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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 576 OF 2016

INDIAN  HOTEL  AND  RESTAURANT ASSOCIATION (AHAR) & ANR. .....APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA & ORS. .....RESPONDENT(S)

W I T H

WRIT PETITION (CIVIL) NO. 24 OF 2017

A N D

WRIT PETITION (CIVIL) NO. 119 OF 2017

J U D G M E N T

A.K. SIKRI, J.

This batch of three Writ Petitions was heard together and is being

disposed of by this Common Judgment as similar issues and prayers

are raised in all these petitions.

2) The  instant writ  petitions have been preferred under Article 32 of the

Constitution of India, challenging certain provisions of the Maharashtra

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

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

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referred to as the ‘Act’) and also the Rules framed there under being the

Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and

Bar Rooms and Protection of Dignity of Women (Working therein) Rules,

2016 (hereinafter referred to as the ‘Rules’)  which,  as the Petitioners

submit,  violate the Fundamental  Rights of  the Petitioners guaranteed

under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of

India.  

3) The  petitioner  No.  1  in  Writ  Petition  (Civil)  No.  576  of  2016  is  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 and is duly registered under the Trade Unions Act. Petitioner

No. 2 is the secretary of petitioner No. 1 and is a citizen of India, who

runs a restaurant and bar.

The petitioner  in  Writ  Petition (Civil)  No.  24 of  2017,  R.R.  Patil

Foundation is a registered Union under the provisions of the Bombay

Public Trust Act and the President thereof has been authorised to file the

writ petition.   

The petitioner in Writ Petition (Civil) No. 119 of 2017 is the Bhartiya

Bargirls  Union,  registered  under  the  Trade  Union  Act,  1926  and

represented  through  its  Hony.  President.   The  petition  is  filed  in  a

representative capacity on behalf of a large number of women dancers,

singers and waitresses.

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4) Respondent  No.1  in  all  the  three  writ  petitions  is  the  State  of

Maharashtra. The other respondents in the three petitions comprise of

various departments/authorities of the State of Maharashtra.  

5) A brief historical description behind enacting this Act and the Rules is as

follows:

Any person intending to start an Eating House and Restaurant is

required to obtain permission from the Municipal Corporation under the

Mumbai  Municipal  Corporation  Act  as  also  the  Food  and  Drugs

Administration.  After a Grade-I licence is granted to the establishment,

and the establishment complies with the requirements under Rules 44

and 45 of  the Bombay Foreign Liquor Rules,  1953 framed under the

provisions of  the Bombay Prohibition Act,  1949,  the establishment  is

granted an FL III licence for sale of Indian Made Foreign Liquor (IMFL) in

the Restaurant.   Further, persons  desiring to  serve only Beer  in  the

Restaurant apply for a licence under the Special Permit and Licenses

Rules framed under the provisions of the Bombay Prohibition Act, 1949

and  are  granted  licenses  in  Form ‘E’  for  running  a  Beer  Bar.   The

persons having Eating Houses besides obtaining an FL III or Form ‘E’

licence under  the  provisions of  the relevant  Rules framed under  the

Bombay Prohibition Act, 1949, are required to have licence under the

Bombay Police Act, 1951, called the Public Entertainment Licence, from

respondent  No.2,  which  is  the  Licensing  Authority  under  the  Rules

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framed for Licensing and Controlling Places of Public Entertainment in

Greater  Mumbai,  1953.   It  is  stated  that  the  requirement  of  having

multiplicity of licenses is being done away by respondent No.1.  Further,

any restaurant owner desiring to have music and dance or either music

or  dance  in  the  restaurant  is  also  required  to  obtain  Premises  and

Performance  Licence  under  the  Rules  for  Licensing  and  Controlling

Places of Public Amusements (other than Cinemas) and Performances

for  Public  Amusement,  including  Melas  and  Tamasha’s  Rules,  1960

(hereinafter  referred  to  as  the  ‘Amusement  Rules’)  framed  by

respondent No.2 under the powers vested in him under Section 33 of

the  Maharashtra  Police  Act,  1951.   According  to  the  provisions  of

Section 33 of the Maharashtra Police Act, 1951, respondent No.2 i.e. the

Commissioner of  Police has been conferred with the power to frame

Rules.   The  Commissioner  of  Police  can  frame  Rules  for  not  only

licensing and controlling places of public amusement and entertainment

but  also for  taking  necessary steps to  prevent  inconvenience etc.  to

residents or passers-by or for maintaining public safety and for taking

necessary steps in the interests of public order, decency and morality.

The Commissioner of Police has accordingly framed Rules for Licensing

and  Controlling  Places  of  Public  Entertainment,  1953  and  the

Amusement Rules.  According to the provisions of Chapter 8 of the said

Amusement  Rules,  a  Premises  Licence  is  granted  after  all  the

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requirements prescribed under Rules 108 and 108(A) are complied with.

Chapter 9 of the said Amusement Rules prescribes all the conditions for

grant of a Performance Licence.  As per the petitioners, their members

have  been  granted  valid  licences  under  the  provisions  of  the  said

Entertainment Rules and Amusement Rules and have been carrying on

business  since  the  past  several  years  and  their  licences  have  been

renewed from time to time.  

6) As per the respondent State,  it  noticed that  prostitution rackets were

being  run  in  hotel  establishments  in  which  dance  programmes  were

being conducted.  Even such dance forms were observed as obscene

by  the  State.  This  resulted  in  the  formation  of  a  Committee  for

suggestions to  deal  with  aspects mentioned above.  After  considering

guidelines given by the aforesaid Committee and independent studies

on socio-economic situations of women involved in dance bars, Section

33A and 33B were added vide Bombay Police Amendment Act, 2005 in

Maharashtra  Police  Act,  1951,  (erstwhile  Bombay  Police  Act,  1951)

which prohibited any kind of  dance performance in an eating house,

permit room or beer bar. Section 33B provided an exception to Section

33A, in cases where the dance performance was held in a theatre, or a

club where entry was restricted to members only.   The said amendment

was struck down as unconstitutional by  High Court of Bombay and that

judgment of the High Court was upheld by this Court in the matter of

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State  of  Maharashtra  &  Anr.  v.  Indian  Hotel  and  Restaurants

Association & Ors.1 {hereinafter referred to as the ‘Indian Hotel and

Restaurants Association (1)’}

7) Thereafter, the State of Maharashtra introduced a fresh provision vide

amendment in the year 2014 referred to as Maharashtra Police (Second

Amendment)  Act,  2014  and  added  Section  33A to  the  Maharashtra

Police  Act,  1951,  while  Section 33B came to  be deleted.   A petition

bearing  Writ  Petition  (Civil)  No.793 of  2014 came to  be  filed  in  this

Court,  on  behalf  of  Indian  Hotel  and  Restaurants  Association  under

Article 32 of the Constitution of India, whereby the Maharashtra Police

(Second Amendment) Act, 2014 vide which vires of Section 33A, came

to be challenged on the ground of the same being violative of Article 14,

19 (1)(a), 19 (1)(g) and 21 of the Constitution of India.  This Court issued

notice in the above writ petition and respondent State of Maharashtra

filed a counter affidavit, thereby opposing the writ petition. This Court,

vide  order  dated  October  15,  2015,  stayed  the  operation  of  the

provisions enshrined under Section 33A(1) of the Act with a rider that no

performance  of  dance  shall  remotely  be  expressive  of  any  kind  of

obscenity.  It is, thereafter, that respondent No. 1 enacted the impugned

Act and the Rules, certain provisions whereof have been challenged in

these petitions.  In view of the developments, Writ Petition (Civil) No.

1 (2013) 8 SCC 519

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793 of 2014 was disposed of as infructuous.   

The impugned Act and the Rules:

8) The  Preamble  to  the  Act  mentions  that  it  is  an  Act  to  provide  for

prohibition of obscene dance in hotels, restaurants, bar rooms and other

establishments and to improve the conditions of work, protect the dignity

and  safety  of  women  in  such  places  with  a  view  to  prevent  their

exploitation.  The Act extends to the whole of the State of Maharashtra.

Section 2 of the Act provides definitions to certain terms and the relevant

among these are reproduced below:

"2(3)  “bar room” means a place, to which the owner or proprietor admits  the  public  and  where  dances  are  staged  by  or  at  the instance of the owner or proprietor of such establishment for the entertainment of customers;

(4)  “dancer” means any artist performing dance on the stage or in any part of the premises;

(8)  “obscene dance” means a dance that is obscene within the meaning of Section 294 of the Indian Penal Code and any other law for the time being in force and shall include a dance, -

(i)  which is designed only to arouse the prurient interest of the audience; and

(ii)   which  consists  of  a  sexual  act,  lascivious  movements, gestures for the purpose of sexual propositioning or indicating the availability  of  sexual  access to the dancer, or  in  the course of which, the dancer exposes his or her genitals or, if a female, is topless;

(10)  “place” includes a establishment, house, building, tent and any means of transport whether by sea, land or air;”

9) As per Section 3,  no person is entitled to start  hotel,  restaurant,  bar

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room or any other place where dances are staged, without obtaining a

licence under this  Act  and without complying with the conditions and

restrictions  imposed  by  the  Act  and  the  Rules.  Section  4  mentions

licensing  authority,  competent  to  grant  licence.   Section  5  stipulates

certain  conditions  which  are  to  be  fulfilled  in  the  absence  whereof

licensing authority is not  to grant  licence under the Act.   It  reads as

under:

"5.  The licensing authority shall not grant licence under this Act unless it is satisfied that,-

(a)  the conditions prescribed by this Act and the Rules have been complied with by the applicant,

(b)  adequate conditions of work and provisions for safety in respect of women employed in the hotel,  restaurant or bar room as prescribed have been provided, and

(c)  adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of the persons visiting such place.”

10) Section 6 lays down the procedure for grant of licence.  For this

purpose, any person desirous to obtain the licence will have to move an

application as per the format prescribed and fulfill the eligibility criteria as

prescribed.  As per sub-section (4) of Section 6 the licensing authority is

not  supposed  to  grant  licence  for  the  place  for  which  a  licence  for

Discotheque or Orchestra have been granted. Exact  language of this

sub-section (4) is as under:

"(4)   Notwithstanding  anything  contained  in  the  Maharashtra Police  Act,  no  licence  shall  be  granted  for  Discotheque  or

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Orchestra,  in  the  place for  which  the licence under  this  Act  is granted, nor a licence shall be granted under this Act for the place for  which  a  licence  for  Discotheque  or  Orchestra  has  been granted.”

11) Section 8 prescribes criminal and civil consequences for using the

place in contravention of Section 3 i.e. without obtaining the licence.  It is

to the following effect:

"8(1)  The owner or proprietor or manager or any person acting on his behalf, who uses the place in contravention of section 3 shall, on conviction, be punished with imprisonment for a term which may extend  to  five  years  or  fine  which  may extend to  rupees twenty-five lakhs, or with both; and in case of continuing offence, further fine of  rupees twenty-five thousand for each day during which the offence continues.

(2)  The owner or proprietor or manager or any person acting on his  behalf,  shall  not  allow  any  obscene  dance  or  exploit  any working woman for  any immoral  purpose in any place and the person committing such act shall, on conviction, be punished with imprisonment for a term which may extend to three years or a fine which may extend to rupees ten lakhs, or with both; and in case of continuing offence, further fine which may extend to rupees ten thousand for each day during which the offence continues.

(3)   The  offences  under  sub-sections  (1)  and  (2)  shall  be cognizable and non-bailable and triable by a Judicial Magistrate of the First Class.

(4)  No person shall throw or shower coins, currency notes or any article or anything which can be monetized on the stage or hand over personally or through any means coins, currency notes or any article or anything which can be monetized, to a dancer or misbehave or indecently behave with the working women or touch her person, in any place.  Any person who commits such act or abets  the  commission  of  such  acts  shall,  on  conviction,  be punished with imprisonment for a term which may extend to six months or a fine which may extend to rupees fifty thousand, or with both.

(5)   The  offence  punishable  under  sub-section  (4)  shall  be non-cognizable and bailable and triable by a Judicial Magistrate of the First Class.

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(6)  Any person who contravenes any of the provisions of this Act for  which  no  other  punishment  has  been  provided,  shall,  on conviction, be punished with imprisonment for a term which may extend  to  three  months  or  fine  which  may  extend  to  rupees twenty-five thousand, or with  both.”

 12) The provisions are also made for appeal, revision etc. against the

order of the licensing authority refusing to grant licence.  As per Section

12, Grievance Redressal Committee is to be constituted by the State

Government to ensure that the conditions of service of women working

in  the  hotel,  restaurant,  bar  rooms  and  establishment  to  which  the

provisions of this Act apply are duly observed.  This Committee is given

the task to redress the grievances of such women in such manner as

may be prescribed.

  13) We may mention here that challenge in these writ petitions is laid

to the provisions of Sections 2(8)(i), Section 6(4), Section 8(1)(2) and (4)

of the Act.   

14) Section 14 of the Act empowers the State Government to make

rules to carry out the purposes of the Act for which notification in the

Official Gazette is to be issued.  These rules are to be laid before each

House of the State Legislature.  Section 15 gives powers to the State

Government to issue orders in case any difficulty arises in giving effect

to the provisions of the Act.   

15) In exercise of powers conferred by Section 14 of the Act, Rules

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have been framed.  Rule 3 pertains to the application for licence and

lays down the conditions for making such an application.  It is couched

in the following language:  

"3.  Application for licence. - A person shall be entitled to obtain or hold a licence under these Rules, if he,-

(i)  has attained 21 years of age;

(ii)  is a citizen of India or a partner of partnership firm registered under the Indian Partnership Act, 1932 or a company registered under the Companies Act, 1956 or the Companies Act, 2013;

(iii)  possess a good character and antecedents and shall not have any history of criminal record in the past:

Provided that, the licensing authority shall consider the history  of  criminal  record  of  the  applicant  upto  ten  years before the date of application; and

(iv)  complies with the conditions specified in Part-A of the Schedule.”

16) Schedule attached to the Rules mentions the conditions which are

to be complied with.  Part A thereof stipulates those conditions which are

to  be  fulfilled  before  grant  of  licence  whereas  Part  B  stipulates  the

conditions  which  are  to  be  fulfilled  after  grant  of  licence.   It  is  not

necessary to reproduce all those conditions.   Since, condition Nos. 2

and 11 of Part A and condition Nos. 2, 6, 9, 12, 16, 17 and 20 of Part B

are  the  subject  matter  of  challenge  in  these  petitions,  we  are

reproducing these conditions hereinbelow:

"SCHEDULE General Conditions

PART-A

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Conditions to be complied before grant of Lincence

2.  One stage should not be less than 10ft. x 12ft. in size in bar room, with non-transparent partition between hotel, restaurant and bar room area.   If  the applicant  is holding permit  room licence then there shall be fixed partition between the permit room and dance room.

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11.   The  place  shall  be  at  least  one kilometer  away  from the educational and religious institutions.

PART-B

Conditions to be fulfilled after grant of Licence

2.  The working women, the dancers and waiters/ waitresses must be employed under a written contract on a monthly salary to be deposited  in  their  bank  accounts  (with  all  other  benefits  as required  by law,  including  provident  fund)  and  a  copy  of  such contract must be deposited with the licensing authority.

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6.  Customer shall not be permitted to thrown or shower coins, currency notes or any article or anything which can be monetized on  the  stage  in  the  direction  of  the  dancer.   Customers  may, however, make payment of a tip in appreciation of all the dancers by adding a sum to the amount of the bill.  Such tip shall be paid by  the  licensee  to  the  dancers  of  that  evening  and  under  no circumstances  such  sum  shall  be  deducted  from  the  monthly salary.

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9.   The bar  room where  dances are staged shall  be open for public only between 6.00 P.M. to 11.30 P.M.

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12.  No alcoholic beverage shall be served in the bar room where dances are staged.

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16.   The  Licensee  shall  ensure  that  the  employees  have  no criminal antecedents.

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17.  The Licensee shall not allow any modification or alternation in the premises without the permission of the licensing authority.

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20.  The Licensee shall ensure that all entrances of the bar room, other places of amusement or public entertainment and the area which falls under the definition of public place shall be covered by CCTV cameras and recording shall be preserved for 30 days for the  inspection  by  the  Competent  Police  Authority,  if  it  is requisitioned by him.”

 17) Before we advert to the arguments advanced by the counsel for

the petitioners on the basis of which validity of the aforesaid provisions

of the Act and the Rules is questioned, it would be necessary to discuss

the judgment of this Court rendered in 2013 in the case of Indian Hotel

and Restaurants Association (1).  The reason for this course of action

is  that  many arguments  of  the petitioners  proceed on the basis  that

some of the provisions in the Acts and the Rules are akin to Sections

33A and 33B which were inserted vide Bombay Police Amendment Act,

2005 in Maharashtra Police Act, 1951.  Even otherwise, the reasoning

contained  in  the  said  judgment  on  the  basis  of  which  the  aforesaid

provisions were struck down was heavily relied upon by the petitioners.   

18) Indian Hotel and Restaurants Association (1)  

As already noted above, any person intending to start an eating

house and restaurant  is  required  to  have  certain  licenses  under  the

Bombay  Police  Act  which  is  known  as  public  entertainment  licence.

Likewise,  any restaurant  owner  desirous  to  have  music  or  dance  or

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either  music  or  dance  in  the  restaurant  is  further  required  to  obtain

Premises and Performance Licence under the Amusement Rules. This

power to give licence is vested with the Commissioner of Police as per

Section 33 of the Maharashtra Police Act, 1951.  Sections 33A and 33B

were  added by Amendment  Act,  2005.   These  provisions  along with

Statement of Objects and Reasons are as under:

"Statement of Objects and Reasons  

21.  The Statement of Objects and Reasons clause appended to Bill No. 40 of 2005 as introduced in the Maharashtra Legislative Assembly on 14-6-2005 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 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

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that  such  dance  bars  are  used  as  meeting  points  by criminals and pick-up joints of girls 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  people's  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.

3. The Bill is intended to achieve the following objectives.

33-A.Prohibition of  performance of  dance in  eating house, permit room or beer bar and other consequential provisions. —(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, 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:

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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 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  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.

33-B.  Non-applicability of the provisions of Section 33-A in certain cases.—Subject to the other provisions of this Act, or any other law for the time being in force, nothing in Section 33-A 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.”

 19) It is the validity of these provisions which was the subject matter of

the  appeals  before  the  Supreme  Court  as  Bombay  High  Court  had

17

declared these provisions as unconstitutional, being violative of Articles

14, 19(1)(a) and 19(1)(g) of the Constitution.  It may be noted that in the

writ petitions filed in the High Court, these provisions were challenged as

violative of Articles 15(1) and 21 as well.  However, challenge on these

grounds was repelled by the High Court.  The High Court had held that

these  provisions  suffer  from  the  vice  of  arbitrariness  and,  therefore,

violative of Article 14 of the Constitution, as they provide for different

standards  of  morality  to  institutions  with  similar  activities  and  the

activities  in  Section  33A   establishments  are  less  obscene  but

nonetheless  the  classification  bears  no  nexus  to  the  object  of  the

Amendment.  It was also held that there is a violation of Article 19(1)(a)

as  dance  is  a  form  of  expression  and  the  impugned  enactment  is

unreasonable restriction which is not protective by Article 19(2) of the

Constitution.   Further,  these  provisions  amount  to  an  unreasonable

restriction on the 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 on their  right to

carry on their profession and bar dancers to carry on their profession.   

20) While  upholding  the  decision  of  the  High  Court  founded  on

invidious  discrimination  and,  as  such,  violative  of  Article  14  of  the

Constitution, this Court, inter alia, stated the following reasons:

18

"118.  The High Court, in our opinion, has rightly declined to rely upon the PRAYAS and Shubhada Chaukar's Reports. 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 is not similar to the circumstances which led to the decision in Radice [68 L Ed 690 : 264 US 292 (1924)] . 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  incidental  to nightlife 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: (Radice case [68 L Ed 690 : 264 US 292 (1924)] , L Ed p. 694)

“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.

119. 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  Reasons would  show  that  the  impugned  legislation  proceed  on  a hypothesis that different dance bars are being used as meeting points of 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

19

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 33-A with trafficking. We, therefore, reject  the submission of  the  appellants  that  the  ban has  been placed for the protection of the vulnerable women.

120. 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  Ram Krishna Dalmia case [AIR 1958 SC 538] , the legislature is free to recognise the degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. We also agree with the observations of the US Court in Patsone case [58 L Ed 539 : 232 US 138 (1914)] 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 viewpoints. Thus, the observations made in Patsone [58 L Ed 539 : 232 US 138 (1914)] are not of any help to the appellant. We are also conscious of the observations made by this Court in Mohd. Hanif Quareshi [AIR 1958 SC 731] , 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 failed to give any details of any experience which would justify such blatant discrimination, based purely on the class or location of an establishment.

121. 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,

20

morality or strength of character than their counterparts 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 establishments having facilities less than three 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 notions of a bygone era which ought not to be resurrected.

122.  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 bartender. The women who serve liquor and beer to customers do not  arouse lust  in customers but women dancing would arouse lust.  In  our opinion,  if  a  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  degrees  thereof,  cannot  be  said  to  be monopolised by the upper  or  the lower  classes.  Nor  can it  be presumed that sexual arousal would generate different character or  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 well as in the lowest levels of society.  The  High  Court  has  rightly  observed,  relying  on  the observations of this Court in Gaurav Jain v. Union of India [(1997) 8  SCC  114  :  1998  SCC  (Cri)  25]  that:  (Indian  Hotel  and Restaurants Assn. Case [(2006) 3 Bom CR 705] , Bom Cr p. 744, para 48)

“48. ‘27.… Prostitution in five-star hotels is a licence given to persons from higher echelons.’ (Gaurav Jain case [(1997) 8 SCC 114 : 1998 SCC (Cri) 25] , SCC p. 132, para 27)”

 21) Likewise,  arguments of  the State questioning the opinion of  the

High  Court  as  the  provisions  to  be  ultra  vires  Article  19(1)(g)  were

rejected by this Court with the following discussion:

"126. Upon analysing 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

21

State has failed to establish that the restriction is reasonable or that it is in the interest of general public. The High Court rightly scrutinised the impugned legislation in the light of observations of this Court made in Narendra Kumar [AIR 1960 SC 430 : (1960) 2 SCR 375] ,  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 33-A. The High Court has also concluded that the legislation has failed to satisfy the doctrine of direct and inevitable effect. (See  Maneka Gandhi case [(1978) 1 SCC 248] .) We see no reason to differ with the conclusions recorded by the High Court. We agree with Mr Rohatgi and Dr Dhavan 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 the Statement of Objects and Reasons of the impugned legislation.

127.  The activities of the eating houses, permit rooms and beer bars are controlled by the following regulations: (i) The Bombay Municipal Corporation Act; (ii) The Bombay Police Act, 1951; (iii) The Bombay Prohibition Act, 1949; (iv)  The  Rules  for  Licensing  and  Controlling  Places  of  Public Entertainment, 1953; (v)  The  Rules  for  Licensing  and  Controlling  Places  of  Public Amusement other than Cinemas; (vi) And other orders as are passed by the Government from time to time.

128.  The  restaurants/dance  bar  owners  also  have  to  obtain licences/permissions as listed below: (i) Licence and registration for eating house under the Bombay Police Act, 1951; (ii)  Licence  under  the  Bombay  Shops  and  Establishment  Act, 1948 and the rules made thereunder; (iii) Eating house licence under Sections 394, 412-A, 313 of the Bombay Municipal Corporation Act, 1888; (iv)  Health  licence  under  the  Maharashtra  Prevention  of  Food Adulteration Rules, 1962; (v) Health licence under the Mumbai Municipal Corporation Act, 1888 for serving liquor;

22

(vi)  Performance  licence  under  Rules  118  of  the  Amusement Rules, 1960; (vii) Premises licence under Rule 109 of the Amusement Rules; (viii)  Licence  to  keep  a  place  of  public  entertainment  under Section 33(1) clauses (w) and (y) of the Bombay Police Act, 1951 and the said Entertainment Rules; (ix)  FL III  licence under  the Bombay Prohibition Act,  1949 and Rule 45 of the Bombay Foreign Liquor Rules, 1953 or a Form E licence under the Special Permits and Licences Rules for selling or serving IMFL and beer; (x) Suitability certificate under the Amusement Rules.

129. Before any of the licences are granted, the applicant has to fulfill the following conditions: (i) Any application for premises licence shall be 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 m. (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 m. (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 offences. (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 m. (viii) The conditions mentioned in the licence shall be observed throughout the period for which the licence is granted and if there is a breach of any one of the conditions, the licence is likely to be cancelled after following the usual procedure.

130. The aforesaid  list,  enactments and regulations are further supplemented  with  the  regulations  protecting  the  dignity  of women. The provisions of the Bombay Police Act, 1951 and more particularly  Section  33(1)(w)  of  the  said  Act  empowers  the licensing authority to frame rules:

23

“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.”

131.  Rules  122  and  123  of  the  Amusement  Rules,  1960  also prescribe conditions for holding performances:

“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.”

132. 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 deal with the situation within the framework  of  the  existing  laws  except  for  the  unfounded

24

conclusions recorded in the Preamble as well as the Statement of Objects  and  Reasons.  [See  State  of  Gujarat  v.  Mirzapur  Moti Kureshi Kassab Jamat  [(2005) 8 SCC 534 : AIR 2006 SC 212] wherein it  is  held  that:  (SCC p.  573,  para 75)  the standard of judging  reasonability  of  restriction  or  restriction  amounting  to prohibition remains the same, excepting that  a  total  prohibition must  also  satisfy  the  test  that  a  lesser  alternative  would  be inadequate.]  The Regulations framed under Section 33(1)(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 licence 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 licence 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.

133.  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  falling  within  Section  33-B;  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 33-A 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 the  dancers  wore  deliberately  provocative  dresses.  The  dance becomes  even  more  provocative  and  sensual  when  such behaviour is mixed with alcohol.  It  has the tendency to lead to undesirable results. Reliance was placed upon State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699], Khoday Distilleries Ltd. v. State of Karnataka [(1995) 1 SCC 574], State of Punjab v. Devans Modern Breweries Ltd.  [(2004) 11 SCC 26],  New York State Liquor Authority v. Bellanca [69 L Ed 2d 357 : 452 US 714 (1981)] and R. v. Quinn [(1962) 2 QB 245 : (1961) 3 WLR 611 :

25

(1961)  3  All  ER  88  (CCA)]  to  substantiate  the  aforesaid submissions. Therefore, looking at the degree of harm caused by such behaviour, the State enacted the impugned legislation.

134. 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.  [(1995) 1 SCC 574] , 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  of  the  unfounded  presumption  that  women  are being/were  trafficked  in  the  bars.  State  of  Punjab  v.  Devans Modern Breweries Ltd.[(2004) 11 SCC 26] dealt with liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority [69 L Ed 2d 357 : 452 US 714 (1981)] 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,  R.  v.  Quinn [(1962) 2 QB 245 : (1961) 3 WLR 611 : (1961) 3 All ER 88 (CCA)] 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.

135. 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 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.

136. The end result of the prohibition of any form of dancing in the establishments  covered  under  Section  33-A  leads  to  the  only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have been 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

26

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).”

Submissions of the petitioners:

22) Mr.  Jayant  Bhushan,  learned  senior  counsel  began  his

submissions  with  a  fervent  plea  that  the  respondent  State  was  bent

upon banning altogether dance performances in the bars/permit homes

or  restaurants  etc.   His  argument  was  that  earlier  two  attempts  of

identical  nature  made  by  the  respondents  failed  to  pass  the

constitutional muster.  The provisions of Sections 33A and 33B inserted

vide Amendment Act, 2005 to the Bombay Police Act, 1951 had been

struck down as unconstitutional being in contravention of Articles 14 and

19(1)(g)  of  the Constitution.   In spite thereof,  the State did not  grant

licences to any person including the petitioners.  This deliberate inaction

on the part  of  the State  led to  filing  of  the contempt  petition  by the

petitioners in which notice was issued on May 05, 2014.  After receiving

the notice in the said contempt petition, the State brought on the statute

book Section 33A in another avtar by amendment Act on June 25, 2014.

According to the petitioners, it was verbatim similar to Section 33A which

was  already  held  unconstitutional  and  it  is,  for  this  reason,  in  Writ

Petition (Civil) No. 793 of 2014 wherein constitutionality of this provision

was  challenged,  this  Court  passed  orders  dated  October  15,  2015

staying the operation of newly added Section 33A of the Bombay Police

27

Act.  Thereafter, on November 26, 2015, this Court directed licences to

be granted in two weeks.  In order to frustrate the aforesaid directions of

this Court,  respondents came up with 26 new conditions for  grant  of

licence.   As  the  petitioners  had  objection  to  some of  the  conditions,

another application was moved in Writ Petition (Civil) No. 9793 of 2014.

After orders dated March 02, 2016 were passed by the Court modifying

some of the said 26 conditions, on April 18, 2016, this Court granted one

week time to the respondents to comply with its directions.  Again, with

intention  to  frustrate  the  effect  of  the  judgment  of  this  Court,  the

respondents  passed  the  impugned  legislation  and  also  framed

impugned rules thereunder.

23) Mr. Bhushan further  pointed  out  that  even  when certain  orders

were passed by the Supreme Court for issuance of the licence and for

processing other applications on the principle of parity, till  date not  a

single licence has been issued to any of the petitioners/members of the

association.  All this amply shows that the only intention of the State is to

put an absolute ban on dance bars, as the respondent State is ensuring

that  licences  are  rejected  on  one  ground  or  the  other.   He  also

endeavoured to demonstrate this by reading the orders passed by the

State rejecting each and every application that has been made for grant

of licence even under the new Act and Rules.  

28

24) Mr. Bhushan specifically referred to the following passage from the

earlier judgment wherein plea of public interest or morality was repelled:

"53. With regard as 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 practise  any  profession,  trade  or  occupation  is  subject  to restrictions  in  Article  19(6).  Therefore,  by  prohibiting  dancing under Section 33-A, no right of the bar owners are being infringed. The curbs imposed by Sections 33-A and 33-B 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 v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534 : AIR 2006 SC 212]. Reference was also made to Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai  [(1986) 3 SCC 20], wherein this Court gave a wide meaning to “interest of general public” and observed as follows: (SCC p. 31, para 19)

“19.  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.”

xx xx xx

55. The SNDT Report also shows that only 17.40% of the bar girls are from the State of Maharashtra.  The bar owners have been exploiting  the  girls  by  sharing  the  tips  received  and  also capitalising on their performance to serve liquor and improve the sales and business. Again reliance is placed on the observations made in PRAYASReport at p. 47 which is as under:

“The women working as either dancers or waiters were not paid  any  salary,  but  were  dependent  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%.”

xx xx xx

59.  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

29

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  State of Bombay v.  R.M.D. Chamarbaugwala [AIR  1957  SC  699]  .  In  that  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).

xx xx xx

72. The same principle was reiterated by this Court in  State of Bihar  v.  Bihar Distillery Ltd.  [(1997) 2 SCC 453] in the following words: (SCC p. 466, para 17)

“17.  …  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 the 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 part of attempt to sustain  the validity/constitutionality of  the enactment.  After all, an Act made 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.”

xx xx xx

85.  Mr  Rohatgi  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

30

revealing  clothes:  shorts,  swimming  costumes  and  revealing dresses. Reverting to 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 organised racket that brings women to the dance bars. The girls' interview, in fact, indicated that they came to the dance bars through  family,  community,  neighbours  and  street  knowledge. Therefore, according to 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.”

25) Adverting specifically to those provisions of the Act and the Rules

which have been challenged as unconstitutional, Mr. Bhushan submitted

that insofar as Section 2(8)(i) is concerned, the definition of ‘obscene

dance’ contained therein is totally vague. He argued that this definition of

‘obscene dance’ includes ‘a dance which is designed only to arouse the

prurient interest of the audience’, which was totally loose expression

incapable of any precise meaning.

26) It was submitted that such a definition was susceptible to various

perceptions depending  upon the subjective  opinion  of  the concerned

persons  and,  therefore,  different  persons  may  reach  different

conclusions after seeing the same dance performance. According to Mr.

Bhushan, when obscene dance is made as an offence under the Act, a

vague  definition  of  this  term  was  anathema  to  the  principles  of

31

criminology and was opposed to the rule of law.   

 27) Another provision, validity whereof is questioned on the premise

that the same is arbitrary and violative of Article 14 of the Constitution, is

Section 6(4) of the Act.  This provision bars the grant of licence under

the Act in respect of a place where licence for discotheque or orchestra

is granted.  Conversely, it also prohibits grant of licence for discotheque

or orchestra where licence under this Act is granted.  Simply put, the

purport behind this provision is to see that in respect of a particular place

either licence is granted for dance bars or for discotheque and orchestra

and there would not be a licence for a place, both for dance bars and

discotheque or orchestra, at the same time.  It was submitted that there

was no rational behind such a provision based on intelligible differentia.

Reference was made to the judgment in M.P. AIT Permit Owners Assn.

and Another v. State of M.P.2, which was relied upon in the subsequent

judgment in  Engineering Kamgar Union  v.  Electro Steels Castings

Ltd. and Another3 wherein it was held as under:

"21.  The Central  Act  and  the  State  Act  indisputably  cover  the same field. The jurisdiction of the State Legislature to enact a law by a parliamentary legislation is not impermissible. Subject to the provisions contained in  Article  254 of  the Constitution of  India, both  will  operate  in  their  respective  fields.  The  constitutional scheme in this behalf is absolutely clear and unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in  the same field  by reason of  enactments  made by Parliament and the State in exercise of their respective legislative powers contained in List I and List II of the Seventh Schedule of

2 (2004) 1 SCC 320 3 (2004) 6 SCC 36

32

the Constitution of India but admittedly the field being the same, a question would arise as regards the effect  of  one Act  over the other in the event it is found that there exists a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the provisions of one Act would have to be disobeyed if the provisions of the other are followed. The conflict may exist even where both the laws lead to different legal results.

xx xx xx

24. The judgments of this Court clearly lay down the law to the effect that if two Acts produce two different legal results, a conflict will arise.

28) He further submitted that for contravening the provisions of Section

6(4) of the Act, the punishment provided under Section 8(2) of the Act

was imprisonment for a term which may extend to three years or fine

which may extend to Rs.10 lakhs or both. This, according to him, was

impermissible inasmuch as such an act, namely, obscene dance, would

amount to obscenity which is made an offence under Section 294 of the

Indian  Penal  Code  (IPC)  and  that  offence  is  punishable  with

imprisonment which may extend to three months. He, thus, argued that

such a provision was not only arbitrary and violative of Article 14, there

was a clear conflict between the central law (i.e. the IPC) and the State

Act (the impugned Act). According to him, in such an eventuality, it is the

central law which has to prevail and, therefore, Section 8(2) of the Act

needed to be struck down on this ground.

29) Adverting to the challenge in respect of Section 8(4) of the Act, he

submitted  that  this  provision  makes  throwing  or  showering  coins,

33

currency notes or any article or any thing which can be monetised on the

stage or handing over personally such things, etc. to a dancer is also

made an offence under this provision, which again suffers from the vice

of arbitrariness.  He submitted that in the first instance such a prohibition

is only qua the dancers and not singers or waitresses.  Contention was

that  giving  such  things  to  a  dancer  only  amounts  to  tipping  her  on

appreciation  of  her  performance  which  was  the  same  thing  as

appreciating a singer for her performance or a waitress for her service

and there was absolutely nothing wrong about it and such an act cannot

be made an offence.  It was, according to him, manifestly arbitrary and

violative  of  Article  14.   The  learned  senior  counsel  relied  upon  the

following averments in Nikesh Tarachand Shah v. Union of India and

Another4:

"23.  Insofar  as  “manifest  arbitrariness”  is  concerned,  it  is important  to  advert  to  the  majority  judgment  of  this  Court  in Shayara Bano v. Union of India [Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] . The majority, in an exhaustive review of case law under Article 14, which dealt with legislation being struck down on the ground that it is manifestly arbitrary, has observed: (SCC pp. 91-92 & 99, paras 87 & 101)

“87.  The thread of reasonableness runs through the entire fundamental  rights  chapter. What  is  manifestly  arbitrary is obviously unreasonable and being contrary to the rule of law, would  violate  Article  14.  Further,  there  is  an  apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] when it is said that a constitutional  challenge can succeed on the ground  that  a  law  is  “disproportionate,  excessive  or unreasonable”,  yet  such  challenge would  fail  on  the  very ground  of  the  law  being  “unreasonable,  unnecessary  or

4 (2018) 11 SCC 1

34

unwarranted”.  The  arbitrariness  doctrine  when  applied  to legislation obviously would not involve the latter challenge but  would  only  involve  a  law  being  disproportionate, excessive or  otherwise being manifestly  unreasonable.  All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all  of which are interdicted  if  they  fall  foul  of  the  fundamental  rights guaranteed  to  persons  and  citizens  in  Part  III  of  the Constitution.

xx xx xx

101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India  [Indian  Express  Newspapers  (Bombay)  (P)  Ltd.  v. Union of India,  (1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well  as  subordinate  legislation  under  Article  14.  Manifest arbitrariness,  therefore,  must  be  something  done  by  the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive  and disproportionate,  such legislation  would  be manifestly  arbitrary.  We  are,  therefore,  of  the  view  that arbitrariness  in  the  sense  of  manifest  arbitrariness  as pointed out by us above would apply to negate legislation as well under Article 14.”

This  view of  the law by two learned Judges of  this  Court  was concurred with by Kurian, J. in para 5 of his judgment.

24.  Article  21  is  the  Ark  of  the  Covenant  so  far  as  the Fundamental Rights Chapter of the Constitution is concerned. It deals  with  nothing  less  sacrosanct  than  the  rights  of  life  and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of  a  vast  number  of  substantive  and  procedural  rights  post Maneka Gandhi  v.  Union of  India  [Maneka Gandhi  v.  Union of India, (1978) 1 SCC 248]. Thus, in Rajesh Kumar [Rajesh Kumar v.  State,  (2011) 13 SCC 706 :  (2012) 2 SCC (Cri)  836]  at  pp. 724-26, this Court held: (SCC paras 56-63)

35

“56. Article 21 as enacted in our Constitution reads as under: ‘21.  Protection of life and personal  liberty.—No person shall  be  deprived  of  his  life  or  personal  liberty  except according to procedure established by law.’

57. But this Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] held that in view of the expanded interpretation of Article 21 in Maneka Gandhi  [Maneka Gandhi  v.  Union of  India,  (1978)  1 SCC 248]  ,  it  should  read  as  follows:  (Bachan  Singh  case [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] , SCC p. 730, para 136)

‘136. … “No person shall be deprived of his life or personal liberty  except  according  to  fair,  just  and  reasonable procedure established by valid law.”

In the converse positive form, the expanded article will read as below:

“A person may be deprived of his life or personal liberty in accordance  with  fair,  just  and  reasonable  procedure established by valid law.” ’

58. This epoch-making decision in Maneka Gandhi [Maneka Gandhi  v.  Union  of  India,  (1978)  1  SCC  248]  has substantially  infused  the  concept  of  due  process  in  our constitutional jurisprudence whenever the court has to deal with a question affecting life and liberty of citizens or even a person.  Krishna  Iyer,  J.  giving  a  concurring  opinion  in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] elaborated, in his inimitable style,  the transition from the phase of the rule of law to due process of law. The relevant  statement  of  law  given  by  the  learned  Judge  is quoted below: (SCC p. 337, para 81)

‘81.  …  “Procedure  established  by  law”,  with  its  lethal potentiality,  will  reduce  life  and  liberty  to  a  precarious plaything  if  we  do  not  ex  necessitate  import  into  those weighty words an adjectival rule of law, civilised in its soul, fair  in its heart  and fixing those imperatives of  procedural protection  absent  which  the  processual  tail  will  wag  the substantive  head.  Can the  sacred  essence of  the  human right to secure which the struggle for liberation, with “do or die” patriotism, was launched be sapped by formalistic and pharisaic  prescriptions,  regardless  of  essential  standards?

36

An enacted apparition is a constitutional illusion. Processual justice is  writ  patently  on Article  21.  It  is  too grave to be circumvented by a black letter ritual processed through the legislature.’

59.  Immediately  after  the  decision  in  Maneka  Gandhi [Maneka  Gandhi  v.  Union  of  India,  (1978)  1  SCC  248] another Constitution Bench of this Court rendered decision in Sunil Batra v. State (UT of Delhi) [Sunil Batra v. State (UT of  Delhi),  (1978)  4  SCC  494  :  1979  SCC  (Cri)  155] specifically acknowledged that even though a clause like the Eighth  Amendment  of  the  United  States  Constitution  and concept of “due process” of the American Constitution is not enacted in our Constitution text, but after the decision of this Court  in  Rustom  Cavasjee  Cooper  [Rustom  Cavasjee Cooper  v.  Union of India, (1970) 1 SCC 248] and  Maneka Gandhi  [Maneka Gandhi  v.  Union of  India,  (1978)  1 SCC 248]  the  consequences  are  the  same.  The  Constitution Bench of this Court in Sunil Batra [Sunil Batra v. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] speaking through Krishna Iyer, J. held: (Sunil Batra case [Sunil Batra v. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC p. 518, para 52)

‘52.  True, our Constitution has no “due process” clause or the  Eighth  Amendment;  but,  in  this  branch  of  law,  after Cooper [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , the consequence is the same.’

60. The Eighth Amendment (1791) to the Constitution of the United  States  virtually  emanated  from  the  English  Bill  of Rights  (1689).  The  text  of  the  Eighth  Amendment  reads, “excessive  bail  shall  not  be  required,  nor  excessive  fines imposed, nor cruel and unusual punishments inflicted”. The English Bill of Rights drafted a century ago postulates, “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

61.  Our Constitution does not have a similar provision but after  the  decision  of  this  Court  in  Maneka  Gandhi  case [Maneka  Gandhi  v.  Union  of  India,  (1978)  1  SCC  248] jurisprudentially  the  position  is  virtually  the  same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence.

62.  Until  the  decision  was  rendered  in  Maneka  Gandhi [Maneka  Gandhi  v.  Union  of  India,  (1978)  1  SCC  248]  ,

37

Article 21 was viewed by this Court as rarely embodying the Diceyian  concept  of  the  rule  of  law  that  no  one  can  be deprived  of  his  personal  liberty  by  an  executive  action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example  given  by  S.R.  Das,  J.  in  his  judgment  in  A.K. Gopalan [A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] that if the law provided the Bishop of Rochester “be boiled in oil” it would be valid under Article 21. But after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] which marks a watershed in the development of constitutional law in our country, this Court, for the first time, took the view that Article 21 affords protection  not  only  against  the  executive  action  but  also against the legislation which deprives a person of his life and personal liberty unless the law for deprivation is reasonable, just  and  fair.  And  it  was  held  that  the  concept  of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair and if challenged before the  court  it  is  for  the  court  to  determine  whether  such procedure is reasonable, just and fair and if the court finds that it is not so, the court will strike down the same.

63. Therefore, “law” as interpreted under Article 21 by this Court is more than mere “lex”. It implies a due process, both procedurally and substantively.”

25. Given the parameters of judicial review of legislation laid down in these judgments, we have to see whether Section 45 can pass constitutional muster.”

His further  submission relating to this  provision was that  it  was

even violative  of  Article  19(1)(g)  of  the  Constitution  inasmuch as  for

dancers, singers, waitresses, etc., tips are th major part of their earnings

which was sought to be taken away by this provision.

30) Attacking the validity of  Rule 3 of  the Rules,  he submitted that

38

Condition No.2 contained in Part A of the Schedule attached to these

Rules is  contrary to the judgment  in  Indian Hotel  and Restaurants

Association (1).   He also submitted that  distance of  1 k.m.  of  such

dance bars from the educational and religious institutions, as stipulated

in   Condition  No.11  of  Part  A  of  the  Schedule,  was  illogical  and

impractical.  According to him, it was, in fact, an impossible condition to

be  fulfilled  in  a  congested  city  like  Mumbai  where  educational  and

religious institutions existed within 1 k.m. from each and every building.

He pointed out that for the Bars under liquor Rules, distance prescribed

is  75  mts.,  which  was  reasonable  and  valid  provision  and  could  be

incorporated here as well.

31) Insofar as Condition No.2 contained in Part B of the Schedule is

concerned, it is challenged on the ground that under the guise of this

condition the respondent wanted that employment of the bar dancers in

the said bars becomes imperative.  This was violative of Article 19(1)(g)

of  the  Constitution,  both  for  the  owners  as  well  as  for  such  women

dancers and waitresses,  as it  was taking away the freedom of these

performers to work on contract basis if they so wanted.   

32) As far  as Condition No.6 relating to giving of  tips is  concerned

(which goes along with Condition No. 11 of Part A), argument is that the

State  cannot  impose  a  condition  that  such  an  amount  has  to  be

39

necessarily added in the bill.   

33) Timings of the dance bars from 6:00 p.m. to 11:30 p.m. stipulated

in Condition No. 9 of Part B is challenged on the ground that it does not

serve any purpose.  Moreover, discotheque or orchestra and liquor bars

are allowed to be open till 01:30 a.m.   

34) Similarly, argued the petitioners, Condition No.12 which prohibits

serving alcoholic beverages in the dance bars is irrational.  

35) Validity of Condition No.16 read with Rule 3(iii) is challenged on

the ground that such a condition is again vague in nature inasmuch as

the expression ‘good character’ and ‘criminal record in the past’ are not

capable of any precise definition.  He submitted that till the time there is

no conviction, there cannot be any bar on the employment of a person.

Further, even if there is a conviction, the bar should be attached only in

those cases where conviction is for a serious offence.

36) Condition No.17 of  Part  B  to  the Schedule  which prohibits  any

modification or alteration in the premises without the permission of the

licensing authority is questioned as arbitrary.  Attention of the Court was

drawn to the order dated March 02, 2016 passed in Writ Petition (Civil)

No. 793 of 2014, which reads as under:

"On the last occasion, the Court had noted 7 (seven) conditions which  had  been  taken  exception  to  by  Mr.  Jayant  Bhushan,

40

learned  senior  counsel  appearing  for  the  petitioners.  The exceptions relate to condition nos.1, 2, 5, 10, 12 and 15.  

Condition no.1 reads as follows :  

“1) This licence is valid for only one stage of 10 ft. x 12 ft. in  size in restaurant  area as per approved plan of  the excise  department  for  F.L.-III  with  non-transparent partition between restaurant and permit room area.”  

It  is  submitted  by  Ms.  Pinky  Anand,  learned  Additional Solicitor  General  on  the  basis  of  the  affidavit  that  as  per  the approved plan of  the Excise Department for  permit  rooms with FL-III  licence,  there  is  always  a  necessity  for  providing  a non-transparent partition between the restaurant and the permit room area.  It  is  urged  by  her  that  the  intention  of  the  Excise Department behind incorporation of the said condition is to keep the permit  room area separate from the restaurant  area where alcohol is not served. Be it  noted, the said condition has been modified to the following extent :  

“This licence is valid for only one stage of 10 ft. x 12 ft. size  in  restaurant  area/permit  room  as  per  approved plan  of  the  Excise  Department  for  F.L.-III  with  non transparent  partition  between  restaurant  and  permit room area.”  

The  said  condition  is  accepted  by  the  petitioners  and, therefore, we shall not dwell upon the same.  

As  far  as  the  condition  no.2  is  concerned,  it  reads  as follows:  

“2)  The  stage  should  cover  from  all  sides  by  a  non removable partition of 3 ft. height.”  

In  the  affidavit  filed  by the  State,  the  said  condition  has been modified as follows :  

“(2) There shall 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  which  have  secured  licenses earlier, provisions mentioned above be made binding. It should  be  made  binding  on  dance  bars  seeking  new licenses 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.”

41

Mr.  Bhushan,  learned  senior  counsel  would  submit  that regard  being  had  to  the  suggestions  noted  in  State  of Maharashtra  &  Anr. vs.  Indian  Hotel  and  Restaurants Association & Ors. [(2013) 8 SCC 519, the railing of 3 ft. height can be put  in  praesenti  subject  to the further arguments to be canvassed at  a later stage but there cannot be non-removable partition. Having heard learned counsel for the parties, we accept the submission of Mr. Bhushan, learned senior counsel and direct that there should be railing of 3 ft. height and not the non-removable  partition.  The  railing  is  meant  for  creating barrier between the performers and the audience.  

Condition No.5 is to the following effect :  

“5)  The  licensee  is  permitted  to  keep  only  04 dancers/artists  to  remain  present  on  the  permitted stage.”

It is submitted by Mr. Bhushan that he has no objection to the said  condition but  it  may be clarified that  other  artists  can remain present in the premises to which there is no objection by learned Additional  Solicitor General.  Hence, we clarify that four dancers can perform on the stage at one time but there can be other artists at other places inside the premises.  

Condition no.10 reads as follows :  

“10) The Licensee shall  ensure that the character and antecedents of all employees is verified by the police.”  

Though there is no suggestion in the affidavit as regards the said  condition,  it  is  submitted  by  Mr.  Bhushan,  learned  senior counsel, that it has to be restricted to criminal antecedents. We agree  with  the  same.  Any  employee  who  is  engaged,  his/her criminal antecedents are to be verified. It is imperative.  

Condition No.11 reads as follows :  

“11)  The  Licensee  shall  not  allow  any  addition  or alternation to be made to the premises except  without the  written  permission  of  the  Competent  Authority  i.e. DCP (HQ-I) for Mumbai or concerned DCP/SP for other areas.”

The aforesaid condition is modified to the extent that the  premises  shall  not  be  altered/modified  without  the permission  of  the  competent  authority  under  the  statute.

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However,  it  is  hereby  directed  that  if  there  will  be  any grievance on this score, the parties are at liberty to approach this Court.  

Condition no. 12 reads as follows :  

“12) The Licensee shall ensure that no concealed cavity or  a  room  is  created  within  the  premises  in  order  to conceal performers/staff.”  

Mr. Bhushan, learned senior counsel submitted that he has no objection to  the said  condition but  there should  be a room which  can  be  utilised  as  a  green  room.  We  so  direct.  Be  it clarified, green room means green room in the manner in which it is understood in the classical sense.

Condition no. 15 on which the parties are at real cavil reads as follows :  

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

Having heard learned counsel  for  the parties,  Dr. Rajeev Dhawan, learned senior counsel, who sought permission to file an application for intervention and Mr. Sandeep Deshmukh, learned counsel for the 5th respondent, we are inclined to modify the said condition to the extent that CCTV cameras shall be fixed at the entrance of the premises in question but shall not be fixed in the restaurant or the permit area or the performance area.  

As we have clarified the conditions, the modified conditions along with conditions on which there is no cavil shall be complied with  within  three  days  and  the  respondents  shall  issue  the licences within ten days therefrom. We are sure, the authorities shall act in accordance with the command of this Court and not venture to deviate.  

Let the matter be listed after two weeks.  

Liberty to mention.”  

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37) Condition No.20 was also challenged on the same ground referring

to the same order dated March 02, 2016.

38) In  addition,  it  was  argued  that  requirement  for  having  CCTV

cameras at such places will have chilling effect, which was also violative

of the right to privacy that is now declared as a fundamental right in K.S.

Puttaswamy and Another v. Union of India and Others5.

39) Mr. Nikhil Nayyar, learned counsel appearing for the writ petitioner

in  Writ  Petition  (Civil)  No.  119  of  2017,  submitted  that  the  petitioner

Union, namely, Bharatiya Bar Girls Union comprises of women artists

and  talented  professionals  (collectively  to  be  called  as  ‘women

performers’)  working  in  varied  roles  such  as  dancers,  singers  or

waitresses in bars, restaurants, beer rooms, etc. (collectively referred to

as  ‘dance  bars’).   It  has  5000  members  who  were  working  in  such

establishments in the State of Maharashtra alone.  However, after the

imposition of ban for a prolonged period, which has resulted in rendering

these women performers unemployed, the membership has shrunk to

110  women  performers.   He  submitted  that  many  have  sought

alternative employment and even migrated to other parts of the country

and many are living under the conditions of extreme penury as they are

facing unemployment.  He argued that the members of the petitioner

union have voluntarily embraced professional dancing at dance bars (i)

5 (2017) 10 SCC 1

44

entirely  out  of  free  will  and  choice;  (ii)  to  earn  livelihood;  and  (iii)

personal  autonomy and dignity.  The existing literature and empirical

studies have identified the women’s desire to lead an independent and

self-sustaining life as the primary motivation to work in dance bars.  For

many,  the  opportunity  to  work  in  dance  bars  have  allowed  them to

break-away from stigmatic hereditary or caste profession.  Some of the

key findings of these studies are as follows:

(i) Nearly 82.6% of women performers (out of the sample size of 500)

surveyed in Mumbai were migrants, and forced to leave their homes due

to ‘poverty and destitution’ and for ‘seeking a better life for themselves

and their dependents’6.

(ii) Another study found that 42% of women dancers (out of 800) were

the  only  breadwinners  in  their  family.   Most  of  them  lacked  basic

education or technical skills.  Some of them were previously engaged in

sex work,  but  turned towards dance bars to lead a dignified life with

safer working conditions7.

(iii) Another  ethnographic  study  has  shown  that  a  vast  majority  of

women  performers  worked  in  exploitative  or  constricted  environment

(viz.,  rag  pickers,  domestic  helpers,  etc.,).   Many  performers  also

belonged  to  marginalized  and  traditional  dancing  communities  (viz.,

6 See Feminist  Contributions from the  Margins:  Shifting  Conceptions of  Work  and Performance of the Bar Dancers of Mumbai XLV Econ. & Pol. Weekly (48) 2010 7 See RCWS (SNDT University, Mumbai), ‘Working Women in Mumbai Bars: Truths behind the controversy’ (Jul’ 2005); RCWS (SNDT University, Mumbai), ‘After the Ban – Women Working in Dance Bars’ (Dec’ 2006)

45

Bedia, Deredar, Kanjhar, Nat, Rajnat, etc.,) and other societies that have

had a history of ‘alternate’ sexual morality8.

40) As with other professional artistes,  and until  the year  2004, the

women performers have had complete freedom to choose which bars or

restaurants to perform; day, time or duration of their performance; and

had the bargaining capacity to negotiate remuneration with bar owners.

In other words, the women performers were never the ‘employees’ of

such establishments – either by virtue of a contract or under a statutory

provision.  As a matter of fact, many women performers do not expect

any  or  adequate  compensation  from  bar  owners  as  it  has  been

customary for performers to accept tips or rewards from patrons offered

as a token of  appreciation for  their  performance.   This  decades’  old

practice  is  akin  to  customary  practices  of  Mujras,  Lavani  (traditional

Marathi song and dance) or Tamasha (traditional Marathi theatre) who

earn their living in the form of Bakshisi offered by audiences.  The said

practice is still widely prevalent across the country.

41) Adverting  to  the  secondary  effects  and  colonial-era  stigma,  Mr.

Nayyar pointed out that the dramatic performances in dance bars often

imitate Bollywood performances or the ‘mainstream’ culture – both in

form and character.  However, the State Government has viewed dance

8 See Dalwai, Sameena, ‘Performing caste: the ban on bar dancing in Mumbai’ Keele  University (2012)

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bars an innately vulgar, undesirable, and as threatening the moral fabric

of the society.  The State’s perception is premised on popular beliefs and

public sentiment associated with art and entertainment.

42) The  reason  for  the  oppressive  and  moralistic  attitude  against

dance bars takes root from a patriarchal view that women “engaging in

any kind of work or profession outside the home or domestic sphere’

carried ‘low societal status’.  Anna Morcom, a noted scholar, argues that

the societal views on ‘bar girls’ bear close resemblance to oppressive

treatment  meted  out  to  traditional  dancing  communities  (Devadasis,

courtesans, nautch, etc.,) during British-era9.  

43) Insofar  as  challenge  to  the  Act  and  Rules  is  concerned,  this

petition challenges some of the provisions which are also the subject

matter of challenge in Writ Petition (Civil) No. 576 of 2016, on which we

have  noted  the  arguments  of  Mr.  Jayant  Bhushan,  learned  senior

counsel.   Adopting  those  arguments,  Mr.  Nayyar  also  made  some

additional submissions which are as under:

In the first  place,  the learned counsel  took support  of  the legal

principles  settled  in  the  judgment  of  this  Court  in  Indian  Hotel  and

Restaurants Association (1).  He argued that in that case the Court

considered the rational offered by the State Government threadbare and

9 Anna Morcom, Courtesans, Bar Girls and Dancing Boys: Illicit Worlds of Indian  Dance (Hachette India, 2014)

47

found no basis or justification for imposition of prohibition.  

44) He submitted that the present Act and rules were nothing but old

wine in a new bottle with same kind of provisions which have already

been struck down in Indian Hotel and Restaurants Association (1).  In

addition, the argument of Mr. Nayyar was that the moral anxiety and the

reasons  advanced  by  the  State  Government  for  introducing  the

legislation  are  entirely  irrational  and  without  demonstrable  proof  or

evidence.  Illustratively:

(I)   Social Profile of Bar girls:  It  has been claimed that bar girls are

usually minors or victims of trafficking or prostitution and other forms of

flesh trade.  However, the State Government has failed to produce any

material – be it crime statistics or any other studies – in support.  On the

other hand, few available historical literature and research studies on

bar  dances  suggest  a  diagonally  opposite  point  of  view.   A  study

conducted by SNDT University, for instance, found that many women

performers took up dancing to rehabilitate themselves from exploitative

flesh trade.  All the above social factors clearly suggest that the bar girls

have voluntarily embraced dance bars to live with dignity and earn their

livelihood.  Moreover, the available literature further noted dance bars

have had positive externalities on the women performers as it opened

newer opportunities and the option to leave exploitative sex work if they

chose.

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(ii)   Non-obscene performances:   In  any event,  this  Court  in  Indian

Hotel and Restaurants Association (1) and several other High Courts

previously had categorically held that the performances in dance bars

cannot be considered as ‘obscene’. The Bombay High Court in State of

Maharashtra v. Joyce Zee alias Temiko10, dealing with cabaret shows,

held as under:

"An adult person, who pays and attends a cabaret show in a hotel runs  the  risk  of  being  annoyed  by  the  obscenity  or  being entertained by the very obscenities according to his taste.  Even assuming that such a hotel where anyone can buy tickets is concerned to be a public place,  it  cannot be held that the obscenity and annoyance which are punishable under S.294 of IPC are caused without the consent, express or implied, of such adult person.  Such a person cannot complain in a criminal court of annoyance.”

(emphasis added)

This proposition has been reiterated and followed in  Sadhna  v.

State11  and  Narendra  H.  Khurana  v.  Commissioner  of  Police12.

Thus, it is evident that the impugned Act and Rules perpetuate a myth

that dance bars pose any danger to law and order or cause disturbance

to peace and tranquility.

(iii)  Lack of Reliable Data:  It is pertinent to note that there has been a

complete  prohibition  on  dance  bars  since  2005  across  the  State  of

Maharashtra.  Therefore, the data purportedly relied upon by the State

Government is not only negligible, if any, but also outdated.  Be that as it

may, the very reasons proclaimed by the State Government currently

10 (1973) ILR 1299 (Bom) 11 (1981) 19 DLT 210 12 (2004) 2 Mah LJ 72

49

have been considered and rejected by this Court in  Indian Hotel and

Restaurants  Association  (1)  for  the  lack  of  cogent  evidence.

Therefore, the belief of the State Government that the working women in

dance bars are involved in immoral activities such as prostitution, or that

minors are being employed, are entirely baseless and irrational.

(iv)  Conditions of work:  The concerns of the State Government that

women  dancers  are  subjected  to  unsafe  and  exploitative  working

conditions is entirely false.  Various studies indicate that many bar girls

felt  ‘greater security in the bars due to the support network among the

dancers as well as the protection provided by the owners’.  It was further

noted that the bar owners, on the demands made by bar girls, provides

taxis and auto rickshaws for women travelling late at night.  Although bar

girls worked under the constant gaze of bar owners, they are neither

contractually employed nor subservient to them.  Few other performers

have also expressed complete freedom to shift from one dance bar to

another at their will.  Therefore, the claims that the women performers

are  working  under  unsafe  or  exploitative  conditions  are  hugely

exaggerated.  Having said that, there is certainly a grave necessity to

improve working conditions of  bar  girls.   However, the same can be

achieved by strengthening the rights of thees women and organisations

such  as  the  petitioner-Union  without  the  intervention  from  state

apparatus.

50

(v)  Social Vulnerabilities:  The prolonged ban on dance bars has had

adverse effect on bar girls and women entertainers.  After the ban, the

RCWS & FAOW study pointed out that income of almost all women was

reduced to less than 50% of their original earnings, and at least 1/4th of

the women found their income slashed by 90% of their original earnings.

At least 57.5% of the women reported having used all their savings in

the form of jewellery, cash or property and at least 26% of these women

have been forced to take additional loans, ranging between the amounts

of  couple  of  thousands to  lakhs.   The study further  pointed that  the

access to health care and education of dancers and their families has

reduced drastically.  Moreover, the lack of social security has resulted in

sexual harassment and also driven women to take up exploitative sex

work.  In this backdrop, and contrary to the stated objects, the increased

interference  by  the  State  Government  could  further  jeopardise  the

livelihood  of  women.   This  Court  in  Indian  Hotel  and  Restaurants

Association (1)  also expressed anguish as ban on dance bars  ‘has

proved  to  be  totally  counter-productive’  as  many  women  performers

were ‘compelled to take up prostitution out of necessity for maintenance

of their families’.

(vi)  Res Extra Commercium:  The State Government contended that the

dancing  –  when  mixed  with  alcohol  –  has  the  tendency to  result  in

unwelcomed or undesirable outcome.  However, this Court  in  Indian

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Hotel and Restaurants Association (1) dealt with similar argument and

observed that ‘we are not impressed with any of these submissions’ as

the submission was based on ‘unfounded presumption that women are

being/were trafficked in the bars’.

According  to  him,  the  impugned  Act  has  been  enacted  as  a

retaliatory measure to disenfranchise women from performing at dance

bars at any cost. It is contended that the legislative declaration of facts

and beliefs, as noted above, are patently false and entirely irrational and

devoid of any material.

45) He further submitted that onus was on the State to justify fairness

and reasonableness which is the principle of law laid down in the case of

Ram Krishna Dalmia  v.  Justice S.R.  Tendolkar & Ors.13,  State of

Maharashtra & Anr. v. Basantibai Mohanlal Khetan & Ors.14 and M/s

Laxmi Khandsari & Ors. v. State of U.P. & Ors.15.

According to him, the State has not discharged this onus.

46) Mr. Nayyar also made detailed submissions on the standards of

‘obscenity’ which prevail in this country as per the parameters laid down

in various judgments and the development of law on this subject.  In this

hue, he also argued that public policy or general public interest cannot

be valid grounds to restrict freedom of speech under Article 19(1)(a) of

13 (1959) SCR 279 14 (1986) 2 SCC 516 15 (1981) 2 SCC 600

52

the Constitution.   Neither  majoritarian or  societal  notions formed the

basis to restrict  such a fundamental  right.   According to him,  on the

contrary,  constitutional  values  of  personal  autonomy  and  individual

choices which have been held to be the facets of right to privacy, giving

it the status of fundamental rights, had to be respected.  His plea was

that the impugned legislation and rules violate such rights as well.

47) Mr. Nayyar also, like Mr. Jayant Bhushan, touched upon specific

provisions of the Act and the Rules.  On Section 2(8) of the Act,  his

submission  was  that  it  is  a  provision  which  was  utterly  vague  and

creates a chilling effect; puts restrictions on dance which are excessive

and disproportionate; and suffers from rigidity, overbreadth and manifest

arbitrariness.  Insofar as Section 8(4) of the Act, which prohibits offering

tips by the customers to the performers is concerned, submission of Mr.

Nayyar is that it is manifestly arbitrary and unreasonable inasmuch as

this  provision  infuses  criminalisation  into  and  otherwise  benign  or

harmless act  and was contrary to well-recognised customary practice

thereby suffering from manifest arbitrariness.   

48) The learned counsel also laid attack on the legality of some of the

licence conditions.  His submission in this behalf was that the Grievance

Redressal Committee constituted under Section 12 of the impugned Act

is  highly  inadequate  and  disproportionate.   The  composition  of  the

53

Committee, tasked with the duty to ensure proper conditions of service

of women, does not contain any participation or representation of bar

dancers in any manner.  The composition of the Committee, as provided

by  Rule 10, is restricted to Group ‘A’ officers.  As it is the workplace of

these women, it is imperative that they must be represented when an

issue regarding their working condition is being decided.   

49) Mr. Nayyar termed condition B(2) as disproportionate, excessive

and ultra vires the intent and object of the impugned Act.  The provisions

adversely affect women dancers by (i) restricting their freedom to move

from one bar to another at their will, if the work conditions or the returns

are not suitable; (ii) prohibit them from monetizing dances other than by

way  of  receiving  salary  or  shared  tips.   More  importantly,  the  State

Government has failed to show any compelling public interest to curtail

the choices of women performers.   

50) Conditions  B(7)  and  B(8)  are  questioned  on  the  premise  that

women dancers are indirectly prohibited from receiving tips, rewards or

remuneration  offered  by  their  patrons,  is  unreasonable,  excessive,

manifestly arbitrary and violates Articles 14 and 19 of the Constitution.

The suggestion from the State Government that tips could be added to

the bill or handed over to waiters is irrational.   

51) Condition B(9) wherein the dance performances are restricted to

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6:00  pm to  11:30  pm is  challenged as  unreasonable  and  manifestly

arbitrary.  It is irrational and manifestly arbitrary to prohibit dances after

11:30 pm, when the establishments can be open until 01:30 am (next

day) or 12:30 am (next day), as the case may be16.   

52) According  to  him,  condition  B(12)  wherein  the  bar  owners  are

prohibited  from  serving  of  any  alcoholic  beverage  at  areas  where

dances are staged is disproportionate and manifestly arbitrary. The State

Government has failed to provide any cogent material or demonstrate

any reasonable basis which warrants interference of  this  nature.   As

such,  the restriction is  excessive and disproportionate  consider  other

licence conditions (distance, railing, green room, age restrictions, etc.,)

to prevent any untoward incident.   

53) Validity  of  Section  B(20)  wherein  the  mandate  to  install  CCTV

cameras to maintain complete surveillance and recording of activities in

such places is questioned as excessive, causes unwarranted invasion of

privacy and violative of Articles 19(1)(a) and 21.  In support, he referred

to para 247(3) of  K.S. Puttaswamy and Another  wherein this Court

examined the concept of ‘unpopular privacy’ - of which two facets are

particular relevant – viz. “(c) decisional privacy which protects the right

of citizens to make intimate choices about their rights from intrusion by

16 See Notification (bearing MSA. 07/2016/C.R. 218/Lab-10) issued by the State  Government also placed on record before this Court in Writ Petition (Civil) No. 576 of 2016.

55

the State; (d) proprietary privacy which relates to the protection of one’s

reputation.”  Given the societal stigma associated with dance bars, the

monitoring,  recording,  storage  and  retention  of  dance  performances

causes unwarranted invasion of privacy and would even subject women

performers to threat and blackmail.  If the concerns are security, it can

be  adequately  met  having  at  the  entrance.   Hence,  the  complete

surveillance  of  activities  inside  the  premises  is  excessive  and

disproportionate.   

54) Condition  B(23)  wherein  the  dance  performances  that  maybe

“expressive of any kind of obscenity, in any manner, even remotely” are

prohibited  is  labelled  by Mr. Nayyar  as  highly vague,  excessive  and

creates a chilling effect on dancers.   

55) Mr.  Nayyar  also  supported  his  aforesaid  arguments  by  citing

various judgments which shall be taken note of and discussed at a later

stage.

56) Rebuttal to the aforesaid arguments was given by Mr. Naphade,

learned senior  advocate,  who appeared for  the State of  Maharashtra

and  supported  by  Ms.  Pinky  Anand,  learned  ASG  who  represented

Union of India.   

57) Mr.  Naphade  opened  his  argument  with  the  submission  that

56

arbitrariness  or  unreasonableness  are  value  judgments  and  any

legislation on the aforesaid parameters is to be judged keeping in mind

the ‘context’  in  which such a legislation is  passed.   Adverting to the

context  of  the impugned Act,  he referred to the preamble of  the Act

which stipulates as under:

"An  Act  to  provide  for  prohibition  of  obscene  dance  in  hotels, restaurants, bar rooms and other establishments and to improve the conditions of work, protect the dignity and safety of women in such places with a view to prevent their exploitation.”

58) From the above, the learned senior counsel pointed out that the

Act sought to achieve the following objectives:

(a) prohibit obscene dance in hotels, restaurants, bar rooms and other

establishments;  

(b) improve  the  conditions  of  work  of  women  dancers  and  other

women working therein; and

(c) protect the dignity as well as safety of such women.

59) He  emphasised  that  moral  structure  of  the  Act  flows  from the

aforesaid  preamble.   According  to  him,  it  could  not  be  disputed  by

anybody, nor was it done by the petitioners, that the aforesaid objectives

were lawful  and in larger public interest,  particularly in the interest of

women working at such places.  Proceeding on that basis, Mr. Naphade

submitted  that  insofar  as  controlling  the  activity  through  licensing  is

concerned, the same is accepted by the petitioners as well.  Section 3 of

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the  Act  which  mandates  obtaining  a  licence  for  starting  a  hotel,

restaurant, bar room or any other place where dances are staged, has

not  been  challenged.  This  is  core  of  the  Act.   Further,  there  is  no

challenge to Section 14 which gives power to the State Government to

make rules in furtherance of the objectives i.e. to carry out the purpose

of the Act.  It was also not the case of the petitioners that the impugned

Act  or  Rules  framed  thereunder  were  ultra  vires  and  not  within  the

competence of the State legislature insofar as the Act is concerned or

the State Government insofar as the Rules are concerned.  In addition to

Section 3 of the Act dealing with the licensing requirement, he referred

to Section 6 of the Act which deals with eligibility criteria for grant of such

licenses and submitted that the idea was to have stringent conditions to

achieve the purpose behind the Act.   

60) With this introductory remarks, Mr. Naphade dealt with individual

provisions of the Act and the Rules in the following manner:

Section  2(8)  of  the  Act  which  defines  ‘obscene  dance’  was

defended by arguing that it is not vague or contains imprecise definition

as it includes a dance which is aimed at arousing the ‘prurient interest’ of

the audience and where that is the only purpose behind a dance.  He

argued that the expression ‘prurient interest’ has a definite connotation

in dictionary and this expression finds presence in Section 292 of the

IPC as well which makes obscenity as an offence.  Therefore, argued

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the  learned  senior  counsel,  it  confirms  to  judicially  manageable

standards.   Further  submission  in  this  behalf  was  that,  no  doubt,

standards of morality have changed over a period of time, however, the

moot  question is,  where to  draw the line.  This  has  to  be  left  to  the

legislature.  In the present case, legislature in its wisdom has considered

particular types of dances as obscene which in the wisdom of legislature

is the reasonable standard of obscenity.  He also argued that the very

test  of  “reasonableness”  is  fluid  and,  therefore,  it  is  situation centric.

Since,  the  Act  aims  at  prohibiting  obscene  dance,  the  standard  of

obscenity has to be looked into from that perspective in mind.  He relied

upon  the  judgment  in  the  case  of  Ranjit   D.  Udeshi  v.  State  of

Maharashtra17 where the term ‘obscene’ has been construed by the

Court in the following manner:

"8. Speaking in terms of the Constitution it can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression, because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant  for the expression of free opinions to change political or social conditions or  for  the  advancement  of  human knowledge.  This  freedom is subject  to  reasonable  restrictions  which  may  be  thought necessary in the interest of the general public and one such is the interest of public decency and morality. Section 292 of the Indian Penal Code manifestly embodies such a restriction because the law  against  obscenity,  of  course,  correctly  understood  and applied,  seeks  no  more  than  to  promote  public  decency  and morality. The word obscenity is really not vague because it is a word  which  is  well  understood  even  if  persons  differ  in  their attitude  to  what  is  obscene  and  what  is  not.  Lawrence thought James Joyce's Ulysees to be an obscene book deserving

17 (1965) 1 SCR 65

59

suppression but it was legalised and he considered Jane Eyre to be pornographic but very few people will agree with him.

9.  The former he thought so because it dealt with the excretory functions and the latter because it dealt with sex repression. (See Sex,  Literaturet  Censorship  pp.  26,  201).  Condemnation  of obscenity  depends as  much upon the  mores  of  the people  as upon the individual. It is always a question of degree or as the lawyers are accustomed to say, of where the line is to be drawn. It is, however, clear that obscenity by itself has extremely poor value in the propagation of ideas, opinions and informations of public interest or profit. When there is propagation of ideas, opinions and photographs collected in book form without the medical text would may become different because then the interest of society may tilt the scales in favour of free speech and expression. It is thus that books  on  medical  science  with  intimate  illustrations  and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in  book  form  without  the  medical  text  would  certainly  be considered to be obscene. Section 292 of the Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid  in  view  of  the  second  clause  of  Article  19.  The  next question is when can an object be said to be obscene?

xx xx xx

28.  This is where the law comes in. The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings. No doubt this is treating with sex by an artist and hence there is some poetry  even  in  the  ugliness  of  sex.  But  as  Judge  Hand  said obscenity  is  a  function  of  many  variables.  If  by  a  series  of descriptions of  sexual  encounters  described in  language which cannot be more candid, some social good might result to us there would be room for considering the book.  But  there is no other attraction in the book. As, J.B. Priestley said, “Very foolishly he tried  to  philosophize  upon  instead  of  merely  describing  these orgiastic impulses: he is the poet of a world in rut, and lately he has  become its  prophet,  with  unfortunate  results  in  his  fiction. [The  English  Novel,  p.  142  (Nelson)].  The  expurgated  copy  is available but the people who would buy the un-expurgated copy do not care for it. Perhaps the reason is as was summed up by Middleton Murray:

“Regarded  objectively,  it  is  a  wearisome  and  oppressive book;  the  work  of  a  weary  and  hopeless  man.  It  is remarkable,  indeed  notorious  for  its  deliberate  use  or unprintable words.”

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“The whole book really consists of detailed descriptions of their  sexual  fulfilment.  They are  not  offensive,  sometimes very beautiful, but on the whole strangely wearisome. The sexual  atmosphere  is  suffocating.  Beyond  this  sexual atmosphere  there  is  nothing,  nothing,”  [Son  of  Women (Jonathan Cape)].

No doubt Murray says that in a very little while and on repeated readings the mind becomes accustomed to them but he says that the value of the book then diminishes and it leaves no permanent impression. The poetry and music which Lawrence attempted to put into sex apparently cannot sustain it long and without them the book is nothing. The promptings of the unconscious particularly in the region of sex is suggested as the message in the book. But it is not easy for the ordinary reader to find it. The Machine Age and its impact on social  life which is its secondary theme does not interest the reader for whose protection, as we said, the law has been framed.”

61) Mr. Naphade submitted that this position has not undergone any

change by the judgments of this Court rendered thereafter.  Thus, the

test to be applied is as to whether a particular dance performance has

tendency to deprave and corrupt by immoral influences.  According to

him, in a given case, this test/standard can always be applied by the

Court to determine whether a particular dance performance is obscene

or  not.   Mr.  Naphade  also  relied  upon  the  judgment  in  the  case  of

Pawan  Kumar  v.  State  of  Haryana  &  Anr.18 where  the  expression

‘moral turpitude’ is defined by judiciary fixing standards of morality by

linking  it  with  obscenity  and  it  comes  from  the  societal  norms  and

thinking about the same, which is highlighted in the following passage

from that judgment: 18 (1996) 4 SCC 17

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"12. “Moral turpitude” is an expression which is used in legal as also  societal  parlance  to  describe  conduct  which  is  inherently base, vile, depraved or having any connection showing depravity. The Government  of  Haryana while  considering the question  of rehabilitation of  ex-convicts  took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for  offences  involving  moral  turpitude  should  not  however  be taken  in  government  service.  A  list  of  offences  which  were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not  found  enlisted  in  the  list  of  offences  constituting  moral turpitude.  Later,  on  further  consideration,  the  Government  of Haryana  on  17/26-3-1975  explained  the  policy  decision  of 2-2-1973  and  decided  to  modify  the  earlier  decision  by streamlining determination of moral turpitude as follows:

“…  The  following  terms  should  ordinarily  be  applied  in judging whether a certain offence involves moral turpitude or not;

(1)  whether  the  act  leading  to  a  conviction  was  such  as could shock the moral conscience of society in general.

(2) whether the motive which led to the act was a base one.

(3) whether on account of the act having been committed the perpetrator  could  be  considered  to  be  of  a  depraved character or a person who was to be looked down upon by the society.

Decision  in  each  case  will,  however,  depend  on  the circumstances of the case and the competent authority has to  exercise  its  discretion  while  taking  a  decision  in accordance  with  the  above-mentioned  principles.  A list  of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included  in  it  but  which  in  certain  situations  and circumstances may involve moral turpitude.”

Section 294 IPC still remains out of the list. Thus the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirements of the policy decision above-quoted.”

62

62) Mr.  Naphade  also  banked  upon  the  following  discussion  in

Director  General,  Directorate  General  of  Doordarshan  &  Ors. v.

Anand Patwardhan & Anr.19:

"22. One of the most controversial issues is balancing the need to protect  society  against  the  potential  harm  that  may  flow  from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and ideas. The Constitution guarantees freedom of expression but in Article 19(2) it also makes it clear that the State may impose reasonable restriction in the interest of public decency and morality.

23. The crucial question therefore, is, “what is obscenity?” The law relating  to  obscenity  is  laid  down in  Section  292 of  the  Penal Code, which came about by Act 36 of 1969.

24. Under the present Section 292 and Section 293 of the Penal Code, there is a danger of publication meant for public good or for bona fide purpose of science, literature, art or any other branch of learning  being  declared  as  obscene  literature  as  there  is  no specific provision in the Act for exempting them from operations of those sections.

25. The present provision is so vague that it becomes difficult to apply it. The purposeful omission of the definition of obscenity has led to attack of Section 292 of the Penal Code as being too vague to  qualify  as  a  penal  provision.  It  is  quite  unclear  what  the provisions mean. This unacceptably large “grey area”, common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators.

26. The Penal Code on obscenity grew out of  the English law, which made the court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to  adequate  law.  The  effect  of  provisions  granting  broad discretionary  regulatory  powers  is  unforeseeable  and  they  are open to arbitrary abuse.

27. In  Samaresh Bose  v.  Amal Mitra  [(1985) 4 SCC 289 : 1985 SCC (Cri) 523] it was observed by this Court: (SCC p. 314, para 29)

“The concept of obscenity is moulded to a very great extent by  the  social  outlook  of  the  people  who  are  generally

19 (2006) 8 SCC 433

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expected  to  read  the  book.  It  is  beyond  dispute  that  the concept of obscenity usually differs from country to country depending  on  the  standards  of  morality  of  contemporary society in different countries. In our opinion, in judging the question of obscenity, the judge in the first place should try to place himself in the position of the author and from the viewpoint of the author the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. The judge should  thereafter  place  himself  in  the  position  of  a reader of every age group in whose hands the book is likely to  fall  and  should  try  to  appreciate  what  kind  of  possible influence  the  book  is  likely  to  have  in  the  minds  of  the readers.  A judge should  thereafter  apply  his  judicial  mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292 IPC by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.”

28. This is one of the few liberal judgments the courts have given. The point to worry about is the power given to the Judge to decide what he/she thinks is obscene. This essentially deposits on the Supreme Court of India, the responsibility to define obscenity and classify matters coming on media as obscene or otherwise. This Court has time and again adopted the test of obscenity laid down by Cockburn, C.J. The test of obscenity is, whether the tendency of  the  matter  charged  as  obscenity  is  to  deprave  and  corrupt those whose minds are open to such immoral influences, and in whose hands a publication in media of this sort may fall.

xx xx xx

37.  In yet another case of  Ramesh  v.  Union of India  [(1988) 1 SCC 668 :  1988 SCC (Cri)  266]  this  Court  has observed that: (SCC p. 676, para 13)

“…  that  the effect  of  the words must  be judged from the standards  of  reasonable,  strong-minded,  firm  and courageous  men,  and  not  those  of  weak  and  vacillating minds, nor of those who scent danger in every hostile point of  view.  This  in  our  opinion,  is  the  correct  approach  in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law ‘the man on the top of Clapham omnibus’.”

 63) Another  judgment,  sustenance  wherefrom  was  drawn  by  the

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learned senior  counsel is  Ajay Goswami  v.  Union of India & Ors.20

wherein again ‘norms of the society’ test was applied by the Court in the

following manner:

"67. In judging as to whether a particular work is obscene, regard must  be  had  to  contemporary  mores  and  national  standards. While the Supreme Court in India held Lady Chatterley's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps “community mores and standards” played a part in the Indian Supreme Court taking a different view from the English jury. The test  has become somewhat outdated in the context of  the internet age which has broken down traditional barriers and made publications from across the globe available with the click of  a mouse.

xx xx xx

70. In  S. Rangarajan  v.  P. Jagjivan Ram  [(1989) 2 SCC 574] , while  interpreting  Article  19(2)  this  Court  borrowed  from  the American test of clear and present danger and observed: (SCC pp. 595-96, para 45)

“[The] commitment to freedom of expression demands that it cannot  be  suppressed  unless  the  situations  created  by allowing  the  freedom  are  pressing  and  the  community interest  is endangered. The anticipated danger should not be  remote,  conjectural  or  far-fetched.  It  should  have proximate  and  direct  nexus  with  the  expression.  The expression of  thought  should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a ‘spark in a power keg’.”

71. The test for judging a work should be that of an ordinary man of common sense and prudence and not an “out of the ordinary or hypersensitive  man”.  As  Hidayatullah,  C.J.  remarked  in  K.A. Abbas [K.A. Abbas v. Union of India, (1970) 2 SCC 780] : (SCC p. 802, para 49)

“If  the depraved begins to  see in  these things more than what an average person would, in much the same way, as it is  wrongly  said,  a  Frenchman  sees  a  woman's  legs  in everything, it cannot be helped.”

20 (2007) 1 SCC 143

65

xx xx xx

75.  The  definition  of  obscenity  differs  from  culture  to  culture, between communities within a single culture, and also between individuals  within  those  communities.  Many  cultures  have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions.

76. The term obscenity is most often used in a legal context to describe  expressions  (words,  images,  actions)  that  offend  the prevalent sexual morality. On the other hand, the Constitution of India guarantees the right to freedom of speech and expression to every citizen. This right will encompass an individual's take on any issue.  However,  this  right  is  not  absolute,  if  such  speech  and expression  is  immensely  gross  and  will  badly  violate  the standards of morality of a society. Therefore, any expression is subject  to  reasonable  restriction.  Freedom  of  expression  has contributed much to the development and well-being of our free society.”

64) Insofar  as  Section  6(4)  of  the  Act  is  concerned,  plea  of  Mr.

Naphade was that idea was to impose stringent licence conditions for

dance bars in order to avoid any possibility of obscene dance and that

was a rationale for keeping place of dance away from the place where

there is a discotheque or orchestra.   

65) Qua  Section 8(2), justification of the learned senior counsel was

that  this  provision  is  to  be  read  along  with  Section  8(1)  of  the  Act.

Section 8(1) makes the Act of using the place in contravention of Section

3  as  punishable  offence.   In  this  hue,  sub-section  (2)  of  Section  8

provides that such place would not be allowed for obscene dance or to

exploit any working woman for any immoral purpose at such a place,

making  such  Act  also  an  offence  punishable  under  the  Act.   In  that

66

sense,  argued  Mr.  Naphade,  Section  8(2)  is  a  separate  offence

prescribed in a separate law that is under the Maharashtra Act which is

distinct from Section 292 IPC.   

66) In respect of Section 8(4) of the Act which prescribes giving of tips

to dancers, Mr. Naphade defended the same with the submission that it

is a matter of cultural ethos of the society.  Herein, when the purpose is

to protect the dignity of women, such a prohibition would be justified.  In

this vein, his further argument in support of such a provision was that

showering money is a method of inducement which has to be checked.

In  any  case,  such  is  the  the  perception  of  the  State  prompting  the

legislature to make a provision of this kind, which cannot be labelled as

fanciful.  Mr. Naphade also referred to Section 354A of IPC which  has

widened the scope of ‘sexual harassment’ and made it an offence.  He

submitted that it can be treated as moral code of the society.  Therefore,

Section 8(4) has to be judged through such a lens.  In the alternative, he

argued  that  principle  of  severability  can  always  be  applied  and  the

provision should be saved by excising offending portions therefrom.

67) Rule 2(b) of the Rules which defines ‘criminal record’ was sought

to be justified on the ground that this provision is made to instill purity in

public life.  It takes its colour from ‘moral turpitude’ as mentioned in the

definition itself.  According to the learned senior counsel, the question

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was as to whether such a record has to be based on conviction or even

when  there  is  FIR/complaint  against  a  particular  person,  cognizance

whereof is taken by the Court. His suggestion, in this behalf, was that

this provision was capable of reading down and the Court was free to do

so.

68) Argument of the petitioners predicated on Article 19(1)(a) of the

Constitution,  namely, fundamental  rights of  the dance bars or  that  of

dancers was sought to be placated with the submission that balancing

between that right on the one hand and prevention of obscenity on the

other hand was necessitated.  In this behalf, he referred to clause (2) of

Article 19 as per which reasonable restriction can be imposed inter alia

in the interest of ‘public order, decency or morality’.  Therefore, morality

aspects had to be taken into consideration while adjudging the validity of

these provisions, argued the learned senior counsel.  On the same lines,

Mr. Naphade also tried to meet the argument based on Article 19(1)(g)

of the Constitution by taking shelter under clause (6) of Article 19 which

permits the State to make law imposing reasonable restrictions in the

interest of general public.

69) With respect to Schedule under Rule 3, Mr. Naphade’s defence of

Condition No. 2 thereof was that it ensures safety.  Likewise, Condition

No. 11 of Part A is a matter of policy and it is the prerogative of the law

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maker  to  fix  the  distance.   Regarding  Condition  No.  2  of  Part  B,

submission  of  the  learned  senior  counsel  was  that  it  is  based  on

economic reality that there is an exploitation of such working clause and,

therefore, the rule maker rightly laid down the condition that the working

women must be employed under a written contract on a monthly salary

which needs to be deposited in their  bank accounts.  Similarly, other

clauses were also in public interest and to achieve the purpose behind

the Act  qua clause (20) of Part B, specific submission was that right to

privacy comes to an end when there is a possibility of commission of

trying and this clause aimed at preventing such a crime.  Summing up

his arguments, Mr. Naphade took the matter to another level by arguing

that international trend is to frame the law based on morality.  Such a

noble purpose which this Act seeks to achieve cannot be countenanced.

He paraphrased it with the following legal proposition:

(i) Activity which has a criminal colour can always be regulated or

even banned by the legislature.   

(ii) Principle of  res extra commercium had to be kept in mind which

lays down that there is no fundamental right in those economic activities

which come under the aforesaid maxim. However, it is the State which

still  permits  these  activities  and,  therefore,  State  has  every  right  to

permit such an activity within a particular regulatory framework.  It is that

which was precisely done by the various provisions under the Acts and

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the Rules.

(iii) Test  of  reasonableness  is  contextual  and  varies  in  different

situations.   It  is  based on proportionality.  This test  would be stricter

where there is freedom of trade and such a stricter test is justified in the

present context.

70) Ms.  Pinky  Anand,  learned  ASG,  supported  and  adopted  the

aforesaid  submissions  of  Mr.  Naphade.   She  emphasised  that  the

present Act was regulatory and not prohibitory in nature.  Keeping in

view this purpose of the Act, earlier judgment of the year 2013 in the

case of  Indian Hotel and Restaurants Association (1) will not apply.

Another  submission  of  the  learned  ASG  was  that  the  Act  prohibits

obscenity,  which  is  even  otherwise  illegal  under  the  IPC,  therefore,

principle  of  res  extra  commercium would  apply.  She  referred  to  the

following judgments to buttress her submission:

(i) State of Bombay v. R.M.D. Chamarbaugwala & Anr.21

"41. It  will  be abundantly clear from the foregoing observations that  the  activities  which  have been condemned in  this  country from ancient times appear to have been equally discouraged and looked  upon  with  disfavour  in  England,  Scotland,  the  United States of America and in Australia in the cases referred to above. We find it  difficult  to  accept  the contention that  those activities which encourage a spirit of recklesss propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of  the  undiscerning  and improvident  common man and thereby lower his standard of living and drive him into a chronic state  of  indebtedness  and  eventually  disrupt  the  peace  and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of  trade,

21 1957 SCR 874

70

commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is  it  necessary  for  us  in  deciding  this  case  to  attempt  an exhaustive  definition  of  the  word  “trade”,  “business”,  or “intercourse”. We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities from their very nature and in essence are extra-commercium although the external  forms,  formalities  and  instruments  of  trade  may  be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution.”

(ii) State  of  Tamil  Nadu  represented  by  its  Secretary,  Home,

Prohibition and Excise Department & Ors. v. K. Balu & Anr.22

"16.  We are conscious of  the fact  that  the policy of  the Union Government  to  discontinue  liquor  vends  on  National  highways may not eliminate drunken driving completely. A driver of a motor vehicle can acquire liquor even before the commencement of a journey or, during a journey at a place other than a national or State  highway.  The  law  on  preventing  drunken  driving  also requires  proper  enforcement.  Having  said  this,  the  Court  must accept  the policy of  the Union Government  for  more than one reason. First and foremost, it is trite law that in matters of policy, in this case a policy on safety, the Court will defer to and accept a considered view formed by an expert body. Second, as we have seen, this view of the Union Government is based on statistics and data which make out  a consistent  pattern year  after  year. Third,  the  existence  of  liquor  vends  on  highways  presents  a potent  source for  easy availability  of  alcohol.  The existence of liquor vends, advertisements and signboards drawing attention to the  availability  of  liquor  coupled  with  the  arduous  drives particularly in heavy vehicles makes it  abundantly necessary to enforce the policy of the Union Government to safeguard human life.  In doing so, the Court  does not fashion its own policy but enforces the right to life under Article 21 of the Constitution based on the considered view of expert bodies.”

22 (2017) 2 SCC 281

71

Consideration by the Court:

71) In  Indian Hotel and Restaurants Association (1) case, Section

33A was held to be unconstitutional as it was found foul of Articles 14,

19(1)(a) and 19(1)(g) of the Constitution.  We have reproduced Section

33A of the said Act as well as the Statement of Objects and Reasons

appended  to  the  Bill  vide  which  the  aforesaid  amendment  was

introduced.  Statement of Objects and Reasons thereto shows that the

main purpose behind inserting Section 33A in Maharashtra Police Act

was to check the performance of dances in eating houses, permit rooms

or bear bars in an indecent manner.  It noted that such places to whom

licenses to hold dance performance were granted, were permitting the

performance  of  dances  in  an  indecent,  obscene and vulgar  manner.

Further, such performance of dances were giving rise to exploitation of

women and were derogatory to the dignity of women.  They were also

likely  to  deprave,  corrupt  or  injure  the  public  morality  or  morals.

Because of these reasons, the Government of Maharashtra considered

it  expedient  to  prohibit  altogether  the  holding  of  such  dance

performances  in  eating  houses  or  permit  rooms  or  bear  bars.   To

achieve this purpose, Section 33A prohibits holding of the performance

of dance, of any kind or type, in any eating house, permit room or bear

bar.  To make this prohibition effective, all  such licenses given earlier

were  cancelled  by  the  said  statutory  provision.   Holding  of  such

72

performances was also made a punishable offence.  At the same time,

Section 33B provided exception to Section 33A inasmuch as Section

33A was  made  inapplicable  in  certain  cases.   As  per  Section  33B,

provisions of Section 33A was not to apply to the holding of the 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.

72) Two features of these provisions may be noted:

(i) In  the  first  place,  there  was  absolute  prohibition  of  dance

performances  in  the  establishments  covered  by  Section  33A.  Such

dance performances were treated,  per  se,  obscene.  In  contrast,  the

present regime prohibits ‘obscene dance’ and defines this term as well.   

(ii) In contrast, in the establishments covered by Section 33B, there

was no bar on such performances.

73) Striking down the provisions of Section 33A as discriminatory, the

Court  held  that  there  was no  reasonable  basis  for  any classification

between those places where such performance of dance was prohibited

73

under Section 33A and those places where such a performance was

permitted as specified in Section 33B of  the Maharashtra Police Act.

Discussion in this behalf is contained, more specifically, in paras 118 to

122 of the judgment which have already been reproduced above.  That

reason may not apply to the impugned Act and Rules herein inasmuch

as no such distinction is made now.  At  the same time, some of the

discussion from this judgment would be relevant.  The Court also held

that Section 33A offended Article 19(1)(a) of the Constitution inasmuch

as dance is a form of expression and the said provision amounted to

unreasonable restriction which is not protected by Article 19(2) of the

Constitution.  Further, the basis on which Section 33A was found to be

violative of Article 19(1)(g) may also be relevant.  We would, therefore,

like to cull out the main features of the discussion contained in  Indian

Hotel  and  Restaurants  Association  (1)  Indian  Hotel  and

Restaurants Association (1).  These are:

(a) There was little  or  no material  on the basis of  which the State

could have concluded that dance in the prohibited establishments was

likely to deprave, or injure the public morality or morals.

While making these remarks,  the Court  specifically rejected the

findings in PRAYAS and Shubhada Chaukar's Reports.

(b) Argument of the State to justify the provision based on intelligible

differentia, viz., that women who perform in the banned establishment

74

come from grossly deprived backgrounds and are a vulnerable lot who

are trafficked into bar dancing, was specifically rejected by pointing out

that there was no material/evidence to support such a plea.  Nothing in

this behalf was stated in the Statement of Objects and Reasons and this

plea was projected for the first time in the affidavit filed before the High

Court.  The Court, in the process, held that such a plea was based on

PRAYAS and Shubhada Chaukar's Reports.  In the opinion of the Court,

isolated examples given therein would not be sufficient to establish the

connection of dance bars covered under Section 33A with trafficking.   

(c) Performance of dance in such places could not be covered by the

principle of  res extra commercium.  Prohibition on such a commercial

activity,  which  was  a  fundamental  right,  had  to  meet  the  test  of

‘reasonable restriction’.  However, held the Court, the State had failed to

establish that the restriction is reasonable or that it is in the interest of

general public.

(d) There are already sufficient rules and regulations and legislations

in place which, if efficiently apply, would control (if not eradicate) all the

dangers to the society enumerated in the preamble and the Statement of

Objects and Reasons of the impugned legislation.   Such legislations as

well  as rules and regulations were specifically noted in Paras 127 to

131.  

75

(e) The Court held, in para 132 of the judgment, that the Rules under

the Bombay Police Act have been framed in the interest of public safety

and social welfare and to safeguard the dignity of women as well as to

prevent exploitation of women.  There is no material placed on record by

the State to show that it was not possible to deal with the situation within

the  framework  of  the  existing  laws,  except  for  the  unfounded

conclusions  recorded  in  the  Preamble  as  well  as  the  Statement  of

Objects and Reasons.   

(f) Argument  of  the  State  that  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 the problem of ever increasing

dance bars, was specifically rejected.

(g) The Court also mentioned the effect of Section 33A in the following

words:

"136. The end result of the prohibition of  any form of dancing in the establishments covered under Section 33-A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have been 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).”

 74) In contrast, the object which the impugned Act seeks to subserve

is to provide for prohibition of obscene dance in hotels, restaurants, bar

rooms and other establishments.  It also seeks to improve the conditions

76

of work, as well as to protect the dignity and safety of women in such

places with a view to prevent their exploitation.  As pointed out above,

this  Act  applies  to  all  such  hotels,  restaurants,  bar  rooms  and

establishments and the Act does not carve out two categories of such

places unlike Sections 33A and 33B of the Maharashtra Police Act.  In

that sense, argument of discrimination based on creating two classes

without any reasonable basis, is not available, nor was it argued.  It also

cannot  be  denied  that  the  aforesaid  objectives  are  in  general  public

interest inasmuch as nobody can argue that there should not be any

prohibition  of  dances  which  are  obscene,  nor  can  it  be  argued  that

suitable provisions should not be made to protect the dignity and safety

of women in such places with a view to prevent their exploitation.  It is

for this reason that the petitioners have not questioned the validity of the

Act and the Rules framed therein, in their entirety.  Instead, they feel

aggrieved  by  certain  provisions  which,  according  to  them,  are

unreasonable and have the effect of putting a complete prohibition on

any type of dance performances, even if they are not obscene.  They

have also argued that the conditions and restrictions which are imposed

by the Act and the Rules for obtaining a licence under the said Act are

so severe and impossible to perform, with the result no person would be

able to obtain a licence under this Act.  It is also emphasised that in spite

of  categorical  observations  in  Indian  Hotel  and  Restaurants

77

Association (1)  case that  there was no material  before the State to

support  its  plea  that  women  at  such  places  were  exploited,  the

legislature  has  passed  the  Act  almost  on  the  same  lines  on  which

Section 33A in Maharashtra Police Act was inserted, without any fresh

exercise or empirical study in this behalf.   These arguments shall  be

touched upon while dealing with the specific provisions of the Act and

the Rules, validity whereof is questioned in these petitions.  As a matter

of  fact,  we  may  point  out  at  this  juncture  itself,  that  not  a  single

establishment  is  given  any  licence  so  far  under  Section  3  of  the

impugned Act.  This was candid statement made by Mr. Naphade at the

bar.  It shows that some of the conditions and restrictions imposed by

the Act and the Rules are such which are impossible to perform and,

therefore, in each and every case, without exception, the applications for

grant of licence under this Act have been rejected.   

75) We would like to deal at this stage with the argument of morality,

as advanced by by Mr. Naphade.  The question is to what extent the

State can go in imposing ‘morality’ on its citizens? In the first instance,

we would take note of certain judgments of this Court touching upon this

aspect.   Following discussion in  State of  Punjab & Anr.  v.  Devans

Modern Breweries Ltd. & Anr.23 may be relevant in this behalf:

"48.   Dealing  in  a  commodity  which  is  governed  by  a  statute cannot be said to be inherently noxious and pernicious. A society

23 (2004) 11 SCC 26

78

cannot condemn a business nor there exists a presumption in this behalf  if  such  business  is  permitted  to  be  carried  out  under statutory enactments made by the legislature competent therefor. The legislature being the final arbiter as to the morality or otherwise  of  the  civilised  society  has  also  to  state  as  to business in which article(s) would be criminal in nature. The society will have no say in the matter. The society might have a say in the matter which could have been considered in a court of law only under common-law right  and not  when the rights and obligations  flow  out  of  statutes  operating  in  the  field.  Health, safety and welfare of the general public may again be a matter for the  legislature  to  define  and  prohibit  or  regulate  by  legislative enactments.  Regulatory statutes are enacted in conformity with clause  (6)  of  Article  19  of  the  Constitution  to  deal  with  those trades also which are inherently noxious and pernicious in nature; and furthermore, thereby sufficient measures are to be taken in relation to health, safety and welfare of the general public. The courts while interpreting a statute would not take recourse to such interpretation whereby a person can be said to have committed a crime although the same is not a crime in terms of the statutory enactment.  Whether  dealing  in  a  commodity  by  a  person constitutes  a  crime or  not  can only  be  the subject-matter  of  a statutory enactment.

xx xx xx

51.  From  the  analysis  of  decisions  rendered  by  this  Court  in Cooverjee  B.  Bharucha  [AIR  1954  SC  220  :  1954  SCR 873], R.M.D. Chamarbaugwala  [AIR 1957 SC 699 :  1957 SCR 874], Har Shankar  [(1975) 1 SCC 737 : AIR 1975 SC 1121 : (1975) 3 SCR 254] or Khoday Distilleries [(1995) 1 SCC 574] it will appear that  a  person cannot  claim any right  to  deal  in  any obnoxious substance on the ground of public morality. The State, therefore, is entitled to completely prohibit any trade or commerce in potable liquor. Such prohibition, however, has not been imposed. Once a licence is granted to carry on any trade or business, can it be  said  that  a  person  is  committing  a  crime  in  carrying  on business in liquor although he strictly complies with the terms and conditions of licence and the provisions of the statute operating in the field? If the answer to the said question is to be rendered in the affirmative it will create havoc and lead to anarchy and judicial vagaries. When it is not a crime to carry on such business having regard to the fact that a person has been permitted to do so by the State in compliance with the provisions of the existing laws, indisputably  he  acquires  a  right  to  carry  on  business.  Even in respect to trade in food articles or other essential  commodities either  complete  prohibition  or  restrictions  are  imposed  in  the matter of carrying on any trade or business, except in terms of a

79

licence granted in that behalf by the authorities specified in that behalf. The distinction between a trade or business being carried out legally or illegally having regard to the restrictions imposed by a statute would have, therefore, to be judged by the fact as to whether such business is being carried out in compliance with the provisions of the statute(s) operating in the field or not.  In other words, so long it is not made impermissible to carry on such business by reason of a statute, no crime can be said to have been committed in relation thereto. The doctrine of res extra commercium,  thus,  would  not  be  attracted,  whence  a  person carries  on  business  under  a  licence  granted  in  terms  of  the provisions of the regulatory statutes.

xx xx xx

317.  The matter is covered by statutory provisions.  The court cannot interpret  equality, freedom or commerce clauses of the Constitution in such a manner so as to take away the rights and obligations created under a statute on the ground of  public  morality  or  otherwise.  When a  statute  permits  a trade,  morality  takes  a  back  seat  as  “legislature”  as contradistinguished from “judiciary” is supposed to be the authority  to  consider  the  morality  or  otherwise  of  certain things prevailing in the society.

76) We may also note, with profit, the following discussion in Gobind

v. State of Madhya Pradesh & Anr.24:

"22. There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be  a  compelling  as  well  as  a  permissible  State  interest,  the characterization of a claimed right as a fundamental privacy right would  be  of  far  less  significance.  The  question  whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered  for  the  purpose  of  this  case  and therefore  we refuse to enter the controversial thicket whether enforcement of morality is a function of State.”

24 (1975) 2 SCC 148

80

Some  of  the  moral  aspects  are  discussed  in  the  context  of

obscenity in the judgments cited by Mr. Naphade as well.

77) It needs to be borne in mind that there may be certain activities

which the society perceives as immoral per se.  It may include gambling

(though that is also becoming a debatable issue now), prostitution etc.  It

is also to be noted that standards of morality in a society change with

the passage of time.  A particular activity, which was treated as immoral

few decades ago may not be so now.  Societal norms keep changing.

Social  change  is  of  two  types:  continuous  or  evolutionary  and

discontinuous or revolutionary25.  The most common form of change is

continuous.   This  day-to-day  incremental  change  is  a  subtle,  but

dynamic,  factor  in  social  analysis.   It  cannot  be  denied  that  dance

performances,  in  dignified forms,  are socially acceptable and nobody

takes exceptions to the same.  On the other hand, obscenity is treated

as  immoral.   Therefore,  obscene  dance  performance  may  not  be

acceptable and the State can pass a law prohibiting obscene dances.

However, a practice which may not be immoral by societal standards

cannot be thrusted upon the society as immoral by the State with its own

notion of  morality and thereby exercise ‘social  control’.   Furthermore,

and in any case, any legislation of this nature has to pass the muster of

25 See A. Etzioni and E. Etzioni (eds.), Social Change (1964); W. Moore, Social  Change (1963), W. Moore and R. Cook (eds.),  Readings on Social Change (1967).

81

constitutional provisions as well.  We have examined the issues raised

in the aforesaid context.

78) This brings us to the Principle of res extra commercium.  Insofar as

dance performances are concerned, it has already been held that it is

not  res  extra  commercium.   We would,  at  this  stage,  again  refer  to

Indian Hotel and Restaurants Association (1)  where these aspects

are dealt with as under:

(i) Human Trafficking:  The State Government contended that several

women performers are victims of illegal trafficking, or minors, and dance

bars are used for soliciting flesh trade.  It was suggested that bar girls

hail from depraved backgrounds, and hence, vulnerable to prostitution

and other  offences under  the Immoral  Traffic  (Prevention)  Act,  1956.

This Court entirely rejected the said contention in the following words:

"119.  ...A perusal of the Objects and Reasons would show that the impugned legislation proceed on a hypothesis that different dance bars are being used as meeting points  of  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  33-A  with  trafficking.  We, therefore,  reject  the  submission  of  the  appellants  that  the ban  has  been  placed  for  the  protection  of  the  vulnerable women.”

(emphasis added)  

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(ii) Injury  to  Public  Morals:  TheCourt  categorically  rejected  the

contention that the dance bars affect or cause harm to public morale.  In

pertinent part, this Court stated that:

"120.  ..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...”

(iii) Res Extra Commercium: The State Government  contended that

the  dance  performances  in  such  establishments  affect  the  dignity  of

women and leads to corruption of public morals.  Thus, the respondent

justified that the prohibition is a reasonable restriction necessary “in the

interest of general public” as under Article 19(6) of the Constitution.  This

Court  categorically  rejected  the  said  contention,  and  held  that  the

respondent “failed to establish that the restriction is reasonable or that it

is in the interest of general public”.  This Court further added that the

prohibition fails to satisfy the doctrine of ‘direct and inevitable effect’ to

justify such restriction,  and the insufficiency of  the existing regulatory

framework.

79) Keeping in mind the aforesaid principles, we advert to the specific

provisions.   

Re: Section 2(8)(i) of the Act

80) Section 2(8) defines obscene dance.  In the main body, it states

that any dance which comes within the meaning of Section 294 of IPC

83

and any other law for time being in force, shall be treated as ‘obscene

dance’.  To this extent, there is no quarrel.  The argument is that the

definition of obscene dance is expanded beyond Section 294 of the IPC

by specifically including following forms of dance:

"2(8)(i)  which is designed only to arouse the prurient interest of the audience; and

(ii)   which  consists  of  a  sexual  act,  lascivious  movements, gestures for the purpose of sexual propositioning or indicating the availability  of  sexual  access to the dancer, or  in  the course of which, the dancer exposes his or her genitals or, if a female, is topless;”

81) Insofar as clause (ii) is concerned, it is a reflection of Section 294

of IPC.  Therefore, the petitioners have not taken any exception to this

provision.   The  grievance  is  on  the  inclusion  of  clause  (i).   The

submission is  that  the expression ‘arouse the prurient  interest  of  the

audience’ is vague, incapable of giving precise meaning thereto.  It may

be difficult to accept such a submission for the reason that in explaining

as  to  what  kind  of  books,  pamphlets,  papers,  writings,  drawings,

paintings, representations, figures or any other object will be deemed as

obscene, Section 292 of the IPC itself uses this very expression when it

lays down that such books etc. shall be deemed to be obscene if they

are ‘lascivious or appeals to the prurient interest...’.  In a way, therefore,

Section 2(8) incorporates the definition of obscenity as laid down in the

IPC which also makes obscene books etc. (Section 292 IPC) as well as

obscene acts and songs (Section 294 IPC) as punishable offences.  

84

82) Concise Oxford Dictionary (Tenth Edition, revised) defines the term

‘prurient’ as under:

"Prurient – adj.  Having or encouraging an excessive interest  in sexual matters. - Derivatives prurience n. pruriency n. pruriently adv. - origin C16 (in the sense ‘having a craving’):  from L. prurient-, prurire ‘itch, long, be wanton’.”

83) Other dictionary meanings given to this expression are:

"(i)   Characterised  by  an  inordinate  interest  in  sex;  prurient thoughts.  When arousing or appealing to an inordinate interest in sex; prurient literature.

(ii)   Inordinately  interested  in  matters  of  sex,  lascivious.   In Psychology, a person who is unusually or morbidly interested in sexual  thoughts  or  practices  is  known  as  prurient.   Likewise, anything which excites or encourages lustfullness and/or eroticism is termed as prurient.  As per English language, therefore, such literature or  other  acts  which are marked or  tending to arouse sexual desire or interest or are of laturus, salacious, lascivious, voyeuristic would be treated as prurient and be categorised as obscene.”

84) Thus, prurient interest in the context of dance performance would

be a performance which has or which encourages an excessive interest

in sexual matters.   

85) We may also point out that the expression ‘prurient interest’ has

come up for judicial determination as well.  The U.S. Supreme Court in

Brockett v.  Spokane  Arcades  Inc.26 has  discussed  the  issue  of

obscenity  and,  in  the  process,  specifically  dealt  with  the  expression

‘prurient’, as can be discerned from the following observations:

26 1985 SCC Online US SC 165: 472 US 491 (1985) : 105 S.Ct. 2794 : 86 L.Ed.2d 394

85

"9.  The Court  of  Appeals  was of  the view that  neither  Roth v. United  States,  354  U.S.  476,  77  S.Ct.  1304,  1  L.Ed.2d  1498 (1957),  nor  later  cases  should  be  read  to  include  within  the definition of obscenity those materials that appeal to only normal sexual  appetites.  Roth  held  that  the  protection  of  the  First Amendment did not extend to obscene speech, which was to be identified by inquiring "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."Id., at 489, 77 S.Ct., at 1311 (footnote omitted). Earlier in its opinion,  id., at 487,  n.  20,  77  S.Ct.,  at  1310,  n.  20,  the  Court  had  defined "material which deals with sex in a manner appealing to prurient interest" as:

"I.e.,  material  having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows:

"  '.  .  .  Itching;  longing;  uneasy  with  desire  or  longing;  of persons,  having  itching,  morbid,  or  lascivious longings;  of desire, curiosity, or propensity, lewd. . . .'

"Pruriency is defined, in pertinent part, as follows: "  '.  .  .  Quality  of  being  prurient;  lascivious  desire  or thought. . . .'

"See also Mutual Film Corp. v. Industrial Comm'n, 236 U.S. 230, 242 [35 S.Ct. 387, 390, 59 L.Ed. 552 (1915) ] where this Court said as to motion pictures: '.  . . They take their attraction from the general interest, eager and wholesome it may be,  in  their  subjects,  but  a  prurient  interest  may  be excited  and  appealed  to.  .  .  .'  (Emphasis  added.)  "We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I.,  Model  Penal  Code,  §  207.10(2)  (Tent.Draft  No.  6, 1957), viz.:

"  '.  .  .  A thing  is  obscene  if,  considered  as  a  whole,  its predominant appeal is to prurient interest, i.e., a shameful or morbid  interest  in  nudity, sex,  or  excretion,  and if  it  goes substantially  beyond  customary  limits  of  candor  in description  or  representation  of  such  matters.  .  .  .'  See Comment, id., at 10, and the discussion at page 29 et seq."

xx xx xx

12. The Court of Appeals was aware that  Roth  had indicated in footnote 20 that material  appealing to the prurient interest  was

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"material having a tendency to excite lustful thoughts" but did not believe  that  Roth  had  intended  to  characterize  as  obscene material that provoked only normal, healthy sexual desires. We do not differ with that view. As already noted, material appealing to the  "prurient  interest"  was  itself  the  definition  of  obscenity announced in Roth; and we are quite sure that by using the words "lustful thoughts" in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal.  At  the  end  of  that  footnote,  as  the  Court  of  Appeals observed,  the Roth opinion  referred  to  the  Model  Penal  Code definition of obscenity—material whose predominate appeal is to "a shameful  or morbid interest in nudity, sex, or excretion" and indicated that it perceived no significant difference between that definition and the meaning of  obscenity  developed in the case law. This effectively negated any inference that "lustful thoughts" as used earlier in the footnote was limited to or included normal sexual responses. [ This conclusion is bolstered by a subsequent footnote, 354 U.S., at 489, n. 26, 77 S.Ct., at 1311, n. 26, referring to  a  number  of  cases  defining  obscenity  in  terms  of  "lust"  or "lustful." See  Parmelee v. United States,  72 App.D.C. 203, 210, 113  F.2d  729,  736  (1940)  (material  is  protected  if  "the  erotic matter  is  not  introduced  to  promote  lust");  United  States  v. Dennett, 39 F.2d 564, 569 (CA2 1930) (sex education pamphlet not obscene because tendency is to "rationalize and dignify [sex] emotions rather than to arouse lust"); United States v. One Book Called "Ulysses," 5 F.Supp. 182, 184 (SDNY 1933), aff'd, 72 F.2d 705 (CA2 1934) (meaning of the word "obscene" is "[t]ending to stir  the  sex  impulses  or  to  lead  to  sexually  impure  and lustful thoughts"); Commonwealth v. Isenstadt, 318 Mass. 543, 549-550, 62  N.E.2d  840,  844  (1945)  (material  is  obscene  if  it  has  "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire"); Missouri v. Becker, 364 Mo. 1079, 1085, 272 S.W.2d 283, 286 (1954) (materials are obscene if they "incite lascivious thoughts, arouse lustful desire"); Adams Theatre Co. v. Keenan,  12 N.J. 267, 272, 96 A.2d 519, 521 (1953) (BRENNAN, J.) (question is whether "dominant note of the presentation is erotic allurement 'tending to excite lustful and lecherous  desire'  ").]  It  would  require  more  than  the  possible ambiguity  in  footnote  20  to  lead  us  to  believe  that  the  Court intended  to  characterize  as  obscene  and  exclude  from  the protection  of  the  First  Amendment  any  and  all  speech  that aroused any sexual responses, whether normal or morbid.”

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86) South  African  Court  followed  the  aforesaid  American  approach,

which can be seen from the following discussion in Patrick v. Minister

of Safety and Security27:

"40.  Attempts  to  produce  and  apply  a  definitive,  certain  and satisfactory  definition  of  obscenity  have  taxed  the  ingenuity  of American  judges.  In  Jacobellis v.  Ohio, Justice  Potter  Stewart famously  declared:  “I  shall  not  today  attempt  further  to  define [obscenity]  … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” [378 U.S. 184, 197 (1964) (concurring).] The Court has attempted to clarify the Miller test by defining  a  “prurient”  interest  in  sex  as  a  “shameful  or  morbid” interest, as opposed to a “normal and healthy” interest. [Brockett v.  Spokane Arcades, Inc.,, 472 U.S. 491, 504-05 (1985).] In my opinion, that elaboration does not, in itself, furnish a great deal of guidance.”

87) Even  Delhi  High  Court  has  accepted  the  manner  in  which

American Courts have dealt with the subject, which can be seen from

the following observations in  Amitabh Bachhan Corporation Ltd.  v.

Om Pal Singh Hoon28:

"22. Question also arose before the U.S. Supreme Court in F.C.C. v. Pacifica Foundation (1978) 438 U.S. 726) as to the meaning of of word ‘indecent’. It was contended, relying on certain rulings that the  particular  words  used  in  the  radio  broadcast  were  not ‘obscene’  and  therefore  not  ‘indecent’,  as  both  words  were synonymous. The majority of  the Court  rejected the contention. The argument was stated as follows: “Pacifica argues, however, that  this  Court  has  construed  the  term  ‘indecent’  in  related statutes as obscene”. Rejecting the same, Stevens, J held:

“The words ‘obscene, indecent or profane’ are disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of ‘indecent’ merely refers to non-conformance with accepted standards of morality.”

27 1996 SCC Online ZACC 8 : [1996] ZACC 7 28 1996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB)

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He quoted the meaning from Webster's Third New International Dictionary  (1960):  “Unseemly,  not  conforming  to  generally accepted standards of morality”.

88) This Court in Raj Kapoor & Ors. v. State & Ors.29 considered the

question:  When can  a  film to  be  publicly  exhibited  be  castigated  as

prurient and obscene and violative of norms against venereal depravity.

Thus, nowhere it is challenged as a vague term, incapable of precise

definition.   

89) It,  therefore,  cannot  be  said  that  a  dance  which  is  aimed  at

arousing the prurient interest of the audience is vague term, incapable of

definite connotation.  It is, more so, when Section 292 IPC particularly

uses this expression in the deeming provision relating to obscenity.   

Re:  Whether  Section  6(4)  of  the  Act  is  violative  of  equality  clause

enshrined in  Article 19(1) of the Constitution?

90) This provision forbids grant of licence for discotheque or orchestra

where licence under this Act is granted.  Conversely it also forbids grant

of licence under this Act for the place for which a licence for discotheque

or orchestra has been granted.  It means that in respect of a particular

place,  a  licence  would  be  granted  either  for  dance  bars  or  for

discotheque/orchestra and not for both purposes.  Submission is that

there  is  no  rationale  for  such  a  provision.   The  reply  given  by  the

29 (1980) 1 SCC 43

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respondents is that the purpose behind the aforesaid provision is to put

stringent licence conditions for dance bars, which would not be possible

if discotheque or orchestra as also on the same place where there is a

dance bar.  We hardly find this to be a valid justification.  The impugned

provision, in our view, is totally arbitrary and irrational and has no nexus

with the so-called purpose sought to be achieved.  We, therefore, strike

down Section 6(4) of the Act as unconstitutional.   

Re:  Whether  punishment  provided  under  Section  8(2)  of  the  Act  is

discriminatory and offends Article 14 of the Constitution?  

91) Precise  submission  of  the  petitioners  in  this  behalf  is  that  this

punishment is for those who allow obscene dance etc. Obscenity is also

an  offence  under  Section  294  IPC  which  is  punishable  with

imprisonment that may extend to three months. In contrast, as per the

impugned provision, the imprisonment may extend to three years.  It is,

thus,  argued  that  for  the  same  offence,  whereas  the  Central  Act

prescribes  imprisonment  upto  three  months,  the  prescription  of

imprisonment upto three years in Section 8(2) of the Act is violative of

Article 14 and is in conflict with the IPC i.e. the central law.  We are not

impressed with this argument.  As rightly argued by the respondents,

sub-section (2) has to be read along with sub-section (1) of Section 8.

Under Section 8(1), if the place is used in contravention of Section 3, it

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is made a punishable offence.  It means that where a hotel, restaurant,

bar room or any place is used for staging dances without obtaining a

licence under Section 3 of the Act, that is made a punishable offence.

However, even if licence is obtained, that would not mean that place can

be  used  for  obscene  dance  performances  or  for  exploiting  working

women  for  any  immoral  purpose.   It  is  these  acts  which  are  made

punishable under  sub-section (2).   In  this  manner, the offence under

Section 8(2) is somewhat different from the offence that is stipulated in

Section 294 IPC which is clear from the language of Section 294, that

reads as under:

"294. Obscene acts and songs.—Whoever, to the annoyance of others—

(a)  does any obscene act in any public place, or

(b)  sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.”

92) Challenge to the validity of Section 8(2) of the Act, therefore, fails.

Re: Whether Section 8(4) of the Act is arbitrary and violative of Article

14?

93) This provision is to be read with condition Nos. 6, 7 and 8 of Part

B.  It makes throwing or showering coins, currency notes or any article

or  anything  which  can  be  monetized  on  the  stage  or  handing  over

personally such notes, to a dancer is banned and treated as an offence.

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Further stipulation in these provisions is that any tip to be given should

be added in the bill only and is not to be given to the performers etc.

The justification given by the State is that showering of money etc. is a

method of inducement which has to be curbed keeping in view that Act

aims to protect the dignity of women.  According to the respondents,

Section 354A of IPC which is a moral code of the society and the State

is  only  attempting  to  preserve  this  moral  code  by  enacting  such  a

provision.  We are of the opinion that insofar as throwing or showering

coins, currency notes etc. is concerned, the provision is well justified as

it  aims  at  checking  any  untoward  incident  as  the  aforesaid  Act  has

tendency to create a situation of indecency.  Therefore, whatever money,

any appreciation of any dance performance, has to be given, can be

done without throwing or showering such coins etc.  However, there may

not be any justification in giving such tips only by adding thereto in the

bills to be raised by the administration of the place.  On the contrary, if

that is done, the person who is rightful recipient of such tips may be

denied the same.  Further, State cannot impose a particular manner of

tipping as it is entirely a matter between an employer and performer on

the one hand and the performer and the visitor on the other hand.  We,

therefore,  uphold  the  provision  insofar  as  it  prohibits  throwing  or

showering of coins, currency notes or any article or anything which can

be monetised on the stage.  However, handing over of the notes to the

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dancers personally is not inappropriate.  We also set aside the provision

of giving the tips only by adding the same in the bills.   

94) Vide Section 12, Grievance Redressal Committee is constituted.

Grievance  of  Mr.  Nayyar,  as  noted  above,  is  that  it  should  have

representation of bar dancers as well.  Though, such a representation

may  be  desirable,  that  by  itself  cannot  be  a  ground  to  invalidate  a

legislation.  We, therefore, leave it  to the law makers to consider this

aspect.   

Legality of certain Rules

95) Insofar as Rule 3(3)(i) is concerned, there is a substance in the

submission of the petitioners that it is quite vague.  As per this sub-rule,

a person is entitled to obtain or hold licence who possesses a ‘good

character’  and  ‘antecedents’  and  he  should  not  have  any  history  of

‘criminal  record’  in  the  past  ten  years.  However,  the  terms  ‘good

character’ or ‘antecedents’ or ‘criminal record’ are not definite or precise.

These expressions are capable of any interpretation and, therefore, it is

left  to  the  wisdom  of  the  licensing  authority  to  adjudge  whether  a

particular person possesses good character or good antecedents or not.

Likewise,  insofar  as  history of  criminal  record  is  concerned,  it  is  not

spelled out as to whether such a criminal record is based on conviction

in a case or mere lodging of FIR would be termed as criminal record.

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We, therefore, quash the provision in the present form, but, at the same

time, give liberty to the rule making authority to have suitable provision

of  precise  nature.   Consequently,  condition  No.  16  of  Part  B  in  the

present form is also set aside, with liberty as aforesaid.

96) Adverting to Condition No. 2 of Part A of general conditions (GOC),

it can be dissected as under:

(i)  Size of stage in the bar room should not be less than 10 feet x 12

feet.  There is no objection to this.

(ii) It  further  stipulates  that  the  stage  in  bar  room has  to  be  with

non-transparent partition between hotel, restaurant and bar room area.

In essence, it segregates bar room area from hotel and restaurant.   

(iii) Fixed  partition  is  prescribed  between  permit  room  and  dance

room.    

97) It is this part which is taken exception of by the petitioners.  We

find that on an earlier occasion, similar condition was struck down by

this Court.  Even otherwise, we do not find any rationality or justification

in imposing such a condition which appears to be quite unreasonable

and there cannot be any rationale in this provision having regard to any

objective  sought  to  be  achieved.  Therefore,  this  provision  is  struck

down.

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98) As far as condition No.11 of Part A is concerned which stipulates

that the place where dance is to be performed shall be at least 1 km

away from the educational and religious institutions, the petitioners are

right in their submission that such a condition does not take into account

the ground realities particularly in the city of Mumbai where it would be

difficult to find any place which is 1 km away from either an education

institution or a religious institution.  This, therefore, amounts to fulfilling

an impossible condition and the effect  thereof is that,  at no place, in

Mumbai, licence would be granted.  Therefore, this condition is also held

to  be arbitrary and unreasonable  and is  quashed,  with  liberty to  the

respondents  to  prescribe the distance from educational  and religious

institutions, which is reasonable and workable.   

99) Insofar as condition No.2 of Part B is concerned, it  imposes an

obligation  on  the  employers  to  the  effect  that  working  women,  the

dancers  and  waiters/waitresses  must  be  employed  under  a  written

contract  on  a  monthly  salary.   Further,  this  monthly  salary  is  to  be

deposited in their bank accounts with all the benefits required under the

law.   Copy  of  such  contracts  is  to  be  deposited  with  the  licensing

authority as well.  Insofar as provision relating to entering into a written

contract as well as depositing of the remuneration in the bank accounts

is concerned, it appears to be justified as it would make the conditions

on  which  such  working  women,  dancers  and  waiters/waitresses  are

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employed, transparent thereby eliminating or minimising any chances of

exploitation or other disputes.  However, the condition of employing such

persons on monthly salary does not  stand the judicial  scrutiny.  This

shows that such persons are to be employed in a particular manner i.e.

on  monthly  basis.   There  can  be  other  modes  of  employment

permissible in  law and the employers  have legal  right  to  adopt  such

modes.   For  example,  it  could  be employment  on contract  basis i.e.

where the remuneration can be fixed for each performance. Moreover, it

impinges upon the rights of such workers as well who may, otherwise,

be free to give their performances at more than one place.  Therefore, it

imposes restriction even upon such employees and infringes their right

under Article 19(1)(g).  This is the grievance raised on behalf of such

women in  the petition  argued by Mr. Nayyar  who submitted that  the

provisions  adversely  affect  women  dancers  by  (i)  restricting  their

freedom  to  move  from  one  bar  to  another  at  their  will,  if  the  work

conditions  or  the  returns  are  not  suitable;  (ii)  prohibit  them  from

monetizing dances other than by way of receiving salary or shared tips.

More  importantly,  the  State  Government  has  failed  to  show  any

compelling public interest to curtail the choices of women performers.

We find substance in the aforesaid submission and, therefore, set aside

this part of Condition No. 2.  We make it clear that the provisions for

written contract, deposit of the remuneration in the bank accounts of the

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employee  as  well  as  submission  of  these  written  contracts  with  the

licensing authority are appropriate.  Rest of the provision is struck down.

100) Adverting to the condition No. 9 of Part B which prescribes timing

of such dance performances only between 6 pm to 11:30 pm, we do not

find it to be manifestly unreasonable.  Merely because establishments

are otherwise open until 1:30 am (next day) or 12:30 am (next day) does

not  mean that  the  State  has no power  to  restrict  the time of  dance

performances till  11:30 pm.  Even a period of  6 pm to 11:30 pm for

dance performances is quite sufficient and substantial as it allows 5½

hours of such performances.  We, therefore, uphold this condition.

101) Condition No. 12 of Part B prescribes serving of alcohol in the bar

room  where  dances  are  staged.   This  is  totally  disproportionate,

unreasonable and arbitrary.  We see no reason as to why the liquor

cannot be served at such places.  It seems that State is more influenced

by  moralistic  overtones  under  wrong  presumption  that  persons  after

consuming alcohol would misbehave with the dancers.  If this is so, such

a  presumption  would  be  equally  applicable  to  bar  rooms  where  the

alcohol is served by women waitresses.  However, such conditions have

been held to be unreasonable by the Courts.  There may be  aberrations

or sporadic incidents of this nature which can happen not only at the

places  where  dance  performances  are  staged  but  at  other  places

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including bar rooms and even main restaurants.  Other measures have

to be adopted to check such a nuance.  There cannot be a complete

prohibition  from  serving  alcoholic  beverages.   We,  therefore,  quash

condition No. 12.  

102) Condition No. 20 of Part B mandates installing of CCTV Cameras.

This again would be totally inappropriate and amounts to invasion of

privacy  and  is,  thus,  violative  of  Articles  14,  19(1)(a)  and  21  of  the

Constitution  as  held  in  K.S.  Puttaswamy  case,  where  the  Court

observed:

"247.3. Anita  Allen has,  in  a  2011 publication,  developed  the concept of “unpopular privacy” [Id, at p. 500] . According to her, Governments must design “unpopular” privacy laws and duties to protect  the  common  good,  even  if  privacy  is  being  forced  on individuals who may not want it. Individuals under this approach are  not  permitted  to  waive  their  privacy  rights.  Among  the component elements which she notices are: (a) physical or spatial privacy — illustrated by the privacy in the home; (b) informational privacy including information data or facts about persons or their communications; (c) decisional privacy which protects the right of citizens to make intimate choices about their rights from intrusion by the State; (d) proprietary privacy which relates to the protection of one's reputation; (e)  associational privacy which protects the right of  groups with certain defined characteristics to determine whom they may include or exclude. [Id, at pp. 500-501]”

This condition is also set aside.

103) Before  parting,  we  would  like  to  re-emphasise  that  the  State

cannot take exception to staging dance performances per se.  It appears

from the history of legislative amendments made from time to time that

the  respondents  have  somehow  developed  the  notion  that  such

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performances in the dance bars do not have moralistic basis.  Initially

the law was passed in the year 2005 by inserting Sections 33A and 33B

in  the  Maharashtra  Police  Act,  1951.   At  that  time,  by  the  said

amendment, State desired total prohibition on the performance of dance

in  eating  house,  permit  room or  bear  bar  on  the  premise  that  such

performances are always indecent, obscene or vulgar.  It was also on

the notion that  such performances were giving rise to exploitation of

women as  well.   However, while  upholding  the  decision  of  the  High

Court  declaring  Section  33A of  Maharashtra  Police  Act,  1951  to  be

unconstitutional, this Court found and specifically held that there was no

material or empirical data in the aforesaid perception garnered by the

State. This Court also held that the impugned provision did not pass the

muster  of  constitutional  provisions  as it  was  found to  be  violative  of

Articles 14, 19(1)(a) and 19(1)(g) of the Constitution.  The Court also

categorically observed that  there were enough statutory provisions in

number of Acts and Rules (which are stipulated in Paras 127 to 131 of

the said judgment).

104) The  present  legislation  is  given  a  cloak  of  bringing  regulatory

regime to regulate the places where there are dance performances.  For

this  purpose, the impugned Act  does not  permit  dance performances

without obtaining licence under Section 3 of the Act.  Further, it makes

obscene dances as penal offence.  No quarrel on this.  However, at the

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same  time,  many conditions  are  stipulated  for  obtaining  the  licence,

which are virtually impossible to perform.  It  is this reason that not a

single establishment has been issued licence under the impugned Act

even when it was passed in the year 2014.  In fact, after the amendment

in Maharashtra Police Act in 2005, no licences have been granted for

dance  bars.   Thus,  even  when  the  impugned  Act  appears  to  be

regulatory in nature, the real consequences and effect is to prohibit such

dance  bars.   The  State,  thereby,  is  aiming  to  achieve  something

indirectly  which  it  could  not  do  directly.   Such  a  situation  is  beyond

comprehension and cannot be countenanced.  We have quashed those

provisions  of  the  Act  and  the  Rules  which  we  have  found  as

unreasonable and unconstitutional.  We hope that applications for grant

of licence shall now be considered more objectively and with open mind

so that  there is  no complete  ban on staging dance performances at

designated places prescribed in the Act.   

105) The writ petitions stand partly allowed and are disposed of in the

aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; JANUARY 17, 2019.

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