution.
74. The next submission of Mr. Rohatgi is that Article 21
guarantees the right to life which would include the right
to secure a livelihood and to make life meaningful. Article
15(1) of the Constitution of India guarantees the
fundamental right that prohibits discrimination against any
citizen, inter alia, on the ground only of sex. Similarly
Article 15(2) lays down that no citizen shall, on grounds
only of, inter alia, sex, be subject to any disability, liability,
restriction or condition with regard, inter alia, to “access to
shops, public restaurants, hotels and places of public
entertainment.” The provision in Article 15(3) is meant for
protective discrimination or a benign discrimination or an
affirmative action in favour of women and its purpose is
not to curtail the fundamental rights of women. He relied
Page 67
- 67 - on the observations made by this Court in Government
of A.P. Vs. P.B. Vijayakumar & Anr. 32 :-
“The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women……’’
(Emphasis supplied)
75. He submits that the impugned legislation has achieved
the opposite result. Instead of creating fresh job
opportunities for women it takes away whatever job
opportunities are already available to them. He
emphasised that the ban also has an adverse social
impact. The loss of livelihood of bar dancers has put them
in a very precarious situation to earn the livelihood. Mr.
Rohatgi submitted that the dancers merely imitate the
dance steps and movements of Hindi movie actresses.
They wear traditional clothes such as ghagra cholis,
sarees and salwar kameez. On the other hand, the
actresses in movies wear revealing clothes: shorts,
swimming costumes and revealing dresses. Reverting to
32 (1995) 4 SCC 520
Page 68
- 68 - the reliance placed by the appellants on the Prayas Report
and Shubhada Chaukar Report, Mr. Rohatgi submitted that
both the reports are of no value, especially in the case of
Prayas Report which is based on interviews conducted with
only few girls. The SNDT Report actually indicates that
there is no organized racket that brings women to the
dance bars. The girls’ interview, in fact, indicated that
they came to the dance bars through family, community,
neighbors and street knowledge. Therefore, according to
the Mr. Rohatgi, the allegations with regard to trafficking
to the dance bars by middlemen are without any basis.
Most of the girls who performed dance are generally
illiterate and do not have any formal education. They also
do not have any training or skills in dancing. This clearly
rendered them virtually unemployable in any other job.
He, therefore, submits that the SNDT Report is
contradictory to the Prayas Report. Thus, the State had no
reliable data on the basis of which the impugned
legislation was enacted. Mr. Rohatgi further submitted that
there are sufficient provisions in various statutes which
empowered the Licensing Authority to frame rules and
regulations for licensing/controlling places of public
amusement or entertainment. By making a reference to
Page 69
- 69 - Rules 120 and 123 framed under the Amusement Rules,
1960; he submits that no performers are permitted to
commit on the stage or any part of the auditorium any
profanity or impropriety of language. These dancers are
also not permitted to wear any indecent dress. They are
also not permitted to make any indecent movement or
gesture whilst dancing. Similar provisions are contained
under the Performance License. Although learned senior
counsel has listed all the regulatory provisions contained
under the Bombay Police Act, it is not necessary to notice
the same. The submission based on this regulation is that
there is wide amplitude of power available to the
appellants for controlling any perceived violation of dignity
of women through obscene dances. He submits that the
respondents are being made a scapegoat for lethargy and
failure of police to implement the provisions of law which
are already in place and are valid and subsisting. Failure of
the appellants in not implementing the necessary rules
and regulations would not justify the impugned legislation.
Learned senior counsel has also submitted that the State
Government, in its effort to regulate the conduct of
dances, had formed a Committee to make suggestions for
amendment of the existing Rules. The Committee had
Page 70
- 70 - prepared its report and submitted the same to the State
Government. However, the State Government did not take
any steps for implementation of the recommendation
which was supported by the Indian Hotel and Restaurant
Association. He submits that the judgment of the High
Court does not call for any interference.
76. Dr. Rajeev Dhawan, learned senior counsel, has also
highlighted the same issues. He has submitted that the
provisions contained in Section 33A(1) prohibit
performance of dance of any kind or type. Since the
Section contained the Non Obstante Clause, it is a stand
alone provision absolutely independent of the Act and the
Rules. He submits that the provisions are absolutely
arbitrary and discriminatory. Under Section 33A(1), there
is an absolute provision which is totally prohibiting dance
in eating houses, permit rooms or beer bars. On the other
hand, Section 33B introduced the discriminatory provision
which allows such an activity in establishments where
entry is restricted to members only and three starred or
above hotels. He also emphasised that the consequence of
violation of Section 33A is punishment up to 3 years
imprisonment or Rs. 2 lakhs fine or both and with a
Page 71
- 71 - minimum 3 months and Rs.50,000/- fine unless reasons
are recorded. The Section further contemplates that the
licence shall stand cancelled. Section 33A(6) makes the
offence cognizable and non-bailable. According to Dr.
Rajeev Dhawan, the provision is absolute and arbitrary. He
reiterates that the non obstante clause virtually makes
Section 33A stand alone. Further Section 33A(1) is
discretion less. It applied to all the establishments and
covers all the activities, including holding of performance
of dance of any kind or type in any eating house, permit
room or beer bar. There is total prohibition in the aforesaid
establishments. The breach of any condition would entail
cancellation of licence. According to Dr. Dhawan, Section
33A is a draconian code which is discretion less overbroad,
arbitrary with mandatory punishment for offences which
are cognizable and non-bailable. He then emphasised that
the exemption granted to the establishment under Section
33B introduces blatant discrimination. He submits that the
classification of two kinds of establishment is
unreasonable. According to Dr. Dhawan, it is clear that
Section 33B makes distinction on the grounds of “class of
establishments” or “class of persons who frequent the
establishment” and not on the form of dance. He
Page 72
- 72 - reiterates the submission that if dance can be permitted in
exempted institutions it cannot be banned in the
prohibited establishments. He submitted that treating
establishments entitled to a performance licence
differently, even though they constitute two distinct
classes would be discriminatory as also arbitrary,
considering the object of the Act and the same being
violative of Article 14 of the Constitution of India.
Answering the submission on burden of proof with regard
to the reasonableness of the restriction, Dr. Dhawan
submits that the burden of showing that the recourse to
Article 19(6) is permissible lies upon the State and not on
the citizen, he relies on the judgment of this Court in M/s.
Laxmi Khandsari & Ors. Vs. State of U.P. & Ors. 33
77. Relying on the Narendra Kumar & Ors. Vs. Union of
India & Ors.34, he submitted that the total prohibition in
Section 33A must satisfy the test of Article 19(6) of the
Constitution. Reliance is placed on a number of judgments
to which we have made a reference earlier. Dr. Dhawan
further emphasised that the reports relied upon by the
State would not give a justification for enacting the
33 (1981) 2 SCC 600 34 (1960) 2 SCR 375
Page 73
- 73 - impugned legislation. He points out that the study
conducted by Shubhada Chaukar for Vasantrao Bhagwat
Memorial Fellowship entitled “Problems of Mumbai Bar
girls” is based on conversations with 50 girls. According to
Dr. Dhawan, this report is thoroughly unreliable. The
report itself indicates that there are about one lakh bar
girls in Mumbai-Thane Region, therefore, interview of 50
girls would not be sufficient to generate any reliable data.
The report also states that there are about 1000-1200
bars, but it is based on interaction with seven bar owners.
Even then the report does not suggest complete
prohibition but suggests a framework which “regulates”
the functioning of bars, performances by singers, dancers
etc. Similarly, the Prayas Report cannot be relied upon.
The study was, in fact, done after the ban was imposed by
the State Government. Even this report indicates that after
the ban there was urgent need to find alternate source of
livelihood for these girls. There was no facility of education
for the children. Even this report finds that the families
from which these girls come are economically weak. Six
percent of minor children comprise the dancing
population. They are not provided any specialized training
to be bar dancers. They do not live in self owned houses.
Page 74
- 74 - The SNDT Report clearly states that the study is based on
interaction with 500 girls from 50 bars. The report
indicates that there are a number of prevalent myths
which are without any basis. It is pointed out that,
according to the report, the following are the myths :-
1. It is an issue of trafficking from other States and countries.
2. 75% dancers are from Bangladesh.
3. Only 3% are dancers from Maharashtra.
4. Bar culture is against the tradition of Maharashtra.
5. Girls who dance are minors.
6. Bar Dancers hide their faces.
7. Girls don’t work hard.
8. Bar Girls can be rehabilitated in Call Centers.
9. Dancing in Bars is sexual exploitation.
10. Girls are forced into sex work.
11. Dance bars are vulgar and obscene.
12. Ban will solve all these problems.
78. The study, in fact, recommends that the dance bars
should not be banned. There should be regularization of
working conditions of bar dancers. There should be
monitoring and prevention of entry of children into these
Page 75
- 75 - establishments. There should be protection against forced
sexual relations and harassments. There should be
security of earning, medical benefits and protection from
unfair trade practices. The report recommends that there
is a need for development that increases rather than
reduces options for women. The report also indicates that
the ban had an adverse impact in that respect. It will lead
to women becoming forced sex workers. The second
report of SNDT is based on empirical interviews. It
recommends that the ban imposed should be lifted
immediately. Dr. Dhawan has further elaborated the
shortcomings of the Prayas Report. He has also
emphasised that both the SNDT and Prayas Report
substantiate the fact that dancers were the sole bread
winners in their families earning approximately Rs.5,000/-
to Rs.20,000/- per month. They were supporting large
families in Mumbai as well as in their native places. After
the ban, these families are left without a source of income
and have since then been rendered destitute. He also
points out that the SNDT study indicates that many
dancers came from environments/employments where
they had been exploited (maid servants, factory workers,
etc.). Most of these women had taken employment as
Page 76
- 76 - dancers in view of the fact that it afforded them financial
independence and security. The SNDT Report points out
that not a single bar dancer has ever made any complaint
about being trafficked. The reports, according to Dr.
Dhawan, clearly indicate that complete prohibition is not
the solution and regulation is the answer.
79. Dr. Dhawan then submitted that the conclusions
recorded by the High Court on equality and exploitation
need to be affirmed by this Court. He has submitted that
to determine the reasonableness of the restriction, the
High Court has correctly applied the direct and inevitable
effect test. He seeks support for the submission, by
making a reference to the observations made by this Court
in Rustom Cavasjee Cooper Vs. Union of India 35 and
Maneka Gandhi Vs. Union of India & Anr. 36 , he
emphasised that the direct operation of the Act upon the
rights forms the real test. The principle has been described
as the doctrine of intended and real effect or the direct
and inevitable effect, in the case of Maneka Gandhi
(supra). Dr. Dhawan also emphasised that dancing is
covered by Article 19(1)(a) even though it has been held
35 (1970) 1 SCC 248 36 (1978) 1 SCC 248
Page 77
- 77 - by the High Court that it is not an expression of dancers
but their profession. He relied on the observations of this
Court in Bharat Bhawan Trust Vs. Bharat Bhawan
Artists’ Association & Anr. 37 wherein it is held that the
acting done by an artist is not done for the business. It is
an expression of creative talent, which is a part of
expression.
80. Illustrations submitted by Dr. Dhawan are that the
legislation cannot be saved even by adopting the doctrine
of proportionality which requires adoption of the least
invasive approach. Dr. Dhawan has reiterated that the
suggestions made by the Committee pursuant to the
resolution dated 19th December, 2002 ought to
be accepted. According to Dr. Dhawan, acceptance of such
suggestions would lead to substantial improvement. If the
State really seeks to control obscene bar dancing, he
submitted that the solution can be based on ensuring
that:- bar girls are unionized; there is adequate protection
to the girls and more involvement of the workers in self
improvement and self regulation. Dr. Dhawan does not
agree with Mr. Gopal Subramanium that this should be
37 (2001) 7 SCC 630
Page 78
- 78 - treated as a case of trafficking with complicated crisis
centric approach.
81. Mr. Anand Grover, learned senior counsel has rebutted
the factual submissions made by the appellants. He
submits that the State has wrongly mentioned before the
court that women who dance in the bar are trafficked or
compelled to dance against their will and that the
significant number of dancers are minor or under the age
of 18 years; that the majority of dancers are from states
outside Maharashtra which confirms the allegation of inter-
state trafficking; that dancing in bars is a gateway to
prostitution; that bar dancing is associated with crime and
breeds criminality; that the conditions of dance bars are
exploitative and dehumanizing for the women. Lastly, that
bar dancing contributes to social-ills and illicit affairs
between dancers and the male visitors break up of family
and domestic violence against wives of men visiting the
dance bars. According to Mr. Grover, the aforesaid
assertions are founded on incorrect, exaggerated or
overstated claims. Learned senior counsel has also
indicated that there is great deal of fudging of figures by
police with regard to complaints and cases registered
Page 79
- 79 - under the dance bars to substantiate their contentions. He
has relied on the official data on the incidence of
trafficking crimes from the National Crime Records Bureau
report for the year 2004-2011 to show that there is no
nexus between dance bars and trafficking in women.
Learned senior counsel has reiterated the submission that
Section 33A and Section 33B of the Bombay Police Act
violate Article 14 of the Constitution. He has relied on the
judgment of this Court in D.S. Nakara & Ors. Vs. Union
of India 38 . Learned senior counsel also reiterated that the
classification between the establishment under Section
33A and Section 33B is unreasonable.
82. The High Court, according to the learned senior counsel,
has wrongly accepted the explanation given by the
appellants in their affidavits that the classification is based
on the type of dance performed in the establishments.
This, according to learned senior counsel, is contrary to
the provisions contained in the aforesaid sections. He
reiterated the submissions that the distinction between
the establishments is based not on the type of dance
performance but on the basis of class of such
establishments. He makes a reference to the affidavit in 38 (1983) 1 SCC 305
Page 80
- 80 - reply filed in Writ Petition No.2450 of 2005 at paragraph
33 inter alia stated as follows :-
“Even otherwise five star hotels are class themselves and can’t be compared with popularly known dance bars….the persons visiting these hotels or establishments referred therein above stand on different footing and can’t be compared with the people who attend the establishments which are popularly known as dance bar. They belong to different strata of society and are a class by themselves.”
83. These observations, according to learned counsel, are
contrary to the decision of this Court in Sanjeev Coke
Manufacturing Company Vs. M/s Bharat Coking Coal
Limited & Anr. 39 Mr. Grover has also reiterated the
submission that classification between Sections 33A and
33B establishments has no rational nexus with the object
sought to be achieved by the impugned legislation. He
submits that whereas Section 33A prohibits any kind or
type of dance performance in eating house, permit room
or beer bar, i.e., dance bars, Section 33B allows all types
and kinds of dances in establishments covered under
Section 33B. Learned senior counsel further submits that
the object of the impugned legislation is to protect women
from exploitation by prohibiting dances, which were of
indecent, obscene and vulgar type, derogatory to the
39 (1983) 1 SCC 147
Page 81
- 81 - dignity of women and likely to deprave, corrupt or injure
the public morality, or morals. This is belied by the fact
that all kinds of dances are permitted in the exempted
establishments covered under Section 33B. He has also
given the example that most of the Hindi film songs or
even dancing in discos are much more sexually explicit
than the clothes worn by the bar dancers.
84. Learned senior counsel further submitted that
exploitation of women is not limited only to dance bar.
Such exploitation exists in all forms of employment
including factory workers, building site workers,
housemaids and even waitresses. In short, he reiterated
the submission that the legislation does not advance the
objects and reasons stated in the amendment Act. Mr.
Grover further submitted that the impugned law violates
the principle of proportionality. He has pointed out that
gender stereotyping is also palpable in the solution crafted
by the legislature. The impugned statute does not affect a
man’s freedom to visit bars and consume alcohol, but
restricts a woman from choosing the occupation of
dancing in the same bars. The legislation, patronizingly,
seeks to ‘protect’ women by constraining their liberty,
Page 82
- 82 - autonomy and self-determination. Mr. Grover has also
reiterated the submission that Section 33A is violative of
Article 19(1)(a) of the Constitution. According to Mr.
Grover, restriction imposed on the freedom of expression
is not justified under Article 19(6) of the Constitution. He
submits that dancing in eating houses, permit rooms or
beer bars is not inherently dangerous to public interest.
Therefore, restrictions on the freedom of speech and
expression are wholly unwarranted. Mr. Grover also
emphasised that dancing is not inherently dangerous or
pernicious and cannot be treated akin to trades that are
res extra commercium. Bar dancers, therefore, have a
fundamental right to practice and pursue their
profession/occupation of dancing in eating houses, beer
bars and permit rooms. The social evils projected by the
appellants, according to Mr. Grover, are related to
serving and drinking of alcohol and not dancing. Therefore,
there was no rational nexus in the law banning all types of
dances. He also emphasised that the women can be
allowed to work as waitresses to serve liquor and alcoholic
drinks. There could be no justification for banning the
performance of dance by them. Mr. Grover also submitted
that the ban contained in Section 33A violates Article 21 of
Page 83
- 83 - the Constitution. He submits that the right to livelihood is
an integral part of the right to life guaranteed under Article
21 of the Constitution. The deprivation of right to
livelihood can be justified if it is according to procedure
established by law under Article 21. Such a law has to be
fair, just and reasonable both substantively and
procedurally. The impugned law, according to Mr. Grover,
does not meet the test of substantive due process. It does
not provide any alternative livelihood options to the
thousands of bar dancers who have been deprived of their
legitimate source of livelihood. In the name of protecting
women from exploitation, it has sought to deprive more
than 75,000 women and their families from their
livelihoods and their only means of subsistence. Mr. Grover
has submitted that there is no viable rehabilitation or
compensation provision offered to the bar dancers, in
order to tide over the loss of income and employment
opportunities. According to learned senior counsel, in the
last 7 years, the impact of the prohibition has been
devastating on the lives of the bar dancers and their
families. This has deprived the erstwhile bar dancers of a
life with dignity. In the present context, the dignity of bar
dancers (of persons) and dignity of dancing (work) has
Page 84
- 84 - been conflated in a pejorative way. According to Mr.
Grover, the bar dancing in establishments covered under
Section 33A has been demeaned because the dancers
therein hail from socially and economically lower castes
and class. It is a class based discrimination which would
not satisfy the test of Article 14.
85. Lastly, he has submitted that the plea of trafficking
would not be a justification to sustain the impugned
legislation. In fact, trafficking is not even mentioned in the
Statement of Objects and Reasons, it was mentioned for
the first time in the affidavit filed by the State in reply to
the writ petition. According to learned senior counsel, the
legislation has been rightly declared ultra vires by the High
Court.
86. We have considered the submissions made by the
learned senior counsel for the parties. We have also
perused the pleadings and the material placed before us.
87. The High Court rejected the challenge to the impugned
Act on the ground that the State legislature was not
competent to enact the amendment. The argument was
Page 85
- 85 - rejected on the ground that the amendment is
substantially covered by Entries 2, 8, 33 and 64 of List II.
The High Court further observed that there is no
repugnancy between the powers conferred on the Centre
and the State under Schedule 7 List II and III of the
Constitution of India. The High Court also rejected the
submissions that the proviso to Section 33A (2) amounts
to interference with the independence of the judiciary on
the ground that the legislature is empowered to regulate
sentencing by enactment of appropriate legislation. Such
exercise of legislative power is not uncommon and would
not interfere with the judicial power in conducting trial and
rendering the necessary judgment as to whether the guilt
has been proved or not. The submission that the affidavit
filed by Shri Youraj Laxman Waghmare, dated 1.10.2005,
cannot be considered because it was not verified in
accordance with law was rejected with the observations
that incorrect verification is curable and steps have been
taken to cure the same. The submissions made in Writ
Petition 2450 of 2005 that the amendment would not
apply to eating houses and would, therefore, not be
applicable in the establishments of the petitioners therein
was also rejected. It was held that the “place of public
Page 86
- 86 - interest” includes eating houses which serve alcohol for
public consumption. It was further observed that the
amendment covered even those areas in such eating
houses where alcohol was not served. The High Court also
rejected the challenge to the amendment that the same is
in violation of Article 15(1) of the Constitution of India. It
has been observed that dancing was not prohibited in the
establishments covered under Section 33B only on the
ground of sex. What is being prohibited is dancing in
identified establishments. The Act prohibits all types of
dance in banned establishments by any person or persons.
There being no discrimination on the basis of gender, the
Act cannot be said to violate Article 15(1) of the
Constitution.
88. The High Court has even rejected the challenge to the
impugned amendment on the ground that the ban
amounts to an unreasonable restriction, on the
fundamental right of the bar owners and bar dancers, of
freedom of speech and expression guaranteed under
Article 19(1)(a). The submission was rejected by applying
the doctrine of pith and substance. It has been held by the
High Court that dance performed by the bar dancers can
Page 87
- 87 - not fall within the term “freedom of speech and
expression” as the activities of the dancers are mainly to
earn their livelihood by engaging in a trade or occupation.
Similarly, the submission that the provision in Section 33A
was ultra vires Article 21 of the Constitution of India was
rejected, in view of the ratio of this Court, in the case of
Sodan Singh & Ors. Vs. New Delhi Municipal
Committee & Ors. 40 wherein it is observed as follows :-
“We do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion, Article 21 is not attracted in a case of trade or business – either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together.”
89. Since, no counter appeal has been filed by any of the
respondents challenging the aforesaid findings, it would
not be appropriate for us to opine on the correctness or
otherwise of the aforesaid conclusions.
90. However in order to be fair to learned senior counsel for
the respondents, we must notice that in the written
submissions it was sought to be argued that in fact the
amendments are also unconstitutional under Articles
15(1), 19(1)(a) and 21. Dr. Dhawan has submitted that the
High Court has erroneously recorded the finding that the 40 (1989) 4 SCC 155
Page 88
- 88 - dancing in a bar is not an expression of dancers but their
profession, and, therefore, it can not get the protection of
Article 19(1)(a). Similarly, he had submitted that the High
Court in the impugned judgment has erroneously held that
the challenge to the amendment under Article 21 is too
remote. The respondents, therefore, would invite this
Court to examine the issue of “livelihood” under Article
142 of the Constitution of India being “question of law of
general public importance. According to Dr. Dhawan, the
High Court ought to have protected the bar dancers under
Articles 19(1)(a) and 21 also. As noticed earlier, Mr.
Rohatgi and Mr. Grover had made similar submissions. We
are, however, not inclined to examine the same in these
proceedings. No separate appeals have been filed by the
respondents specifically raising a challenge to the
observations adverse to them made by the High Court. We
make it very clear that we have not expressed any opinion
on the correctness or otherwise of the conclusions of the
High Court with regard to Sections 33A and 33B not being
ultra vires Articles 15(1), 19(1)(a) and Article 21. We have
been constrained to adopt this approach:
1) Because there was no challenge to the conclusions of the High Court in appeal by respondents.
Page 89
- 89 -
2) The learned senior counsel of the appellants had no occasion to make submissions in support of the conclusions recorded by the High Court.
3) We are not inclined to exercise our jurisdiction under Article 142, as no manifest injustice has been caused to the respondents. Nor can it be said that the conclusions recorded by the High Court are palpably erroneous so as to warrant interference, without the same having been challenged by the respondents. We, therefore, decline the request of Dr. Rajeev Dhawan.
91. This now brings us to the central issue as to whether
the findings recorded by the High Court that the impugned
amendment is ultra vires Article 14 and 19(1)(g) suffers
from such a jurisdictional error that they cannot be
sustained.
Is the impugned legislation ultra vires Article 14?
92. Before we embark upon the exercise to determine as to
whether the impugned amendment Act is ultra vires
Article 14 and 19(1)(g), it would be apposite to notice the
well established principles for testing any legislation
before it can be declared as ultra vires. It is not necessary
for us to make a complete survey of the judgments in
Page 90
- 90 - which the various tests have been formulated and re-
affirmed. We may, however, make a reference to the
judgment of this Court in Budhan Choudhry Vs. State of
Bihar41, wherein a Constitution Bench of seven Judges of
this Court explained the true meaning and scope of Article
14 as follows :-
“It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”
93. The aforesaid principles have been consistently adopted
and applied in subsequent cases. In the case of Ram
Krishna Dalmia (supra), this Court reiterated the
principles which would help in testing the legislation on
the touchstone of Article 14 in the following words :
“(a) That a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him
41 AIR 1955 SC 191
Page 91
- 91 - and not applicable to others, that single individual may be treated as a class by himself
(b) That there is always presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c) That it must he presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can he conceived existing at the time of the legislation; and
(f) That while good faith and knowledge of the existing conditions on the part of the legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
(Italics are ours)
94. These principles were reiterated by this Court in
Shashikant Laxman Kale (supra). The relevant
observations have already been noticed in the earlier part
of the judgment.
Page 92
- 92 - 95. The High Court has held that the classification under
Sections 33A and 33B was rational because the type of
dance performed in the establishments allowed them to be
separated into two distinct classes. It is further observed
that the classification does not need to be scientifically
perfect or logically complete.
96. The High Court has, however, concluded that
classification by itself is not sufficient to relieve a statute
from satisfying the mandate of the equality clause of
Article 14. The amendment has been nullified on the
second limb of the twin test to be satisfied under Article 14
of the Constitution of India that the amendment has no
nexus with the object sought to be achieved. Mr.
Subramanium had emphasised that the impugned
enactment is based on consideration of different factors,
which would justify the classification. We have earlier
noticed the elaborate reasons given by Mr. Subramanium
to show that the dance performed in the banned
establishments itself takes a form of sexual propositioning.
There is revenue sharing generated by the tips received
by the dancers. He had also emphasised that in the
banned establishment women, who dance are not
Page 93
- 93 - professional dancers. They are mostly trafficked into
dancing. Dancing, according to him, is chosen as a
profession of last resort, when the girl is left with no other
option. On the other hand, dancers performing in the
exempted classes are highly acclaimed and established
performer. They are economically independent.
Such performers are not vulnerable and, therefore, there
is least likelihood of any indecency, immorality or
depravity. He had emphasised that classification to be
valid under Article 14 need not necessarily fall within an
exact or scientific formula for exclusion or inclusion of
persons or things. [See: Welfare Association, A.R.P.,
Maharashtra (supra)] There are no requirements of
mathematical exactness or applying doctrinaire tests for
determining the validity as long as it is not palpably
arbitrary. (See: Shashikant Laxman Kale & Anr.
(supra)).
97. We have no hesitation in accepting the aforesaid
proposition for testing the reasonableness of the
classification. However, such classification has to be
evaluated by taking into account the objects and reasons
of the impugned legislation; (See: Ram Krishna
Page 94
- 94 - Dalmia’s case supra). In the present case, judging the
distinction between the two sections upon the aforesaid
criteria cannot be justified.
98. Section 33(a)(i) prohibits holding of a performance of
dance, of any kind or type, in any eating house, permit
room or beer bar. This is a complete embargo on
performance of dances in the establishment covered
under Section 33(a)(i). Section 33(a) contains a non-
obstante clause which makes the section stand alone and
absolutely independent of the act and the rules. Section
33(a)(ii) makes it a criminal offence to hold a dance
performance in contravention of sub-section(i).
On conviction, offender is liable to punishment for 3 years,
although, the Court may impose a lesser punishment of 3
months and fine, after recording special reasons for the
same. We are in agreement with the submission of Dr.
Dhawan that it is a particularly harsh provision. On the
other hand, the establishments covered under Section 33B
enjoy complete exemption from any such restrictions. The
dance performances are permitted provided the
establishments comply with the applicable statutory
provisions, Bye-Laws, Rules and Regulations. The
Page 95
- 95 - classification of the establishments covered under
Sections 33A and 33B would not satisfy the test of equality
laid down in the case of State of Jammu and Kashmir
Vs. Shri Triloki Nath Khosa & Ors.42, wherein it was
observed as under:
“Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.”
99. Further, this Court in E.V. Chinnaiah Vs. State of A.P.
& Ors. 43 held that:
“Legal constitutional policy adumbrated in a statute must answer the test of Article 14 of the Constitution of India. Classification whether permissible or not must be judged on the touchstone of the object sought to be achieved.”
100. Learned senior counsel for the appellants have sought
to justify the distinction between two establishments, first
of all as noticed earlier, on the basis of type of dance. It
was emphasised that the dance performed in the
prohibited establishments, itself takes a form of sexual
propositioning. It was submitted that it is not only just the
type of dance performed but the surrounding
circumstances which have been taken into consideration
in making the distinction. The distinction is sought to be 42 (1974) 1 SCC 19 43 (2005) 1 SCC 394
Page 96
- 96 - made under different heads which we shall consider
seriatim. It is emphasised that in the banned
establishments, the proximity between the dancing
platform and the audience is larger than at the banned
establishments. An assumption is sought to be made from
this that there would hardly be any access to the dancers
in the exempted establishments as
opposed to the easy access in the banned or prohibited
establishments. Another justification given is that the
type of crowd that visits the banned establishments is also
different from the crowd that visits the exempted
establishments. In our opinion, all the aforesaid reasons
are neither supported by any empirical data nor common
sense. In fact, they would be within the realm of “myth”
based on stereotype images. We agree with the
submission made by the learned counsel for the appellant,
Mr. Mukul Rohtagi and Dr. Dhawan that the distinction is
made on the grounds of “classes of establishments” or
“classes of persons, who frequent the establishment.” and
not on the form of dance. We also agree with the
submission of the learned senior counsel for the
respondents that there is no justification that a dance
permitted in exempted institutions under Section 33B, if
Page 97
- 97 - permitted in the banned establishment, would be
derogatory, exploitative or corrupting of public morality.
We are of the firm opinion that a distinction, the
foundation of which is classes of the establishments and
classes/kind of persons, who frequent the establishment
and those who own the establishments can not be
supported under the constitutional philosophy so clearly
stated in the Preamble of the Constitution of India and the
individual Articles prohibiting discrimination on the basis of
caste, colour, creed, religion or gender. The Preamble of
the Constitution of India as also Articles 14 to 21, as rightly
observed in the Constitutional Bench Judgment of this
Court in I.R. Coelho (supra), form the heart and soul of
the Constitution. Taking away of these rights of equality by
any legislation would require clear proof of the justification
for such abridgment. Once the respondents had given
prima facie proof of the arbitrary classification of the
establishments under Sections 33A and 33B, it was duty of
the State to justify the reasonableness of the classification.
This conclusion of ours is fortified by the observations in
M/s. Laxmi Khandsari (supra), therein this Court
observed as follow:
“14. We, therefore, fully agree with the contention advanced by the petitioners that where there is a
Page 98
- 98 - clear violation of Article 19(1)(g), the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. This proposition has not been disputed by the counsel for the respondents, who have, however, submitted that from the circumstances and materials produced by them the onus of proving that the restrictions are in public interest and are reasonable has been amply discharged by them.”
101. In our opinion, the appellants herein have failed to
satisfy the aforesaid test laid down by this court. The
Counsel for the appellant had, however, sought to
highlight before us the unhealthy practice of the
customers showering money on the dancers during the
performance, in the prohibited establishments. This
encourages the girls to indulge in unhealthy competition
to create and sustain sexual interest of the most favoured
customers. But such kind of behaviour is absent when the
dancers are performing in the exempted establishments. It
was again emphasised that it is not only the activities
performed in the establishments covered under Section 33
A, but also the surrounding circumstances which are
calculated to produce an illusion of easy access to women.
The customers who would be inebriated would pay little
heed to the dignity or lack of consent of the women. This
conclusion is sought to be supported by a number of
Page 99
- 99 - complaints received and as well as case histories of girl
children rescued from the dance bars. We are again not
satisfied that the conclusions reached by the state are
based on any rational criteria. We fail to see how exactly
the same dances can be said to be morally acceptable in
the exempted establishments and
lead to depravity if performed in the prohibited
establishments. Rather it is evident that the same dancer
can perform the same dance in the high class hotels,
clubs, and gymkhanas but is prohibited of doing so in the
establishments covered under Section 33A. We see no
rationale which would justify the conclusion that a dance
that leads to depravity in one place would get converted
to an acceptable performance by a mere change of venue.
The discriminatory attitude of the state is illustrated
by the fact that an infringement of section 33A(1) by an
establishment covered under the aforesaid provision
would entail the owner being liable to be imprisoned for
three years by virtue of section 33A(2). On the other hand,
no such punishment is prescribed for establishments
covered under Section 33B. Such an establishment would
merely lose the licence. Such blatant discrimination cannot
possibly be justified on the criteria of reasonable
Page 100
- 100 - classification under Article 14 of the Constitution of India.
Mr. Subramaniam had placed strong reliance on the
observations made by the Court in the State of Uttar
Pradesh Vs. Kaushailiya & Ors. (supra), wherein it was
observed as follows:
“7. The next question is whether the policy so disclosed offends Article 14 of the Constitution. It has been well settled that Article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe Article 14 of the Constitution if the classification is founded on an intelligible differentia and the said differentia has a rational relation to the object sought to be achieved by the said law. The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not so dangerous to public health or morals as a prostitute who lives in a busy locality or in an over- crowded town or in a place within the easy reach of public institutions like religious and educational institutions. Though both sell their bodies, the latter is far more dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deporation. The object of the Act, as has already been noticed, is not only to suppress immoral traffic in women and girls, but also to improve public morals
Page 101
- 101 - by removing prostitute from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act.”
102. We fail to see how any of the above observations are of
relevance in present context. The so called distinction is
based purely on the basis of the class of the performer and
the so called superior class of audience. Our judicial
conscience would not permit us to presume that the class
to which an individual or the audience belongs brings with
him as a necessary concomitant a particular kind of
morality or decency. We are unable to accept the
presumption which runs through Sections 33A and 33B
that the enjoyment of same kind of entertainment by the
upper classes leads only to mere enjoyment and in the
case of poor classes; it would lead to immorality,
decadence and depravity. Morality and depravity
cannot be pigeon-holed by degrees depending upon the
classes of the audience. The aforesaid presumption is also
perplexing on the ground that in the banned
establishments even a non-obscene dance would be
treated as vulgar. On the other hand, it would be
presumed that in the exempted establishments any dance
is non-obscene. The underlying presumption at once puts
Page 102
- 102 - the prohibited establishments in a precarious position, in
comparison to the exempted class for the grant of a
licence to hold a dance performance. Yet at the same
time, both kinds of establishments are to be granted
licenses and regulated by the same restrictions,
regulations and standing provisions.
103. We, therefore, decline to accept the submission of
Mr. Subramaniam that the same kind of dances performed
in the exempted establishments would not bring about
sexual arousal in male audience as opposed to the male
audience frequenting the banned establishments meant
for the lower classes having lesser income at their
disposal. In our opinion, the presumption is elitist, which
cannot be countenanced under the egalitarian philosophy
of our Constitution. Our Constitution makers have taken
pains to ensure that equality of treatment in all spheres is
given to all citizens of this country irrespective of their
station in life. {See: Charanjit Lal Chowdhury Vs.
Union of India & Ors. (supra), Ram Krishna Dalmia’s
case (supra) and State of Uttar Pradesh Vs.
Kaushailiya & Ors. (supra)}. In our opinion, sections
Page 103
- 103 - 33A and 33B introduce an invidious discrimination which
cannot be justified under Article 14 of the Constitution.
104. The High Court, in our opinion, has rightly declined to
rely upon the Prayas and Shubhada Chaukar’s report. The
number of respondents interviewed was so miniscule as to
render both the studies meaningless. As noticed earlier,
the subsequent report submitted by SNDT University has
substantially contradicted the conclusions reached by the
other two reports. The situation herein was not similar to
the circumstances which led to the decision in the case of
Radice (supra). In that case, a New York Statute was
challenged as it prohibited employment of women in
restaurants in cities of first and second class between
hours of 10 p.m. and 6 a.m., on the ground of (1) due
process clause, by depriving the employer and employee
of their liberty to contract, and (2) the equal protection
clause by an unreasonable and arbitrary classification. The
Court upheld the legislation on the first ground that the
State had come to the conclusion that night work
prohibited, so injuriously threatens to impair women’s
peculiar and natural functions. Such work, according to the
State, exposes women to the dangers and menaces
Page 104
- 104 - incidental to night life in large cities. Therefore, it was
permissible to enable the police to preserve and promote
the public health and welfare. The aforesaid conclusion
was, however, based on one very important factor which
was that “the legislature had before it a mass of
information from which it concluded that night work is
substantially and especially detrimental to the health of
women.” In our opinion, as pointed out by the learned
counsel for the respondents, in the present case, there
was little or no material on the basis of which the State
could have concluded that dancing in the prohibited
establishments was likely to deprave, corrupt or injure the
public morality or morals.
105. The next justification for the so called intelligible
differentia is on the ground that women who perform in
the banned establishment are a vulnerable lot. They come
from grossly deprived backgrounds. According to the
appellants, most of them are trafficked into bar dancing.
We are unable to accept the aforesaid submission. A
perusal of the Objects and the Reasons would show that
the impugned legislation proceed on a hypothesis that
different dance bars are being used as meeting points of
Page 105
- 105 - criminals and pick up points of the girls. But the Objects
and Reasons say nothing about any evidence having been
presented to the Government that these dance bars are
actively involved in trafficking of women. In fact, this plea
with regard to trafficking of women was projected for the
first time in the affidavit filed before the High Court. The
aforesaid plea seems to have been raised only on the
basis of the reports which were submitted after the ban
was imposed. We have earlier noticed the extracts from
the various reports. In our opinion, such isolated
examples would not be sufficient to establish the
connection of the dance bars covered under section 33A
with trafficking. We, therefore, reject the submission of the
appellants that the ban has been placed for the protection
of the vulnerable women.
106. The next justification given by the learned counsel for
the appellants is on the basis of degree of harm which is
being caused to the atmosphere in the banned
establishments and the surrounding areas. Undoubtedly as
held by this Court in the Ram Krishna Dalmia’s case
(supra), the Legislature is free to recognize the degrees
of harm and may confine its restrictions to those cases
Page 106
- 106 - where the need is deemed to be clearest. We also agree
with the observations of the U.S. Court in Joseph
Patsone’s case (supra) that the state may direct its law
against what it deems the evil as it actually exists without
covering the whole field of possible abuses, but such
conclusion have to be reached either on the basis of
general consensus shared by the majority of the
population or on the basis of empirical data. In our opinion,
the State neither had the empirical data to conclude
that dancing in the prohibited establishment necessarily
leads to depravity and corruption of public morals nor was
there general consensus that such was the situation.
The three reports presented before the High Court in fact
have presented divergent view points. Thus, the
observations made in the case of Joseph Patsone
(supra) are not of any help to the appellant. We are also
conscious of the observations made by this court in case
of Mohd. Hanif Quareshi (supra), wherein it was held
that there is a presumption that the legislature
understands and appreciates the needs of its people and
that its laws are directed to problems made manifest by
experience and that its discriminations are based on
adequate grounds. In the present case, the appellant has
Page 107
- 107 - failed to give any details of any experience which would
justify such blatant discrimination, based purely on the
class or location of an establishment.
107. We are of the opinion that the State has failed to
justify the classification between the exempted
establishments and prohibited establishments on the basis
of surrounding circumstances; or vulnerability.
Undoubtedly, the legislature is the best judge to measure
the degree of harm and make reasonable classification but
when such a classification is challenged the State is duty
bound to disclose the reasons for the ostensible
conclusions. In our opinion, in the present case, the
legislation is based on an unacceptable presumption that
the so called elite i.e. rich and the famous would have
higher standards of decency, morality or strength of
character than their counter parts who have to content
themselves with lesser facilities of inferior quality in the
dance bars. Such a presumption is abhorrent to the
resolve in the Preamble of the Constitution to secure the
citizens of India. “Equality of status and opportunity and
dignity of the individual”. The State Government presumed
that the performance of an identical dance item in the
Page 108
- 108 - establishments having facilities less than 3 stars
would be derogative to the dignity of women and would be
likely to deprave, corrupt or injure public morality or
morals; but would not be so in the exempted
establishments. These are misconceived motions of a
bygone era which ought not to be resurrected.
108. Incongruously, the State does not find it to be
indecent, immoral or derogatory to the dignity of women if
they take up other positions in the same establishments
such as receptionist, waitress or bar tender. The women
that serve liquor and beer to customers do not arouse lust
in customers but women dancing would arouse lust. In our
opinion, if certain kind of dance is sensuous in nature and
if it causes sexual arousal in men it cannot be said to be
more in the prohibited establishments and less in the
exempted establishments. Sexual arousal and lust in men
and women and degree thereof, cannot be said to be
monopolized by the upper or the lower classes. Nor can it
be presumed that sexual arousal would generate different
character of behaviour, depending on the social strata of
the audience. History is replete with examples of crimes of
lust committed in the highest echelons of the society as
Page 109
- 109 - well as in the lowest levels of society. The High Court has
rightly observed, relying on the observations of this Court
in Gaurav Jain Vs. Union of India 44 , that “prostitution in
5 star hotels is a licence given to a person from higher
echelon”. In our opinion, the activities which are obscene
or which are likely to deprave and corrupt those whose
minds are open to such immoral influences, cannot be
distinguished on the basis as to whether they are
performing in 5 star hotels or in dance bars. The judicial
conscience of this Court would not give credence to a
notion that high morals and decent behaviour is the
exclusive domain of the upper classes; whereas vulgarity
and depravity is limited to the lower classes. Any
classification made on the basis of such invidious
presumption is liable to be struck down being wholly
unconstitutional and particularly contrary to Article 14 of
the Constitution of India.
Is the impugned legislation ultra vires Article 19(1)(g) –
109. It was submitted by the learned counsel for the
appellants that by prohibiting dancing under Section 33A,
no right of the bar owners for carrying on a
44 (1997) 8 SCC 114
Page 110
- 110 - business/profession is being infringed [See: Fertilizer
Corporation Kamgar Union (Regd.), Sindri & Ors.
(supra)]. The curbs are imposed by Section 33A and 33B
only to restrict the owners in the prohibited
establishments from permitting dance to be conducted in
the interest of general public. Since the dances conducted
in establishments covered under Section 33A were
obscene, they would fall in the category of res extra
commercium and would not be protected by the
fundamental right under Article 19(1)(g). The submission
is also sought to be supported by placing a reliance on the
reports of Prayas and Subhada Chaukar. The restriction is
also placed to curb exploitation of the vulnerability of the
young girls who come from poverty stricken background
and are prone to trafficking. In support of the submission,
the learned counsel relied on a number of judgments of
this Court as well as the American Courts, including
Municipal Corporation of the City of Ahmedabad
(supra), wherein it was held that the expression “in the
interest of general public” under Article 19(6) inter alia
includes protecting morality. The relationship between law
and morality has been the subject of jurisprudential
discourse for centuries. The questions such as: Is the
Page 111
- 111 - development of law influenced by morals? Does morality
always define the justness of the law? Can law be
questioned on grounds of morality? and above all, Can
morality be enforced through law?, have been subject
matter of many jurisprudential studies for over at least a
century and half. But no reference has been made to any
such studies by any of the learned senior counsel.
Therefore, we shall not dwell on the same.
110. Upon analyzing the entire fact situation, the High Court
has held that dancing would be a fundamental right and
cannot be excluded by dubbing the same as res extra
commercium. The State has failed to establish that the
restriction is reasonable or that it is in the interest of
general public. The High Court rightly scrutinized the
impugned legislation in the light of observations of this
Court made in Narendra Kumar (supra), wherein it was
held that greater the restriction, the more the need for
scrutiny. The High Court noticed that in the guise of
regulation, the legislation has imposed a total ban on
dancing in the establishments covered under Section 33A.
The High Court has also concluded that the legislation has
failed to satisfy the doctrine of direct and inevitable effect
Page 112
- 112 - [See: Maneka Gandhi’s case (supra)]. We see no
reason to differ with the conclusions recorded by the High
Court. We agree with Mr. Rohatgi and Dr. Dhawan that
there are already sufficient rules and regulations and
legislation in place which, if efficiently applied, would
control if not eradicate all the dangers to the society
enumerated in the Preamble and Objects and Reasons of
the impugned legislation.
111. The activities of the eating houses, permit rooms and
beer bars are controlled by the following regulations:
A. Bombay Municipal Corporation Act. B. Bombay Police Act, 1951. C. Bombay Prohibition Act, 1949. D. Rules for Licensing and Controlling Places of Public
Entertainment, 1953. E. Rules for Licensing and controlling Places of Public
Amusement other that Cinemas. F. And other orders are passed by the Government from
time to time.
112. The Restaurants/Dance Bar owners also have to obtain
licenses/permissions as listed below:
i. Licence and Registration for eating house under the Bombay Police Act, 1951.
ii. License under the Bombay Shops and Establishment Act, 1948 and the Rules thereunder.
Page 113
- 113 - iii. Eating House license under Sections 394, 412A, 313 of
the Bombay Municipal Corporation Act, 1888. iv. Health License under the Maharashtra Prevention of
Food Adulteration Rules, 1962. v. Health License under the Mumbai Municipal
Corporation Act, 1888 for serving liquor; vi. Performance License under Rules 118 of the
Amusement Rules, 1960 ; vii. Premises license under Rules 109 of the amusement
Rules; viii. License to keep a place of Public Entertainment under
Section 33(1), clause (w) and (y) of the Bombay Police Act, 1951 and the said Entertainment Rules;
ix. FL III License under the Bombay Prohibition Act, 1949 and the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or a Form “E” license under the Special Permits & Licenses Rules for selling or serving IMFL & Beer.
x. Suitability certificate under the Amusement Rules.
113. Before any of the licenses are granted, the applicant
has to fulfil the following conditions :
(i) Any application for premises license shall accompanied by the site-plan indicating inter-alia the distance of the site from any religious, educational institution or hospital.
(ii) The distance between the proposed place of amusement and the religious place or hospital or educational institution shall be more than 75 metres.
(iii) The proposed place of amusement shall not have been located in the congested and thickly populated area.
(iv) The proposed site must be located on a road having width of more than 10 metres.
Page 114
- 114 - (v) The owners/partners of the proposed place of
amusement must not have been arrested or detained for anti-social or any such activities or convicted for any such offenses.
(vi) The distance between two machines which are to be installed in the video parlour shall be reflected in the plan.
(vii) No similar place of public amusement exists within a radius of 75 metres. (b) The conditions mentioned in the license shall be observed throughout the period for which the license is granted and if there is a breach of any one of the conditions, the license is likely to be cancelled after following the usual procedure.
114. The aforesaid list, enactments and regulations are
further supplemented with regulations protecting the
dignity of women. The provisions of Bombay Police Act,
1951 and more particularly Section 33(1)(w) of the said
Act empowers the Licensing Authority to frame Rules
‘”licensing or controlling places of public amusement or
entertainment and also for taking necessary steps to
prevent inconvenience to residents or passers-by or for
maintaining public safety and for taking necessary steps in
the interests of public order, decency and morality.”
115. Rules 122 and 123 of the Amusement Rules, 1960 also
prescribe conditions for holding performances.
Page 115
- 115 - “ Rule 122 – Acts prohibited by the holder of a Performance Licence : No person holding a performance Licence under these Rules shall, in the beginning, during any interval or at the end of any performance, or during the course of any performance, exhibition, production, display or staging, permit or himself commit on the stage or any part of the auditorium :-
(a) any profanity or impropriety of language ;
(b) any indecency of dress, dance, movement or gesture;
Similar conditions and restrictions are also prescribed under the Performance Licence :
“The Licensee shall not, at any time before, during the course of or subsequent to any performance, exhibition, production, display or staging, permit or himself commit on the stage or in any part of the auditorium or outside it :
(i) any exhibition or advertisement whether by way of posters or in the newspapers, photographs of nude or scantily dressed women;
(ii) any performance at a place other than the place provided for the purpose;
(iii) any mixing of the cabaret performers with the audience or any physical contact by touch or otherwise with any member of the audience;
(iv) any act specifically prohibited by the rules.”
116. The Rules under the Bombay Police Act, 1951 have
been framed in the interest of public safety and social
welfare and to safeguard the dignity of women as well as
prevent exploitation of women. There is no material placed
on record by the State to show that it was not possible to
Page 116
- 116 - deal with the situation within the framework of the existing
laws except for the unfounded conclusions recorded in the
Preamble as well the Objects and Reasons. [See: State of
Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat
(supra)], wherein it is held that the standard of judging
reasonability of restriction or restrictions amounting to
prohibition remains the same, except that a total
prohibition must also satisfy the test that a lesser
alternative would be inadequate]. The Regulations framed
under Section 33(w) of the Bombay Police Act, more so
Regulations 238 and 242 provide that the licensing
authority may suspend or cancel a licence for any breach
of the license conditions. Regulation 241 empowers the
licensing authority or any authorised Police Officer, not
below the rank of Sub Inspector, to direct the stoppage of
any performance forthwith if the performance is found to
be objectionable. Section 162 of the Bombay Police Act
empowers a Competent Authority/Police
Commissioner/District Magistrate to suspend or revoke a
license for breach of its conditions. Thus, sufficient power
is vested with the Licensing Authority to safeguard any
perceived violation of the dignity of women through
obscene dances.
Page 117
- 117 -
117. From the objects of the impugned legislation and
amendment itself, it is crystal clear that the legislation was
brought about on the admission of the police that it is
unable to effectively control the situation in spite of the
existence of all the necessary legislation, rules and
regulations. One of the submissions made on behalf of the
appellants was to the effect that it is possible to control
the performances which are conducted in the
establishments fall within Section 33B; the reasons
advanced for the aforesaid only highlight the stereotype
myths that people in upper strata of society behave in
orderly and moralistic manner. There is no independent
empirical material to show that propensity of immorality or
depravity would be any less in these high class
establishments. On the other hand, it is the specific
submission of the appellants that the activities conducted
within the establishments covered under Section 33A have
the effect of vitiating the atmosphere not only within the
establishments but also in the surrounding locality.
According to the learned counsel for the appellants, during
dance in the bars dancers wore deliberately provocative
dresses. The dance becomes even more provocative and
Page 118
- 118 - sensual when such behaviour is mixed with alcohol. It has
the tendency to lead to undesirable results. Reliance was
placed upon State of Bombay Vs. R.M.D.
Chamarbaugwala & Anr. (supra), Khoday Distilleries
Ltd. & Ors. Vs. State of Karnataka & Ors. (supra),
State of Punjab & Anr. Vs. Devans Modern Breweries
Ltd. & Anr. (supra), New York State Liquor Authority
Vs. Dennis BELLANCA, DBA The Main Event, Et Al.
(supra), Regina Vs. Bloom (supra) to substantiate the
aforesaid submissions. Therefore, looking at the degree of
harm caused by such behaviour, the State enacted the
impugned legislation.
118. We are undoubtedly bound by the principles enunciated
by this Court in the aforesaid cases, but these are not
applicable to the facts and circumstances of the present
case. In Khoday Distilleries Ltd. (supra), it was held
that there is no fundamental right inter alia to do
trafficking in women or in slaves or to carry on business of
exhibiting and publishing pornographic or obscene films
and literature. This case is distinguishable because the
unfounded presumption that women are being/were
trafficked in the bars. The case of State of Punjab &
Page 119
- 119 - Anr. Vs. Devans Modern Breweries Ltd. & Anr.
(supra) dealt with liquor trade, whereas the present case
is clearly different. The reliance on New York State
Liquor Authority (supra) is completely unfounded
because in that case endeavour of the State was directed
towards prohibiting topless dancing in an establishment
licensed to serve liquor. Similarly, Regina Vs. Bloom
(supra) dealt with indecent performances in a disorderly
house. Hence, this case will also not help the appellants.
Therefore, we are not impressed with any of these
submissions. All the activities mentioned above can be
controlled under the existing regulations.
119. We do not agree with the submission of
Mr. Subramanium that the impugned enactment is a form
of additional regulation, as it was felt that the existing
system of licence and permits were insufficient to deal
with problem of ever increasing dance bars. We also do
not agree with the submissions that whereas exempted
establishments are held to standards higher than those
prescribed; the eating houses, permit rooms and dance
bars operate beyond/below the control of the regulations.
Another justification given is that though it may be
Page 120
- 120 - possible to regulate these permit rooms and dance bars
which are located within Mumbai, it would not be possible
to regulate such establishments in the semi-urban and
rural parts of the Maharashtra. If that is so, it is a sad
reflection on the efficiency of the Licensing/Regulatory
Authorities in implementing the legislation.
120. The end result of the prohibition of any form of dancing
in the establishments covered under Section 33A leads to
the only conclusion that these establishments have to shut
down. This is evident from the fact that since 2005, most if
not all the dance bar establishments have literally closed
down. This has led to the unemployment of over 75,000
women workers. It has been brought on the record that
many of them have been compelled to take up prostitution
out of necessity for maintenance of their families. In our
opinion, the impugned legislation has proved to be totally
counter productive and cannot be sustained being ultra
vires Article 19(1)(g).
121. We are also not able to agree with the submission of
Mr. Subramanium that the impugned legislation can still
be protected by reading down the provision. Undoubtedly,
Page 121
- 121 - this Court in the case of Government of Andhra
Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon
taking notice of the previous precedents has held that the
legislature must be given freedom to do experimentations
in exercising its powers, provided it does not clearly and
flagrantly violate its constitutional limits, these
observations are of no avail to the appellants in view of
the opinion expressed by us earlier. It is not possible to
read down the expression “any kind or type” of dance by
any person to mean dances which are obscene and
derogatory to the dignity of women. Such reading down
cannot be permitted so long as any kind of dance is
permitted in establishments covered under Section 33B.
122. We are also unable to accept the submission of
Mr. Subramanium that the provisions contained in Section
33A can be declared constitutional by applying the
doctrine of severability. Even if Section 33B is declared
unconstitutional, it would still retain the provision
contained in Section 33A which prohibits any kind of dance
by any person in the establishments covered under
Section 33A.
Page 122
- 122 - 123. In our opinion, it would be more appropriate that the
State Government re-examines the recommendations
made by the Committee which had been constituted by
the State Government comprising of a Chairman of AHAR,
Public and Police Officials and chaired by the Principal
Secretary (E.I.), Home Department. The Committee had
prepared a report and submitted the same to the State
Government. The State Government had in fact sent a
communication dated 16th July, 2004 to all District Judicial
Magistrates and Police Commissioner to amend the rules
for exercising control on Hotel Establishments presenting
dance programmes. The suggestions made for the
amendment of the Regulations were as follows :
(1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.
(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.
Page 123
- 123 - (3) Area of dance floor should be minimum 10 x 12 ft.
i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.
(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.
(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being granted.
124. Despite the directions made by the State Government,
the authorities have not taken steps to implement the
recommendations which have been submitted by AHAR.
On the contrary, the impugned legislation was enacted in
2005. In our opinion, it would be more appropriate to bring
Page 124
- 124 - about measures which should ensure the safety and
improve the working conditions of the persons working as
bar girls. In similar circumstances, this Court in the case of
Anuj Garg (supra) had made certain observations
indicating that instead of putting curbs on women’s
freedom, empowerment would be more tenable and
socially wise approach. This empowerment should reflect
in the law enforcement strategies of the State as well as
law modeling done in this behalf. In our opinion, in the
present case, the restrictions in the nature of prohibition
cannot be said to be reasonable, inasmuch as there could
be several lesser alternatives available which would have
been adequate to ensure safety of women than to
completely prohibit dance. In fact, a large number of
imaginative alternative steps could be taken instead of
completely prohibiting dancing, if the real concern of the
State is the safety of women.
125. Keeping in view the aforesaid circumstances, we are
not inclined to interfere with the conclusions reached by
the High Court. Therefore, we find no merit in these
appeals and the same are accordingly dismissed.
Page 125
- 125 - 126. All interim orders are hereby vacated.
…………………………CJI. [Altamas Kabir]
…………………………….J. [Surinder Singh Nijjar]
New Delhi; July 16, 2013.
Page 126
126
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2705 OF 2006
State of Maharashtra & Anr. … Appellants
Vs.
Indian Hotel & Restaurants Assn.
& Ors. … Respondents
WITH
Civil Appeal No. 2704 of 2006
and
Page 127
127
Civil Appeal No.5504 of 2013
[Arising out of S.L.P. (C) No. 14534 of 2006]
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Having had an opportunity of going through the
masterly exposition of the law in the crucible of
facts relating to the violation of the provisions
of Articles 19(1)(a), 19(1)(g) and 21 of the
Constitution read with the relevant provisions of
the Bombay Police Act, 1951, I wish to pen down
some of my thoughts vis-a-vis the problem arising
in all these matters requiring the balancing of
Page 128
128
equities under Articles 19(1)(g) and 21 of the
Constitution.
2. The expression “the cure is worse than the
disease” comes to mind immediately.
3. As will appear from the judgment of my learned
Brother, Justice Nijjar, the discontinuance of bar
dancing in establishments below the rank of three
star establishments, has led to the closure of a
large number of establishments, which has resulted
in loss of employment for about seventy-five
thousand women employed in the dance bars in
various capacities. In fact, as has also been
commented upon by my learned Brother, many of these
unfortunate people were forced into prostitution
merely to survive, as they had no other means of
survival.
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4. Of course, the right to practise a trade or
profession and the right to life guaranteed under
Article 21 are, by their very nature, intermingled
with each other, but in a situation like the
present one, such right cannot be equated with
unrestricted freedom like a run-away horse. As has
been indicated by my learned Brother, at the very
end of his judgment, it would be better to treat
the cause than to blame the effect and to
completely discontinue the livelihood of a large
section of women, eking out an existence by dancing
in bars, who will be left to the mercy of other
forms of exploitation. The compulsion of physical
needs has to be taken care of while making any laws
on the subject. Even a bar dancer has to satisfy
her hunger, provide expenses for her family and
meet day to day expenses in travelling from her
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residence to her place of work, which is sometimes
even as far as 20 to 25 kms. away. Although, it
has been argued on behalf of the State and its
authorities that the bar dancers have taken to the
profession not as an extreme measure, but as a
profession of choice, more often than not, it is a
Hobson's choice between starving and in resorting
to bar dancing. From the materials placed before
us and the statistics shown, it is apparent that
many of the bar dancers have no other option as
they have no other skills, with which they could
earn a living. Though some of the women engaged in
bar dancing may be doing so as a matter of choice,
not very many women would willingly resort to bar
dancing as a profession.
5. Women worldwide are becoming more and more
assertive of their rights and want to be free to
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make their own choices, which is not an entirely
uncommon or unreasonable approach. But it is
necessary to work towards a change in mindset of
people in general not only by way of laws and other
forms of regulations, but also by way of providing
suitable amenities for those who want to get out of
this trap and to either improve their existing
conditions or to begin a new life altogether.
Whichever way one looks at it, the matter requires
the serious attention of the State and its
authorities, if the dignity of women, as a whole,
and respect for them, is to be restored. In that
context, the directions given by my learned
Brother, Justice Nijjar, assume importance.
6. I fully endorse the suggestions made in
paragraph 123 of the judgment prepared by my
learned Brother that, instead of generating
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unemployment, it may be wiser for the State to look
into ways and means in which reasonable
restrictions may be imposed on bar dancing, but
without completely prohibiting or stopping the
same.
7. It is all very well to enact laws without
making them effective. The State has to provide
alternative means of support and shelter to persons
engaged in such trades or professions, some of whom
are trafficked from different parts of the country
and have nowhere to go or earn a living after
coming out of their unfortunate circumstances. A
strong and effective support system may provide a
solution to the problem.
8. These words are in addition to and not in
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derogation of the judgment delivered by my learned
Brother.
...................CJI. (ALTAMAS KABIR)
New Delhi Dated: July 16, 2013.