published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40565
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2705 OF 2006
State of Maharashtra & Anr. ...Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors. ...Respondents
WITH
CIVIL APPEAL NO.2704 OF 2006
State of Maharashtra & Ors. Etc. Etc. ..Appellants
VERSUS
Ramnath Vishnu Waringe Etc. Etc. ...Respondents
WITH
CIVIL APPEAL NO._5504_____ OF 2013
[Arising out of S.L.P. (C) No.14534 of 2006]
Ghar Hakka Jagruti Charitable Trust ...Appellant
VERSUS
State of Maharashtra & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. Leave granted in SLP (C) No.14534 of 2006.
2. These civil appeals seek to challenge common judgment and final
order dated 12th April, 2006 in Writ Petition No.2450 of 2005,
W.P. No.2052 of 2005, W.P.No.2338 of 2005 and W.P.No.2587 of 2005
passed by the High Court of Judicature at Bombay,
whereby
Section 33A of the Bombay Police Act, 1951 as inserted by the Bombay Police (Amendment) Act, 2005 has been declared to be ultra vires Articles 14 and 19(1)(g) of the Constitution of India.
Summary of Facts –
3. Brief facts leading to the filing of the aforesaid writ petitions
are –
The Bombay Police Act, 1951 (hereinafter ‘the Act’) was enacted
in the year 1951 with the object of consolidating and amending the
law relating to the regulation of the exercise of powers and
performance of the functions by the State Government for maintenance
of public order.
Section 33 of the Act authorises the State
Government to frame rules regulating places of public amusement and
entertainment.
By virtue of Section 33 of the Act,
the “Rules for
Licensing and Controlling Places of Public Amusement (other than
Cinemas) and Performances for Public Amusement including Melas &
Tamashas, 1960” (hereinafter ‘the Rules’) were enacted to regulate
and maintain discipline in places of public amusement, melas etc.
4. In 1986, orchestra and dance in hotels was permitted to be
performed pursuant to the Rules and such institutions functioned
under terms and conditions laid down therein.
However, several
cases relating to violation of the terms and conditions of
performance licences came to be registered.
It is claimed that
20,196 cases were registered under Section 33(w), 110 and 117 of
the Act from the year 2000 till 2005.
Also, various cases of minor
girls being rescued from dance bars were reported during the said
period 2002-2005.
The appellants have referred to the case
histories from the Government Special Rehabilitation Centre for
Girls (Special Home) of 10 girl children rescued from such
establishments under Immoral Traffic (Prevention) Act, 1956 by
Mumbai Police, which according to the appellants, correctly depict
the prevailing situation.
The Government of Maharashtra, Home Department, on 10th
December, 2002 passed resolution No. REH 012002/153/SE-5, noting
therein :
"It has come to notice that prostitution rackets are being run
through pick up points in hotel establishments in which dance
programmes are being conducted (Dance Bars) and that dance forms
being presented therein are horrid and obscene and that
criminals are being sheltered in such hotels. Such undesirable
practices going on in hotel establishments have an adverse
effect on society."
It was resolved to form a committee to make suggestions for
amending the rules to deal with:
a) Remedial measures to check other undesirable practices
going on in hotel establishments presenting dance
programmes.
b) To prevent prostitution in hotel establishments
c) Remedial measures to see that criminals are not sheltered
in hotel establishments;
d) To frame a code specifying what type of dance forms
should be presented in hotel establishments.
e) Creating a roving squad to check undesirable practices in
hotel establishments and take strict action against owner
of those establishments.
5. Pursuant to the aforesaid resolution, the Committee submitted its
recommendations which were incorporated and circulated to all the
concerned authorities through the letter of the Home Department
No. REH 012002/153/SB-5 dated 16th July, 2004. In
this letter, the suggested regulations were summarized as follows:
a. There should be restrictions on the attire of the
dancers.
b. Dancing area must have a railing 3 feet high around it,
and customer seats should be at least 5 feet away from
the railing.
c. Dance floor to be of dimension of 10 x 12 ft so not more
than 8 dancers can dance simultaneously.
d. Customer rewards for dancing are to be routed through
management of the establishment and customers are banned
from going near the dancers or “showering money”.
e. Names of dancers are to be registered with the
establishment, a record kept of their employment,
including details of identity/citizenship and place of
residence.
6. This letter instructed all Judicial Magistrates and Police
Commissioners to implement these recommendations with immediate
effect.
7. On 6th August, 2004 the Chairperson of the Maharashtra State
Commission for Women wrote to the State Government about the
ongoing racketeering to lure girls to work in dance bars and their
consequent acts of prostitution and immoral trafficking stating:
“Number of rackets indulging into physical and financial
exploitation of girls working in dance bars by forcibly bringing
them into this profession are found to be increasing alarmingly.
In the metropolis of Mumbai, the problems of the bar girls have
acquired grave dimensions and have resulted even into death of
many bar girls. These women are forcibly induced into
prostitution leading to total destruction of their life.”….
Further
“Most of the girls working in Dance Bars of Maharashtra State do
not hail from State of Maharashtra, but come from other States.”
….
“In the future this problem in all the probability would spoil
our social health by acquiring increasingly grave dimensions,
not confined only to Mumbai but extending to the National and
even International levels.”
8. The letter went on to recommend a ban on such establishments by
stating:
“I therefore, request you that the system of issuing permits to
the Bar Girls by various departments of Government should be
stopped forthwith, thereby relieving the women from their
physical, sexual and financial exploitation in the future.”
9. According to the appellant, the seriousness of the issues involved
is well documented of which the Home Department was fully aware.
The material available before the Home Department was as under:
a. Copies of case history of 10 girl children rescued from
dance bar(s) under Immoral Traffic (Prevention) Act,
1956.
b. Copies of complaints of victims’ families against illicit
relations with bar dancers.
c. Copies of complaints of Social Organizations against
dance bars.
d. Copies of FIRs of cases registered in relation to dance
bars.
e. Summary of cases registered under the Immoral Traffic
(Prevention) Act, 1956, u/s 294 IPC, u/s 33(w) &
110 of Bombay Police Act, 1951 during the period 2000-
2005 regarding dance bars.
10. Apart from this, a study of the socio-economic situation and
rehabilitation needs of the women in dance bars was conducted by
PRAYAS (a field action project of the Tata Institute of Social
Sciences) in 2005.
This study pointed out the relevant facts
regarding exploitation of minor girls in dance bars.
The study
also pointed out that there was presence of the element of human
trafficking in the entire process; and that the environment of the
dance bars was found to have negative impact on the physical and
mental health of the minor girls.
The study also pointed out that
the atmosphere in the dance bars increased the vulnerability of
the minor children to sexual exploitation. It is also the case of
the appellants that independent of registration of offences under
Bombay Police Act and PITA Act as well as IPC, several complaints
had been received from various segments of society urging the
State Government to take steps for closure of the dance bars by
legislative action.
11. Taking into consideration the aforesaid material, the members of
the Maharashtra Legislative Assembly expressed deep concern over
the ill effects of dance bars on youth and dignity of women.
The
Assembly further felt that the existing measures were insufficient
to tackle the subject. Just at that time, a ‘Call Attention
Motion’ was tabled by Shri Vivek Patil in the State Legislative
Assembly on 30th March, 2005.
A detailed reply was given by Shri
R.R. Patil, Hon’ble Dy. Chief Minster to the same, on 21st July,
2005. Taking stock of the entire situation, the State Government
came to a tentative opinion that performance of dances in eating
houses, permit rooms or beer bars in an indecent manner is
derogatory to the dignity of women and is likely to deprave,
corrupt and/or injure public morality.
It was evident on the basis
of the material available to the Government that permit rooms or
beer bars licensed under the relevant rules, were indulging in
exploitation of women by permitting the performance of dances in
an indecent obscene or vulgar manner. The Government, therefore,
considered it expedient to prohibit such dance performances in
eating houses or permit rooms or beer bars.
12. It was emphasised that even prior to the aforesaid decision, the
attention of the Government had been invited to mushrooming growth
of illegal dance bars and their ill- effects on the society in
general, including ruining of some families.
The dance bars were
also used as meeting points by criminals and pick up joints of
girls indulging in immoral activities. Young girls desirous of
earning easy money were being attracted to such dance bars and
getting involved in immoral activities.
The decision was,
therefore, taken by the State Government to prohibit performance
of dance in eating houses or permit rooms or beer bars by suitably
amending the Bombay Police Act, 1951.
13. The State Government took a conscious decision upon consideration
of the various factors to add Sections 33A and 33B to the Bombay
Police Act.
The necessary amendment was introduced in Maharashtra
Legislative Assembly on 14th July, 2005.
The Bill was passed by
the Legislative Assembly on 21st July, 2005 and by
the Legislative Council on 23rd July, 2005.
The amended Act No. 35
of 2005, incorporating Sections 33A & 33B in the Bombay Police
Act, 1951, came into force after receiving the assent of the
Governor of the Maharashtra by publishing in the Maharashtra
Gazette on 14th August, 2005.
Writ Petitions before the High Court of Bombay
14. The Amendment to the Bombay Police Act of 1951, introducing
Sections 33A and 33B, was challenged as being unconstitutional in
several writ petitions before the High Court of Bombay, which are
tabulated as under:
|Writ Petition Number | Party |
|WP 2450/2005 |Indian Hotel and Restaurants Owners |
| |Association, an Association of various hotel |
| |owners and bar owners and/or conductors of the|
| |same, who carry on business of running |
| |restaurants and bars in Mumbai. |
|WP 2052/2005 |Bharatiya Bar Girls Union, a registered trade |
| |union claiming a membership of 5000, whose |
| |members work as bar girls in different parts |
| |of Maharashtra. |
|WP 2338/2005 |The Parties in this petition are a group of |
| |six petitioners, who are women’s organizations|
| |working in the field of women’s development. |
|WP 2587/2005 |The 1st petitioner is a trust registered under|
| |the Public Trust Act, working with sex workers|
| |in the Malvani area of Malad in Mumbai. The |
| |2nd petitioner is the Ekta Self Group which |
| |consists of 10 bar dancers. |
|WP 1971/2005 |The petitioner is the Association of Dance Bar|
|Criminal WP |owners duly registered under the Trade Unions |
| |Act, and have as their members 344 dance bars.|
|WP 6930-6931/2005 |Proprietors of two establishments who are |
| |affected by the amendments to the Police Act. |
|WP 5503-5504/2005 |Proprietors of two establishments who are |
| |affected by the amendments to the Police Act. |
It was contended:
• That the State of Maharashtra does not have the legislative
competence to enact the impugned law as 'morality' does not fall
within the ambit of List II of Schedule 7 and that the impugned
enactment falls in the concurrent list.
• That the impugned amendment was not reserved for the assent of the
President and therefore is unconstitutional under Article 254 of
the Constitution and also that the State does not have the power
to implement international conventions and hence this enactment
amounts to fraud on the Constitution.
• That the enactment results in interference with the independence of
judiciary as no reasons are provided under S. 33A(2) of the Act for
awarding lesser punishments.
• That the affidavit filed by Youraj Laxman Waghmare was not in
compliance with Order 19 Rule 3 of the Civil Procedure Code as no
verification clause was provided.
• That the establishment of the petitioners is a place of public
entertainment and public amusement as defined under S.
2(10) and 2(9) respectively and not an "eating place" under S.2(5A)
of the Bombay Prohibition Act, 1951 and hence the provisions do not
bind the petitioners.
• That S. 33A and 33B are arbitrary under Article 14 as they provide
for different standards of morality to institutions with similar
activities and that the activities in S. 33A establishments are
less obscene but nonetheless the classification bears no nexus to
the object of the Amendment.
• That S. 33A is violative of Article 15 on the basis of gender
discrimination as the dancers are mainly women.
• That there is violation of Article 19 (1)(a) as dance is a form of
expression and that the impugned enactment is an unreasonable
restriction and it is not by protected by Article 19(2).
• That there is an unreasonable restriction on right to freedom of
profession as the State Government permitted and granted licenses
for running such establishments being Res
Commercium and that it deprives the bar owners of their right to
carry on business and bar dancers the right to carry on their
profession.
• That right to life under Article 21 is infringed as right to life
includes right to livelihood and that the State has not provided
for any rehabilitation.
15. The State of Maharashtra defended the challenge to enactment as
follows:
• That the impugned enactment is covered by the List II. Entries 1-
Public Order, 2- Police, 6- Public Order, 8- Intoxicants,
33- Entertainment or Amusement, 64- Offences against
laws.
• That the 'eating houses' are covered in the impugned enactment as
they would fall in public entertainment places, as license is issued
to an eating house, which enjoys an additional facility to serve
liquor, wine and beer.
• That there is no violation of Article 19(1)(a) as the dance being
conducted is not an expression but a profession where restrictions
can be imposed.
• That there is no violation of Article 15 as the ban on obscene dance
applies to men and women.
• That the several minor girls danced to get rewarded with cash by
enticing customers, that led to a competition between performers
leading to greatest rewards reserved for the greatest indignities
which escalated prostitution which lead to registration of several
cases under Prevention of Immoral Trafficking Act and under Bombay
Police Act. That this led the legislatures to make an independent
classification of these establishments to safeguard the dignity of
women, and public morality. That there are only six exempted
establishments and that obscene performances are not permitted in
such exempted establishments. Hence there is no violation of Article
14.
• That with regard to Article 19(I) (g) there is no absolute right to
conduct trade or profession and that the same is subject to public
order, decency and morality and hence the restriction is reasonable
and justified.
• That there is no violation of Article 21 as special cell has been
constituted by Women and Child Welfare Department to train and
assist the "bar girls" in availing benefits of the various
Government Schemes for employment and providing alternative
dignified vocations.
16. After considering the aforesaid arguments of both the sides, the
High Court has, inter alia, held that the type of dancing in both
categories of establishments differs and while the difference is
not capable of precise legislative definition, it is sufficient to
constitute intelligible differentia. However, the fact of
different types of dancing being performed bears no nexus with the
object sought to be achieved, which, as understood by the Bombay
High Court, was limited to the exploitation of women dancers.
Consequently, the operation of the impugned enactment is
discriminatory.
17. With these observations, the High Court declared that Sections 33A
and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14
and 19(1)(g) of the Constitution of India.
18. We have heard the learned counsel for the parties at some length.
But before we notice the submissions at this stage it would be
appropriate to reproduce the provisions in Sections 33A and 33B of
the Bombay Police Act, 1951.
Sections 33A and 33B of the Bombay Police Act:
19. The provisions read as under:
“33A(1) Notwithstanding anything contained in this Act or the
rules made by the Commissioner of Police or the District
Magistrate under sub-section (1) of Section 33 for the area
under their respective charges, on and from the date of
commencement of the Bombay Police (Amendment) Act, 2005,-
(a) holding of a performance of dance, of any kind or type, in
any eating house, permit room or beer bar is prohibited;
(b) all performance licences, issued under the aforesaid rules
by the Commissioner of Police or the District Magistrate or any
other officer, as the case may be, being the Licensing
Authority, to hold a dance performance, of any kind or type, in
an eating house, performance, of any kind or type, in an eating
house, permit room or beer bar shall stand cancelled.
(2) Notwithstanding anything contained in Section 131, any
person who holds or causes or permits to be held a dance
performance of any kind or type, in an eating house, permit room
or beer bar in contravention of Sub-section (1) shall, on
conviction, be punished with imprisonment for a term which may
extend to three years and with fine which may extend to rupees
two lakhs:
Provided that, in the absence of special and adequate reasons to
the contrary to be mentioned in the judgment of the Court, such
imprisonment shall not be less than three months and fine shall
not be less than rupees fifty thousand.
(3) If it is, noticed by the Licensing Authority that any
person, whose performance licence has been cancelled under Sub-
section (1), holds or causes to be held or permits to hold a
dance performance of any kind or type in his eating house,
permit room or beer bar, the Licensing Authority shall,
notwithstanding anything contained in the rules framed under
section 33, suspend the Certificate of Registration as an eating
house and the licence to keep a Place of Public Entertainment
(PPEL) issued to a permit room or a beer bar and within a period
of 30 days from the date of suspension of the Certificate of
Registration and licence, after giving the licensee a reasonable
opportunity of being heard, either withdraw the order of
suspending the Certificate of Registration and the licence or
cancel the Certificate of Registration and the licence.
(4) ………………
(5)………………..
(6) The offence punishable under this section shall be
cognizable and non-bailable.
33B. Subject to the other provisions of this Act, or any other
law for the time being in force, nothing in section 33A shall
apply to the holding of a dance performance in a drama theatre,
cinema theatre and auditorium; or sports club or gymkhana, where
entry is restricted to its members only, or a three starred or
above hotel or in any other establishment or class of
establishments, which, having regard to (a) the tourism policy
of the Central or State Government for promoting the tourism
activities in the State; or (b) cultural activities, the State
Government may, by special or general order, specify in this
behalf.
Explanation.--For the purposes of this section, "sports club" or
"gymkhana" means an establishment registered as such under the
provisions of the Bombay Public Trusts Act, 1950, or the
Societies Registration Act, 1860 or the Companies Act, 1956, or
any other law for the time being in force.”
Statement of Objects and Reasons
20. The Statement of Objects and Reasons clause appended to Bill No.
LX of 2005 as introduced in the Maharashtra Legislative Assembly
on 14th June, 2005 reads as under:
(1) The Commissioner of Police, District Magistrates or other
officers, being Licensing Authorities under the Rules
framed in exercise of the powers of Sub-section (1) of
Section 33 of the Bombay Police Act, 1951 have granted
licences for holding dance performance in the area under
their respective charges in the State. The object of
granting such performance licence is to hold such dance
performance for public amusement. It is brought to the
notice of the State Government that the eating houses or
permit rooms or beer bars to whom licences to hold dance
performance, have been granted are permitting the
performance of dances in an indecent, obscene or vulgar
manner. It has also been brought to the notice of the
Government that such performance of dances are giving rise
to exploitation of women. The Government has received
several complaints regarding the manner of holding such
dance performances. The Government considers that the
performance of dances in eating houses, permit rooms or
beer bars in an indecent manner is derogatory to the
dignity of women and is likely to deprave, corrupt or
injure the public morality or morals. The Government
considers it expedient to prohibit the holding of such
dance performances in eating houses or permit rooms or beer
bars.
(2) In the last Budget Session of the State Legislature, by
way of a Calling Attention Motion, the attention of the
Government was invited to mushroom growth of illegal dance
bars and their ill-effects on the society in general
including ruining of families. The members of the State
Legislature, from ruling and opposition sides, pointed out
that such dance bars are used as meeting points by
criminals and pick-up joints of girls Page 1267 for
indulging in immoral activities and demanded that such
dance bars should, therefore, be closed down. These dance
bars are attracting young girls desirous of earning easy
money and thereby such girls are involved in immoral
activities. Having considered the complaints received from
general public including the peoples' representatives, the
Government considers it expedient to prohibit the
performance of dance, of any kind or type, in an eating
house or permit room or beer bar, throughout the State by
suitably amending the Bombay Police Act, 1951. However, a
provision is also made to the effect that holding of a
dance performance in a drama theatre or cinema theatre or
auditorium; registered sports club or gymkhana; or three
starred or above hotel; or in any other establishment or
class establishments which the State Government may specify
having regard to tourism policy for promotion of tourism in
the State or cultural activities, are not barred but all
such establishments shall be required to obtain performance
licence in accordance with the said rules, for holding a
dance performance.
3. The Bill is intended to achieve the following objectives.”
Preamble
“Whereas the Commissioners of Police, District Magistrates and
certain other Officers, have granted performance licences for
holding dance performance;
And whereas the object of granting such performance licences is
to hold such dance performance for public amusement;
And whereas it is brought to the notice of the State Government
that the eating houses, permit rooms or beer bars to whom
licences to hold a dance performance have been granted are
permitting performance of dances in an indecent, obscene or
vulgar manner;
And whereas it has also been brought to the notice of the
Government that such performance of dances are giving rise to
exploitation of women;
And whereas the Government has received several complaints
regarding the manner of holding of such dance performance;
And whereas the Government considers that such performance of
dances in eating houses, permit rooms or beer bars are
derogatory to the dignity of woken and are likely to deprave,
corrupt or injure the public morality or morals.
And whereas the Government considered it expedient to prohibit
such holding of performance of dances in eating houses, permit
rooms and beer bars.”
Legal Submissions:
21. Mr. Harish N. Salve, Mr. Gopal Subramanium and Mr.
Shekhar Naphade, learned senior counsel, have on different
occasions made submissions on behalf of the appellants. Mr. Gopal
Subramanium has supplemented the oral submissions by written
submissions. The common submissions are noted with the appellation
of learned senior counsel, referring to all the aforesaid learned
senior counsel.
22. Learned senior counsel have made submissions confined only to the
issue as to whether Sections 33A and 33B of the Bombay Police Act
infringe Article 14 and with regard to the provisions being ultra
vires Article 19(1)(g) of the Constitution as all the other issues
raised by the respondents were rejected by the High Court. The
High Court had specifically rejected the challenge to the vires of
the provisions under Article 15(1), 19(1)(a) and Article 21.
23. Learned counsel for the appellants submitted that the
classification made by the impugned enactment is based on
intelligible differentia, having a nexus with the object sought to
be achieved. It is submitted that the impugned order suffers from
flawed reasoning. The classification made between establishments
under Sections 33A and 33B is not solely on the basis of the
different kinds of dance performances but also on differing social
impact such establishments have, by virtue of having differing
dance performances and surrounding circumstances including the
customers. Therefore according to Mr. Gopal Subramanium, the
establishments must be understood in broader terms than is
understood by the High Court. According to Mr. Harish Salve and
Mr. Gopal Subramanium, the judgment of the High Court is too
restrictive.
24. It was emphasised by the learned senior counsel that the High
Court has failed to understand the distinction between the two
provisions and the object sought to be achieved. Mr.
Gopal Subramanium has listed the differences factored into the
classification made by the impugned enactment. According to the
learned senior counsel, the impugned enactment is based on
intelligible differentia which could be categorized under the
following broad heads:
(i) Type of dance; (ii) Form of remuneration; (iii) Demand for
vulnerable women; (iv) Degree of Harm; (v) Regulatory
feasibility.
25. It was submitted that in the banned establishments, the women who
dance are not professional dancers. In fact, they are majorly
trafficked into this profession or have taken this profession when
they had no other option. Further, the dance is vulgar and
obscene. Women are showered with money when they are dancing,
which does not happen in the exempted establishments. Learned
senior counsel further submitted that the classification based on
type of dance need not be scientifically perfect but ought not to
be palpably arbitrary. According to the learned senior counsel, in
the present case, it is not just that the type of dance performed
is different but the surrounding circumstances are also different.
In the exempted establishments, the distance between the dancing
platform and the audience is greater than at the banned
establishments. This, according to the learned senior counsel, is
sufficient to justify the classification between the exempted
establishments and the banned establishments. Therefore, it cannot
be said that the classification is palpably arbitrary. In support
of the submissions, the learned senior counsel relied on the
observations made by this Court in Shashikant Laxman Kale & Anr.
Vs. Union of India & Anr.[1] wherein this Court observed as
follows :-
“We must, therefore, look beyond the ostensible classification
and to the purpose of the law and apply the test of ‘palpable
arbitrariness’ in the context of the felt needs of the times and
societal exigencies informed by experience to determine
reasonableness of the classification.
26. Reliance was also placed Welfare Association, A.R.P., Maharashtra
& Anr. Vs. Ranjit P. Gohil & Ors.[2], wherein this Court observed
that:
“…………..It is difficult to expect the legislature carving out a
classification which may be scientifically perfect or logically
complete or which may satisfy the expectations of all concerned,
still the court would respect the classification dictated by the
wisdom of the legislature and shall interfere only on being
convinced that the classification would result in pronounced
inequality or palpable arbitrariness on the touchstone of
Article 14.”
27. With regard to the form of remuneration, learned senior counsel
submitted that remuneration to dancers in banned establishments is
generally made out of the money which is showered on them. This
creates an unhealthy competition between the dancers to attract
the attention of the customers. Therefore, each dancer tries to
outdo her competitors in terms of sexual suggestion through dance.
This, in turn, creates an unsafe atmosphere not just for the
dancers, but also for the other female employees of such
establishments.
28. Relying on the report by Shubhada Chaukhar, learned senior counsel
submitted that 84% of the bar dancers are from outside the State
of Maharashtra. These girls are lured into bar dancing on false
pretext. Supporting this submission, the following observations
are pointed out in the same report:
“Some unmarried girls have entered the world of bars just
because of its glamour. Not a few have come of their own free
will. Many less educated girls are attracted to a livelihood
that makes them quick money”.
29. On the basis of the aforesaid, learned senior counsel submitted
that the activities that are carried out in establishments covered
under Section 33A i.e. not just the dance itself but the
surrounding circumstances of the dance are calculated to raise the
illusion of access to women, irrespective of the consent or
dignity of women, in men who are often in an inebriated condition.
In this context, learned senior counsel relied on the case history
of girl children rescued from the dance bar(s) under Immoral
Traffic (Prevention) Act, 1956; complaints of victims family
against illicit relations with bar dancers; complaints of social
organizations against dance bars; copies of First Information
Reports of cases registered in relation to dance bars; summary of
cases registered under PITA Act, 1956, under Section 294 IPC,
under Section 33(w) & 110 of Bombay Police Act, 1951 during the
period 2000-2005 regarding dance bars.
30. It is submitted by the learned senior counsel for the appellants
that by comparison such complaints have been minimal in the case
of exempted establishments. The same kind of behaviour is not seen
as a norm. Learned senior counsel submitted that undesirable, anti
social and immoral traffic is directly relatable to certain kind
of dancing activities performed in prohibited establishments which
are not performed in exempted establishments. Therefore, there is
a rational distinction between the exempted establishments and the
prohibited establishments. In support of the submissions, reliance
was placed on the judgment of this Court in the case of State of
Uttar Pradesh Vs. Kaushailiya & Ors.[3], wherein the
constitutional validity of Immoral Traffic in Women and Girls Act,
1956 was called in question. This Court upheld the validity of the
classification between a prostitute who is a public nuisance and
one who is not.
31. Taking up the next head on which the classification has been
sought to be justified as intelligible differentia, i.e. “the
demand for vulnerable women,” learned senior counsel relied on
certain observations made by one Cathatine Mackinnon (1993) in an
article entitled “Prostitution and Civil Rights” which appeared in
Michigan Journal of Gender & Law, Volume I : 13-31. The
argument given by the author therein was that:
“If prostitution is a free choice, why are the women with the
fewest choices the ones most often found doing it?... The money
thus acts as a form of force, not as a measure of consent. It
acts like physical force does in rape.”
32. Taking cue from the aforesaid comments, learned senior counsel
submitted that the dancing that takes place in the banned
establishments has a similar effect on the psyche of the woman
involved, and functions within the same parameters of the
understanding of consent. It was emphasised that as a general
rule, dancing in a dance bar is not a profession of choice, but of
necessity, and consequently, there is a demand not for women of
means and options, but vulnerable women, who may not have families
and communities to turn to and are completely dependent on their
employers. In support of the aforesaid submissions, reliance was
placed upon Prayas and Shubhada Chaukar Reports.
33. It was submitted that the High Court erroneously ignored the
contents of the reports extracted above.
34. Now coming to the next head: “Justifying the classification on the
criterion of “Degree of Harm.” The appellants emphasised that the
characteristics of the dancing that is sought to be prohibited
have, to a greater degree than the activities that may be
comparable at first blush, created an atmosphere where physical
and emotional violence to women was both profitable and
normalized. It is, therefore, rational to classify these
establishments as a separate class based on the degree of harm
that they trigger. Support for this submission is sought from the
observations made by this Court in Ram Krishna Dalmia Vs. Justice
S.R. Tendolkar[4] wherein it was observed as follows:
“The decisions of this Court further establish – (d) that the
legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be
the clearest.”
35. Reliance was also placed on the observations made in the case of
Joseph Patsone Vs. Commonwealth of Pennsylvania[5]. This was a
case whereby an Act in Pennsylvania made it unlawful for
unnaturalised foreign born residents to kill wild game, except in
defence of person or property. The possession of shot guns and
rifles by such persons was made unlawful. The Act was challenged
as being unconstitutional under due process and equal protection
provisions of the 14th Amendment of the United States
Constitution. The Court upheld the Act as constitutional and
observed as follows:
"The discrimination undoubtedly presents a more difficult
question, but we start with the general consideration that a
State may classify with reference to the evil to be prevented,
and that if the class discriminated against is or reasonably
might be considered to define those from whom the evil mainly is
to be feared, it properly may be picked out. A lack of abstract
symmetry does not matter. The question is a practical one
dependent upon experience. The demand for symmetry ignores the
specific difference that experience is supposed to have shown to
mark the class. It is not enough to invalidate the law that
others may do the same thing and go unpunished, if as a matter
of fact, it is found that the danger is characteristic of the
class named. Lindsley v. Natural Carbonic Gas Co., 220 U.S.
61,80,81. The State ‘may direct its law against what it deems
the evil as it actually exists without covering the whole field
of possible abuses’…….. The question therefore narrows itself
to whether this court can say that legislature of Pennsylvania
was not warranted in assuming as its premise for the law that
resident unnaturalised aliens were the peculiar source of the
evil that it desired to prevent. Barrett v Indiana, 229 U.S. 26,
29.
Obviously the question so stated is one of local experience on
which this court ought to be very slow to declare that the stale
legislature was wrong in its facts. Adams v Milwaukee, 228 US.
572, 583. If we might trust popular speech in some states it was
right - but it is enough that this Court has no such knowledge
of local conditions as to be able to say that it was manifestly
wrong."
36. Reliance was also placed on the observations made in Keokee
Consolidated Coke Co. Vs. Taylor[6], which are as follows:
"It is more pressed that the act discriminates
unconstitutionally against certain classes. But while there are
differences of opinion as to the degree and kind of
discrimination permitted by the Fourteenth Amendment, it is
established by repeated decisions that a statute aimed at what
is deemed an evil, and hitting it presumably where experience
shows it to be most felt, is not to be upset by thinking up and
enumerating other instances to which it might have been applied
equally well, so far as the court can see. That is for the
legislature to judge unless the case is very clear."
37. The next judgment relied upon by the appellants is Radice Vs.
People of the State of New York[7], in which the New York Statute
was challenged, as it prohibited employment of women in
restaurants in cities of first and second class between hours of
10 p.m. and 6 a.m. The Court upheld the legislation in the
following words :
“Nor is the statute vulnerable to the objection that it
constitutes a denial of the equal protection of the laws. The
points urged under this head are (a) that the act discriminates
between cities of the first and second class and other cities
and communities; and (b) excludes from its operation women
employed in restaurants as singers and performers, attendants in
ladies' cloak rooms and parlors, as well as in lunch rooms or
restaurants conducted by employees solely for the benefit of
their employees.
The limitation of the legislative prohibition to cities of the
first and second class does not bring about an unreasonable and
arbitrary classification. Packard v Banton, ante, 140; Hayes v
Missouri, 120 U.S. 68. Nor is there substance in the contention
that the exclusion of restaurant employees of a special kind,
and of hotels and employees' lunch rooms renders the statute
obnoxious to the Constitution. The statute does not present a
case where some persons of a class are selected for special
restraint from which others of the same class are left free
(Connolly v Union Sewer Pipe Co., 184 U.S. 540, 564); but a case
where all in the same class of work are included in the
restraint. Of course, the mere fact of classification is not
enough to put a statute beyond reach of equality provision of
the Fourteenth Amendment. Such classification must not be
"purely arbitrary, oppressive or capricious". American Sugar
Refining Co. V Louisiana, 179 U.S. 89, 92. But the mere
production of inequality is not enough. Every selection of
persons for regulation so results, in some degree. The
inequality produced, order to counter the challenge of the
constitution must "actually and palpably unreasonable and
arbitrary." ……………………………………
The U.S. Court then relied upon the observations made in Joseph
Patsone’s case (supra), Keokee Consolidated Coke Co. case (supra)
which we have already noticed.
38. Further, learned counsel supported the submissions by relying upon
the case of Mohd. Hanif Quareshi Vs. State of Bihar[8], wherein
the court held as under:
"………The Courts, it is accepted, must presume that the
legislature understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on
adequate grounds. It must be borne in mind that the legislature
is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the
clearest and finally that in order to sustain the presumption of
Constitutionality the court may take into consideration matters
of common knowledge, matters of common report, the history of
the times and may assume every state of facts which can be
conceived existing at the time of legislation.”
39. On the basis of the aforesaid extracts, learned counsel submitted
that the classification between the exempted establishments and
prohibited establishment is also based on “Degree of Harm”. The
legislature is the best judge to measure the degree of harm and
make reasonable classification.
40. Coming to the next factor– Regulatory Feasibility, which,
according to the learned senior counsel, supports the validity of
the classification. It was submitted that the import of the
impugned enactment is not that, what is prohibited in
establishments under Section 33A is to be permitted in
establishments under Section 33B. It is submitted by the
appellants that the acts which are degrading, dehumanising and
facilitating of gender violence in society do not cease to be so
simply by virtue of it being made exclusively available to an
economically stronger sections of society. It is the submission of
the appellants that the State has already made extensive
regulatory provisions under various enactments. This relates to
the grant of nature of license, terms and conditions of such
licence, performance permits. All these regulatory measures are
with a view to cure social evils. The impugned enactment,
according to the appellants, is a form of an additional
regulation. It is justified on the ground that the existing system
of licenses and permits is not sufficient to deal with the problem
of ever increasing "dance bars". Relying on the observations made
by this Court in S.P. Mittal Vs. Union of India & Ors.[9] it was
submitted by the appellants that it is the prerogative of the
Government to decide if certain forms of regulation are
insufficient, to provide for additional regulation. Reliance was
also placed on the observations made in the case of Radice Vs.
People of the State of New York (supra) which are as under :-
"The basis of the first contention is that the statute unduly
and arbitrarily interferes with the liberty of two adult persons
to make a contract of employment for themselves. The answer of
the state is that night work of kind prohibited, so injuriously
threatens to impair their peculiar and natural functions, and so
exposes them to the dangers and menaces incident to night life
in large cities, that a statute prohibiting such work falls
within the police power of the state to preserve and promote the
public health and welfare.
The legislature had before it a mass of information from which
it concluded that night work is substantially and especially
detrimental to the health of women. We cannot say that the
conclusion is without warrant…… The injurious consequences were
thought by the legislature to bear more heavily against women
than men and considering their delicate organism, there would
seem to be good reason for so thinking. The fact, assuming it to
be such, properly may be made the basis of legislation
applicable only to women. Testimony was given upon the trial to
the effect that the night work in question was not harmful; but
we do not find it convincing. Where the constitutional validity
of a statute depends upon the existence of facts, courts must be
cautious about reaching a conclusion respecting them contrary to
that reached by the legislature; and if the question of what
facts establish be a fairly debatable one, it is not permissible
for the judge to set up his opinion in respect of it against the
opinion of the lawmaker. The state legislature here determined
that the night employment of the character specified, was
sufficiently detrimental to the health and welfare of women
engaging in it to justify its suppression; and, since we are
unable to say that the finding is clearly unfounded, we are
precluded from reviewing the legislative determination".
41. Relying on the aforesaid, it is submitted that exempted
establishments as understood by Section 33B are gymkhanas, three
starred or above hotels. In order to be considered three stars or
above establishments, such establishments have to meet greater
degrees of scrutiny, both from Government and from private
associations (hoteliers, reviewers etc). In fact, such
establishments generally maintain standards higher than the
standards expected of them under the regulation. Therefore, the
regulation of such establishments is significantly easier, as
opposed to the prohibited establishments. These establishments
function, according to the appellants, to a greater degree,
outside the constant scrutiny of the law. It is also pointed out
that it is significantly easier to police the exempted
establishments, which at present are six in number, than
attempting to police the much greater number of prohibited
establishments. It is also pointed out that in cases where an
exempted establishment is found carrying out activities prohibited
in S.33A, it is incumbent on the relevant authority to revoke the
permission for such acts. Therefore, it was submitted that the
significant difference in feasibility of regulation is another
basis for classifying prohibited establishments. The High Court,
according to the counsel, failed to examine the two provisions in
a proper perspective.
42. The next submission of the appellants is that “the objective of
the Act is an expression of the Obligation on the State to secure
safety, social order, public order and dignity of women.” It is
submitted that a bare perusal of the Preamble of the amending Act
and the Statement of Objects and Reasons would make it clear that
the State enacted the legislation only after receipt of complaints
from various social organizations as well as from various
individuals. The Preamble makes it clear that the legislature had
enough material to show that the performance of dance in the said
bars gives rise to exploitation of women, and further that the
performance of dances in eating houses, permit rooms or beer bars
are derogatory to the dignity of women and are likely to deprave,
corrupt or injure the public morality or morals. The High Court
ought to have considered the Statement of Objects and Reasons and
Preamble of the Act to discern the true intention of the
legislature. In support of the submission that the Court ought to
have looked at the objects and reasons, reliance is placed on the
observations of this Court in Shashikant Laxman Kale (supra),
wherein it is observed as follows:
“It is first necessary to discern the true purpose or object of
the impugned enactment because it is only with reference to the
true object of the enactment that the existence of a rational
nexus of the differentia on which the classification is based,
with the object sought to be achieved by the enactment, can be
examined to test the validity of the classification….”
43. It was reiterated that the High Court has given a very restrictive
interpretation to the phrase “exploitation of women”. The
expression would include not only the women who dance in the
prohibited establishments but also the waitresses who work in the
same establishments. It would also include the effect of the dance
bar on gender relations of not just the bar dancer, but for the
women around the area. The High Court, according to the
appellants, failed to take into account the object that the
statutory provisions are in respect of an activity of exploitation
of women conducted for financial gain by bar owners and their
intermediaries. It is emphasised that the issue involved in this
matter is not merely about dancing in the bars, but involves
larger issues of dignity of women, the destruction of environments
and circumstances where it is profitable to keep women vulnerable.
In such circumstances, the law is being used as a tool for dealing
with the evils of human trafficking and prostitution, rather than
simply prohibiting such activity without the administrative
resources to effectively implement such prohibition. It is further
submitted that the State is bound by this duty to protect the
interest of its citizens especially its weaker sections under the
Constitution. The legislation is sought to be justified on the
touchstone of Article 23, Article 39(e) and Article 51A(e) of the
Constitution. The action of' the Government is also justified on
the ground that it is necessary to emancipate women from male
dominance as women in dance bars are looked upon as objects of
commerce. It is emphasised that the bar dancing is obscene, vulgar
and casts considerable amount of negative influence on
institutions like family, society, youth etc.
44. Mr. Gopal Subramanium also emphasised that the State cannot shut
its eyes to the larger social problems arising out of bar dancing
which is uncontrolled and impossible to regulate. He sought to
justify the aforesaid submission by taking support from some
observations made in Paris Adult Theatre I Et. Al Vs. Lewis R.
Slaton, District Attorney, Atlanta Judicial Circuit, Et. Al[10].
This case provides, according to the learned senior counsel, a
discussion on relation with obscenity and pornography and the duty
of the state to regulate obscenity. Reliance is placed on the
following observations at pp 58, 60, 63, 64 and 69.
“It is not for us to resolve empirical uncertainties underlying
state legislation, save in exceptional Case where that
legislation plainly impinges upon rights protected by the
Constitution itself.”
………………
“Although there is no conclusive proof of a connection between
anti social behaviour and obscene material, the legislature of
Georgia could quite reasonably determine that such a connection
does or might exist. In deciding Roth, this Court implicitly
accepted that a legislature could legitimately act on such a
conclusion to protect the social interest in order and
morality." Roth v. United States, 354 U.S.., at 485, quoting
Chaplinsky v New Hampshire, 315 US. 568, 572 (1942).”
…………………
“The sum of experience, including that of the past two decades,
affords an ample basis for legislatures to conclude that a
sensitive, key relationship of human existence, central to
family life, community welfare, and the development of human
personality, can be debased and distorted by crass commercial
exploitation of sex. Nothing in the Constitution prohibits a
state from reaching such a conclusion and action on it
legislatively simply because there is no conclusive evidence or
empirical data.”
…………………………
“The states have the power to make a morally neutral judgment
that public exhibition of obscene material or commerce in such
material has a tendency to injure community as a whole, to
endanger the public safety or to jeopardise in Mr. Chief Justice
Warren's words, the States' "right ... to maintain a decent
society". Jacobellis v Ohio 378 US at 199 (dissenting opinion)"
45. It is further pointed out that the decision to ban obscene dancing
is also in consonance with Convention on the Elimination of All
Forms of Discrimination Against Women (CEADAW). Learned senior
counsel further submitted that establishments covered by Section
33A have a greater direct and indirect effect on the exploitation
of women, and the resultant and causative violence against women.
It is submitted that the degree of effect on the subjects covered
by the objects of the enactment are greater than any effect that
might be attributable to exempted establishments.
46. In any event, exempted establishments will also not be permitted
to carry out such performances, but are left to the operation of
parallel regulation simply because they are significantly fewer in
number and their very nature facilitates effective regulation.
Therefore, according to the learned senior counsel, the impugned
enactment is not discriminatory as it makes a reasonable
legislative classification which has a direct nexus with the
object sought to be achieved by the Act. In support of the
proposition that there is a reasonable classification and that the
State has the power to make such classification, reliance is
placed on the observations made by this Court in Kedar Nath
Bajoria & Anr. Vs. The State of West Bengal[11] which are as
follows:
"Now it is well settled that the equal protection of the laws
guaranteed by Article 14 of the Constitution does not mean that
all laws must be general in character and universal in
application and that the State is no longer to have the power of
distinguishing and classifying persons or things for the purpose
of legislation. To put it simply all that is required in class
or special legislation is that the legislative classification
must not be arbitrary but should be based on an intelligible
principle having a reasonable relation to the object which the
legislature seeks to attain. If the classification on which the
legislation is founded fulfils this requirement, then the
differentia which the legislation makes between the class of
persons or things to which it applies and other persons or
things left outside the purview of the legislation cannot be
regarded as a denial of the intelligible differentia having a
reasonable relation to the legislative purpose.”
47. Reliance is also placed on the observations of this Court in Ram
Krishna Dalmia Vs. Justice S.R. Tendolkar (supra) for outlining
the scope and ambit of Article 14 of the Constitution of India.
48. Finally, it is submitted that the Government had various documents
and reports based on which they felt it important to regulate the
menace of trafficking and to uphold the dignity of women. On the
basis of the aforesaid material, it is submitted that the
Government of Maharashtra enacted the amendment in good faith and
knowledge of existing conditions after recognizing harm, confined
the restrictions to cases where harm to women, public morality
etc. was the highest. The High Court has failed to appreciate all
the documentary evidence placed and gave a narrow meaning to the
object of the Act which is in the larger interest of the women and
society.
Article 19(1)(g) -
49. With regard to whether there is any infringement of rights under
Article 19(1)(g), it is submitted by the learned senior counsel
that the fundamental right under Article 19(1)(g) to practice any
profession, trade or occupation is subject to restrictions in
Article 19(6). Therefore, by prohibiting dancing under Section
33A, no right of the bar owners are being infringed. The curbs
imposed by Sections 33A and 33B only restrict the owners of the
prohibited establishments from permitting dances to be conducted
in the interest of general public. The term “interest of general
public” is a wide concept and embraces public order and public
morality. The reliance in support of this proposition was placed
on State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat &
Ors.[12] Reference was also made to Municipal Corporation of the
City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr.[13],
wherein this Court gave a wide meaning to “interest of general
public” and observed as follows :
“The expression in the interest of general public' is of wide
import comprehending public order, public health, public
security, morals, economic welfare of the community and the
objects mentioned in Part IV of the Constitution.”
50. Factually, it was emphasised that the history of the dance bars
and the activities performed within the dance bars show that they
are not set up with an intention to propagate art, exchange ideas
or spread knowledge. It is submitted that the dance performances
in these prohibited establishments were conducted in obscene and
objectionable manner to promote the sale of liquor. Therefore, the
main activity conducted in these prohibited establishments is not
a fundamental right. There is no fundamental right in carrying
business or sale in liquor and Government has power to regulate
the same. There is also overwhelming evidence on record to show
that girls have not opted for this profession out of choice but
have been brought into this by middle men or other exploitative
factors. There is no free and informed choice being made by the
bar dancers. This is sought to be supported by the observations in
the Prayas Report where it is stated :
“In conclusion, the study has shown that most women did not know
the nature of their employment at the time of getting into dance
bars for work, and they were brought into this work through
middle men. The basic elements of trafficking were found to be
present in the process of entry, though it may not have been in
its overt form. Having come here and seeing no other options,
they had no choice but to continue in this sector……”.
51. The SNDT Report also shows that only 17.40% of the bar girls are
from State of Maharashtra. The bar owners have been exploiting the
girls by sharing the tips received and also capitalizing on their
performance to serve liquor and improve the sales and business.
Again reliance is placed on the observations made in Prayas Report
at page 47 which is as under :
"The women working as either dancers or waiters were not paid
any salary, but were dependant on tips given by customers in the
bar, which varies from day-to-day and from women to another.
This money is often shared with the bar owner as per a fixed
ratio ranging from 30 to 60 percent."
52. The same conclusion is also found in Shubadha Chaukar Report where
it is stated that :
"Tips given by enamoured customers are the main income of girls
working in the bars. Normally dancers do not get a salary as
such. The bar owner makes it look like he is doing a favour by
allowing them to make money by dancing. So he does not give them
a salary. On the contrary a dancer has to hand over to the owner
30 to 40 per cent of what she earns. This varies from bar to
bar.”
53. On the basis of the above, it was submitted that the bar owners
with a view to attract customers introduced dance shows where
extremely young girls dance in an indecent, obscene and vulgar
manner which is detrimental to the dignity of women and depraves
and corrupt the morality.
54. The second limb of the submission is that the prohibition does not
bar the restaurant owners or the beer parlour owners from running
their respective establishments i.e. restaurant business, beer
parlours etc. What is being prohibited is only the dancing as a
form of entertainment in such establishments. The bar owners can
still conduct entertainment programmes like music, orchestras etc
which are not prohibited. It is submitted that loss of income
cannot be a reason for the bar owners to claim that their right to
trade and profession is being infringed. This submission is sought
to be supported by the observations of this Court in T.B. Ibrahim
Vs. Regional Transport Authority, Tanjore[14]. In this case it is
observed by this Court as follows:
“………………..There is no fundamental right in a citizen to carry on
business wherever he chooses and his right must he subject to
any reasonable restriction imposed by the executive authority in
the interest of public convenience. The restriction may have the
effect of eliminating the use to which the stand has been put
hitherto but the restriction cannot be regarded as being
unreasonable if the authority imposing such restriction has
power to do so. Whether the abolition of stand was conducive to
public convenience or not is a matter entirely for the transport
authority to judge, and it is not open to the court to
substitute its own opinion for the opinion of the Authority,
which is in the best position, having regard to its knowledge of
local conditions to appraise the situation".
55. It was next submitted that the High Court wrongly concluded that
the activity of young girls/women being introduced as bar dancers
is not Res Extra Commercium. Such activity by the young girls is a
dehumanising process. In any event, trafficking the girls into bar
dancing completely lacks the element of conscious selection of
profession. An activity which has harmful effects on the society
cannot be classified as a profession or trade for protection under
Article 19(1)(g) of the Constitution. Such dances which are
obscene and immoral would have to be considered as an activity
which is 'Res Extra Commercium'. The High Court has wrongly
concluded otherwise. Reliance is also placed on the observations
made by this Court in the case of State of Bombay Vs. R.M.D.
Chamarbaugwala & Anr.[15] In this case, it was observed by this
Court that activity of gambling could not be raised to the status
of trade, commerce or intercourse and to be made subject matter of
a fundamental right guaranteed by Article 19(1)(g). Similarly, in
this case the dance bars having negative impact on family, women,
youth and has been augmenting the crime rate as well as
trafficking and exploitation of women. Reference was again made to
the various reports and studies to show the disruptive opinion of
the dance bars in the families of the persons employed in such
dance bars. Reliance was placed on the judgment of this Court in
Khoday Distilleries Ltd. & Ors. Vs. State of Karnataka & Ors.[16],
in support of the submission that the trading in liquor is not a
fundamental right. This Court further observed that trafficking in
women or in slaves or in counterfeit coins or to carry on business
of exhibiting or publishing pornographic or obscene films and
literature is not a fundamental right as such activities are
vicious and pernicious. Reliance was placed on the following
observations:
“The correct interpretation to be placed on the expression "the
right to practice any profession, or to carry on any occupation,
trade or business" is to interpret it to mean the right to
practice any profession or to carry on any occupation, trade or
business which can be legitimately pursued in a civilised
society being not abhorrent to the generally accepted standards
of its morality. ………This is apart from the fact that under our
Constitution the implied restrictions on the right to practice
any profession or to carry on any occupation, trade or business
are made explicit in clauses (2) to (6) of Article 19 of the
Constitution and the State is permitted to make law for imposing
the said restrictions.”
“It does not entitle citizens to carry on trade or business in
activities which are immoral and criminal and in articles or
goods which are obnoxious and injurious to health, safety and
welfare of the general public, i.e., res extra commercium,
(outside commerce). There cannot be a business in crime. (c)
Potable liquor as a beverage is an intoxicating and depressant
drink which is dangerous and injurious to health and is,
therefore, an article which is res extra commercium being
inherently harmful. A citizen has, therefore, no fundamental
right to do trade or business in liquor. Hence the trade or
business in liquor can be completely prohibited.”
56. The aforesaid observations were reiterated in State of Punjab &
Anr. Vs. Devans Modern Breweries Ltd. & Anr.[17] Relying on the
aforesaid observations, it was submitted that in the banned
establishments, the dance is performed amidst consumption of
liquor and the State has every right and duty to regulate the
consequence emanating from such circumstances. In support of this
submission, the appellants relied on the judgment of the United
States Supreme Court in New York State Liquor Authority Vs. Dennis
BELLANCA, DBA The Main Event, Et Al.[18]. In this case, the
question raised was about the power of a State to prohibit topless
dancing in an establishment licensed by State to serve liquor. It
was claimed that the prohibition was violative of United States
Constitution. U.S. Supreme Court, upon consideration of the issue,
observed as follows:
"In short, the elected representatives of the State of New York
have chosen to avoid the disturbances associated with mixing
alcohol and nude dancing by means of reasonable restriction upon
establishments which sell liquor for on-premises consumption.
Given the "added presumption in favour of the validity of the
state regulation" conferred by Twenty first Amendment,
California v LaRue, 409 U. S., at 118, we cannot agree with the
New York Court of Appeals that statute violates United States
Constitution. Whatever artistic or communicative value may
attach to topless dancing is overcome by State's exercise of its
broad powers arising under the Twenty-first Amendment. Although
some may quarrel with the wisdom of such legislation and may
consider topless dancing a harmless diversion, the Twenty first
Amendment makes that a policy judgment fin- the state
legislature, not the courts."
57. It was also submitted that in the present case the dance is
conducted in an obscene manner and further the dance bars
eventually happen to be pick up locations that also propagate
prostitution in the area, which is sought to be prevented by the
legislation. The appellants also relied on the judgment in Regina
Vs. Bloom[19]. In this case, the appellants were proprietors of
the clubs who were charged with keeping a disorderly house, which
arose out of matters that occurred in course of strip tease
performances. The Court of Criminal Appeal (England) held that as
regards the cases in which indecent performances or exhibition are
alleged, a disorderly house is a house conducted contrary to law
and good order in that matters performed or exhibited are of such
a character that their performance or exhibition in a place of
common resort amounts to an outrage of public decency or tends to
corrupt or deprave the dignity of women and public morality.
Therefore in the present circumstances, the State, in the interest
of dignity of women, maintenance of public order and morality has
banned dances in such establishments where regulation is virtually
impossible. Since the obscene and vulgar dancing is a res extra
commercium, the establishments cannot claim a fundamental right to
conduct dance therein.
58. It is further submitted that the legislation also does not
infringe any fundamental right of the bar dancers. The prohibition
contained under Section 33A is not absolute and the dancers can
perform in exempted establishments. This apart, the dancers are
also free to dance in auditoriums, at parties, functions, musical
concerts, etc. According to the appellants, another important
facet of the same submission is that the rights of the bar girls
to dance are subject to the right of the bar owners to run the
establishment. In other words, the right of the bar girls are
derivative and they do not have absolute right to dance as a
vocation or profession in the dance bars. This right would be
automatically curtailed in case the dance bar is closed for
economic reasons or as a result of licence being cancelled. In
support of the submission, the appellants relied on a judgment of
this Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri
& Ors. Vs. Union of India & Ors.[20] in which it is held as under
:-
"14. The right of the petitioners to carry on the occupation of
industrial workers is not, in any manner, affected by the
impugned sale. The right to pursue a calling or to carry on an
occupation is not the same thing as the right to work in a
particular post under a contract of employment. If the workers
are retrenched consequent upon and on account of sale, it will
be open to them to pursue their rights and remedies under the
industrial laws. But the point to be noted is that the closure
of an establishment in which a workman is for the time being
employed does not by itself infringe his fundamental right to
carry on an occupation which is guaranteed under article
19(1)(g) of the constitution.”
59. Relying on the above, it is submitted that there is no absolute
right for the bar girls to be employed in the dance bars and that
the right to work would be subject to the continuation of the
establishment. Hence, it is a derivative right emanating from the
right of the dance bar owners to run the establishments subject to
restrictions imposed.
60. It is next submitted that the right to trade and profession is
subject to reasonable restriction under Article 19(6) of the
Constitution. The decision to impose the ban was to defend the
weaker sections from social injustice and all forms of
exploitation. In the instant case, the moral justification is
accompanied with additional legitimate state interest in matters
like safety, public health, crimes traceable to evils, material
welfare, disruption of cultural pattern, fostering of
prostitution, problems of daily life and multiplicity of crimes.
Learned senior counsel for the appellants strongly relied upon the
Statement of Objects and Reasons and the Preamble of the amending
Act to reiterate that the State is enjoined with the duty to
protect larger interest of the society when weaker sections are
being exploited as objects of commerce and when there is issue of
public order and morality involved.
61. The appellants have relied on a number of judgments of this Court
to illustrate the concept of “reasonable restriction” and the
parameters within which the court will examine a particular
restriction as to whether it falls within the ambit of Article
19(6). Reference was made to the State of Madras Vs. V.G. Row[21],
B.P. Sharma Vs. Union of India & Ors.[22], M.R.F. Ltd. Vs.
Inspector Kerala Govt. & Ors.[23]. Since the principles are all
succinctly defined, we may notice the observations made by this
Court in B.P. Sharma’s case (supra).
"The main purpose of restricting the exercise of the right is to
strike a balance between individual freedom and social control.
The freedom, however, as guaranteed under article 19(1)(g) is
valuable and cannot be violated on grounds which are not
established to be in public interest or just on the basis that
it is permissible to do so. For placing a complete prohibition
on any professional activity there must exist some strong reason
for the same with a view to attain some legitimate object and in
case of non-imposition of such prohibition, it may result in
jeopardizing or seriously affecting the interest of the people
in general. If it is not so, it would not be a reasonable
restriction if placed on exercise of the right guaranteed under
article 19 (1)(g). The phrase ''in the interest of the general
public" has come to be considered in several decisions and it
has been held that it would comprise within its ambit interests
like public health and morals (refer to State of Maharashtra v
Himmatbhai Narbheram Rao (AIR 1970 SC 1157), economic stability
On consideration of a catena of decisions on the point, this
Court, in a case reported in 'IMF Ltd v Inspector, Kerala
Government (1998) 8 SCC 227 has laid certain tests on the basis
of which reasonableness of the restriction imposed on exercise
of the right guaranteed under Article 19 (1)(g) can be tested.
Speaking for the Court, Saghir Ahmad (as he then was), laid down
such considerations as follows:
"(1) While considering the reasonableness of the restrictions,
the court has to keep in mind the directive principles of State
policy.
(2) Restrictions must not be arbitrary or of an excessive nature
so as to go beyond the requirement of the interest of general
public.
(3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid
down so as to be of universal application and the same will vary
from case to case as also with regard to the changing
conditions, values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances.
(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by clause (6) of
article 19.
(5) Prevailing social values as also social needs which are
intended to be satisfied by restrictions have to be borne in
mind. (see State of U.P. v Kaushailiya)
(6) There must be a direct and proximate nexus or a reasonable
connection between the restrictions imposed and the object
sought to be achieved. If there is a direct nexus between the
restrictions and the object of the Act, then a strong
presumption in favour of constitutionality of the Act will
naturally arise.”
62. Thereafter, Mr. Subramanium has cited State of Gujarat Vs.
Mirzapur Moti Kureshi Kassab Jamat (supra) in support of the
submission that Statement of Objects and Reasons would be relevant
for considering as to whether it is permissible to place a total
ban under Article 19(6). After considering the principles laid
down earlier, this court concluded as under:-
“We hold that though it is permissible to place a total ban
amounting to prohibition on any profession, occupation, trade or
business subject to satisfying the test of being reasonable in
the interest of general public, yet, in the present case banning
slaughter of cow progeny is not a prohibition but only a
restriction.”
63. Relying on the aforesaid, it was submitted that while considering
the reasonableness, the court should consider the purpose of
restriction imposed, extent of urgency, prevailing conditions at
the time when the restriction was imposed. According to the
appellants, in the instant case, the social order problems in and
around the dance bars had reached such heights which were beyond
the tolerable point. The tests laid down earlier were reiterated
in M.J. Sivani & Ors. Vs. State of' Karnataka & Ors.[24] In this
case, it is observed as follows :
“18…………. In applying the rest of reasonableness, the broad
criterion is whether the law strikes a proper balance between
social control on the one hand and the right of individual on
the other hand. The court must take into account factors like
nature of the right enshrined, underlying purpose of the
restriction imposed, evil sought to be remedied by the law, its
extent and urgency, how far the restriction is or is not
proportionate to the evil and the prevailing conditions at that
time.”
64. Relying on the aforesaid, it was submitted that the larger issue
involved was the trafficking of young women and minors into dance
bars and also incidentally leading to prostitution which could
have been prevented to a large extent only by imposing the ban. In
support of this, learned counsel have relied on the Prayas Report
which shows that 6% of the women working in dance bars are minors
and 87% are between the age of 18-30 years. Similarly, SNDT report
states that minors constitute upto 6.80 % and those between 19 to
30 years of age constitute 88.20%. Prayas Report further states
that "It was found that the women respondents did not find any
dignity in this work. This is borne out by the fact that 47% of
women did not reveal their work to family members and outsiders.
They are often exposed to the sexual overtures of overenthusiastic
customers and are aware of their vulnerability to get exploited".
The appellants also relied on a number of complaints and the
various cases of minor girls being rescued from dance bars during
the period 2002-05 to buttress their submission that the young
girls were subjected to human trafficking. Learned senior counsel
also submitted that the High Court has erroneously concluded that
if the women can safely work as waitress in the Restaurants why
can they not work as dancers. The learned senior counsel also
submitted that the High Court wrongly proceeded on the basis that
there was no evidence before the State or the Court in support of
the legislation. On the basis of the above, it is submitted that
the restrictions imposed are reasonable and the legislation
deserves to be declared intra vires the constitutional provisions.
65. Further, it was submitted that the legislative wisdom cannot be
gone into by the court. The Court can only invalidate the
enactment if it transgresses the constitutional mandate. It is
submitted that invalidation of a statute is a grave step and that
the legislature is the best judge of what is good for the
community. The legislation can only be declared void when it is
totally absurd, palpably arbitrary, and cannot be saved by the
court. It is reiterated that the principle of “Presumption of
Constitutionality” has to be firmly rebutted by the person
challenging the constitutionality of legislation. The United
States Supreme Court had enunciated the principle of
constitutionality in favour of a statute and that the burden is
upon the person who attacks it to show that there has been a clear
transgression of any Constitutional provision. The appellants
relied on the observations made in Charanjit Lal Chowdhury Vs.
Union of India & Ors.[25] wherein this Court observed as follows :
“It must be presumed that a legislature understands and
correctly appreciates the need of its own people, that its laws
are directed to problems made manifest by experience and that
its discriminations are based on adequate grounds"
66. The same principle was reiterated by this Court in State of Bihar
& Ors. Vs. Bihar Distillery Ltd. & Ors.[26] in the following words
:
“The approach of the Court, while examining the challenge to the
constitutionality of an enactment, is to start with the
presumption of constitutionality. The court should try to
sustain its validity to the extent possible. It should strike
down enactment only when it is not possible to sustain it. The
court should not approach the enactment with a view to pick
holes or to search for defects of drafting, much less
inexactitude of language employed. Indeed, any such defects of
drafting should be ironed out as a part of attempt to sustain
the validity/constitutionality of the enactment. After all, an
act by the legislature represents the will of the people and
that cannot be lightly interfered with. The unconstitutionality
must be plainly and clearly established before an enactment is
declared as void."
67. On the basis of the above, it was submitted that the burden of
proof is upon the Respondents herein to prove that the
enactment/amendment is unconstitutional. Once the respondents
prima facie convince the Court that the enactment is
unconstitutional then the burden shifts upon the State to satisfy
that the restrictions imposed on the fundamental rights satisfy
the test of or reasonableness. The High Court, according to the
appellants, failed to apply the aforesaid tests.
68. Finally, it was submitted that in the event this Court is not
inclined to uphold the constitutionality of the impugned
provisions, it ought to make every effort to give the provision a
strained meaning than what appears to be on the face of it. This
is based on the principle that it is only when all efforts to do
so fail, the court ought to declare a statute to be
unconstitutional. The principle has been noticed by this Court in
Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)[27]
wherein it is observed as follows :
"46. In our opinion, there is one and only one ground for
declaring an Act of the legislature (or a provision in the Act)
to be invalid, and that is if it clearly violates some provision
of the constitution in so evident a manner as to leave no manner
of doubt. This violation can, of course, be in different ways
But before declaring the statute to be unconstitutional, the
court must be absolutely sure that there can be no two views
that are possible, one making the statute constitutional and the
other making it unconstitutional, the former view must always be
preferred. Also, the court must make every effort to uphold the
constitutional validity of a statute, even if that requires
giving strained construction or narrowing down its scope vide
Rt. Rev. Msgr. Mark Netto v State of Kerala (1979) 1 SCC 23 para
6.
69. The same principle was reiterated in Kedar Nath Singh Vs. State of
Bihar[28] which is as follows :
“It is well settled that if certain provisions of law, construed
in one way, would make them consistent with the Constitution and
another interpretation would render them unconstitutional, the
court would lean in favour of the former construction.”
70. On the basis of the above, it was submitted that this Court ought
to read down the provision in the following manner:
“All dance” found in Section 33A of the Police Act may be read
down to mean that “dances which are obscene and derogatory to the
dignity of women”. This would ensure that there is no violation of any
of the rights of the girls who dance as well as that of the owners of
the establishments. Still further, it was submitted that even if the
reading of the provisions as mentioned above is not accepted, Section
33A can still be saved by applying the doctrine of severability. It is
submitted that the intention of the legislature being to prohibit and
ban obscene dance in the interest of society and to uphold the dignity
of women, by severing the exempting section, namely, Section 33B and
the provision which is contained in Section 33A can be declared to be
in accordance with the object of legislature. This would remove the
vice of discrimination, as declared by the High Court.
Respondents’ Submissions:
71. In response to the aforesaid elaborate submissions, learned senior
counsel appearing for the respondents have also submitted written
submissions. Mr. Mukul Rohatgi, learned senior counsel appeared
for respondent – Indian Hotel and Restaurants Association in
C.A.No.2705 of 2006, whereas Dr. Rajeev Dhawan,
learned senior counsel, appeared on behalf of Bhartiya Bar Girls
Union in C.A.No.2705 of 2006. Mr. Anand Grover, learned senior
counsel, appeared for respondent Nos. 1 to 6 in W.P.No.2338/2005
and respondent No. 1 and 2 in W.P. No.2587 of 2005.
72. Since the High Court has accepted the submissions made on behalf
of the respondents (writ petitioners in the High Court), it shall
not be necessary to note the submissions of the learned senior
counsel as elaborately as the submissions of the appellants
herein. Mr. Mukul Rohatgi submitted that, at the heart of the
present case, the controversy revolved around the right to earn a
livelihood more so than the right of a person to choose the
vocation of their calling. It was submitted that apart from the
reasoning given in the judgment of the High Court, the challenge
to the impugned legislation can be sustained on other grounds
also. He submits that a classification of the establishments into
three stars and above, and below is not based on any intelligible
differentia and is per se discriminatory and arbitrary. Bar
dancers have a right to livelihood under Article 21 and the ban
practically takes away their right to livelihood. He therefore,
submits that the ban is violative of Articles 14, 19(1)(a) and
19(1)(g) and 21 of the Constitution. Relying on the observations
made by this Court in the case of I.R. Coelho (Dead) by LRs. Vs.
State of T.N.[29], he submits that these articles are the very
heart and soul of the Constitution and are entitled to greater
protection by the Court than any other right. Mr. Rohatgi submits
that the submissions made by the appellants with regard to the
protecting the dignity of women and preventing trafficking in
women are misconceived. There are adequate measures in the
existing provisions, licensing conditions which would safeguard
the dignity of women. Relying on Sections 370 and 370A of the IPC,
he submits that there are adequate alternate mechanisms for
preventing trafficking in women. Elaborating on the submissions
that dance is protected by Article 19(1)(a) of the Constitution
being a part of fundamental right of speech and expression, he
relied upon the observations made by this Court in Sakal Papers
(P) Ltd. & Ors. Vs. The Union of India[30]. He has also made a
reference to some decisions of the High Court recognizing that
dancing and cabaret are protected rights under Article 19(1)(a).
He points out that it is always open to a citizen to commercially
benefit from the exercise of the fundamental right. Such
commercial benefit could be by a bar owner having dance
performance or by the dancers themselves using their creative
talent to carry on an occupation or profession. The impugned
amendment prohibits the bar owners from carrying on any business
or trade associated with dancing in these establishments and the
bar girls from dancing in those premises. He then submits that the
amendment violates Article 19(1)(g), by imposing restrictions by
way of total prohibition of dance. Even though the freedom under
Article 19(1)(g) of the Constitution is not absolute, any
restriction imposed upon the same have to fall within the purview
of clause 6 of Article 19. Therefore, the restriction imposed by
law must be reasonable and in the interest of general public. It
was also submitted that while such restriction may incidentally
touch upon other subjects mentioned above, such as morality or
decency, the same cannot be imposed only in the interest of
morality or decency. Mr. Rohatgi then submitted that the reasons
set out in the objects and reasons of the amendment are not
supported by any evidence which would demonstrate that there was
any threat to public order. There is also no material to show that
the members of the Indian Hotel and Restaurants Association were
indulging in human trafficking or flesh trade. Therefore,
according to Mr. Rohatgi, the ban was not for the protection of
any interests of the general public. In fact, Mr. Rohatgi
emphasised that the Statement of Objects and Reasons does not
refer to trafficking. The compilation of 600 pages given to the
respondents by the appellants does not contain a single complaint
about trafficking. All allegations relating to trafficking have
been introduced only to justify the ban on dancing. He, therefore,
submits that the total ban imposed on dancing violates the
fundamental right guaranteed under Article 19(1)(g). Learned
senior counsel further submitted that dancing is not res extra
commercium. He emphasised that if the dancing of similar nature in
establishments, mentioned in Section 33B is permissible, the
prohibition of similar dance performance in establishments covered
under Section 33 cannot be termed as reasonable and or “in the
interest of general public”. Therefore, according to Mr. Rohatgi,
the restrictions do not fall within the scope of Article 19(6). He
relied on the judgment of this Court in Anuj Garg & Ors. Vs. Hotel
Association of India & Ors.[31], wherein a ban on employment of
women in establishment where liquor was served, was declared
discriminatory and violative of Articles 14, 15, 19 and 21. In
this case, it was held as under :
“…….Women would be as vulnerable without State protection as by
the loss of freedom because of the impugned Act. The present law
ends up victimising its subject in the name of protection. In
that regard the interference prescribed by the State for
pursuing the ends of protection should be proportionate to the
legitimate aims. The standard for judging the proportionality
should be a standard capable of being called reasonable in a
modern democratic society.
Instead of putting curbs on women's freedom, empowerment would
be a more tenable and socially wise approach. This empowerment
should reflect in the law enforcement strategies of the State as
well as law modelling done in this behalf.
Also with the advent of modern State, new models of security
must be developed. There can be a setting where the cost of
security in the establishment can be distributed between the
State and the employer.”
73. Relying on the State of Gujarat Vs. Mirzapur Moti Kureshi Kassab
Jamat (supra), Mr. Rohatgi submitted that the standard for judging
reasonability of restriction or restrictions which amounts to
prohibition remains the same, excepting that a total prohibition
must also satisfy the test that a lesser alternative would be
inadequate. The State has failed to even examine the possibility
of the alternative steps that could have been taken. He has also
relied on the judgments with regard to the violation of Article 14
to which reference has already been made in the earlier part of
the judgment. Therefore, it is not necessary to reiterate the
same. However, coming back to Section 33B, Mr. Rohatgi submitted
that dancing that is banned in the establishments covered under
Section 33A is permitted under the exempted establishments under
Section 33B. According to learned senior counsel, the differentia
in Section 33A and 33B does not satisfy the requirement that it
must be intelligible and have a rational nexus sought to be
achieved by the statute. He submits that the purported
“immorality” gets converted to “virtue” where the dancer who is
prohibited from dancing in an establishment covered under Section
33A, dances in an establishment covered under Section 33B. The
discrimination, according to Mr. Rohatgi, is accentuated by the
fact that for a breach committed by the licensees in the category
of Section 33B only their licenses will be cancelled but the
licensees of establishments covered under Section 33A would have
to close down their business. He further submits that the
provision contained in Section 33A is based on the presumption of
the State Government that the performance of dance in prohibited
establishments having lesser facilities than three star
establishments would be derogatory to the dignity of women. The
State also presumed that dancing in such establishments is likely
to deprave, corrupt or injure public morality. The presumption is
without any factual basis. The entry of women in such
establishments is not banned. There is also no prohibition for
women to take up alternative jobs within such establishments. They
can serve liquor and beer to persons but this does not lead to the
presumption that it would arouse lust in the male customers. On
the other hand, when women start dancing it is presumed that it
would arouse lust in the male customers. He emphasised the
categorization of establishments under Sections 33A and 33B does
not specify the twin criteria: (i) that the classification must be
founded on an intelligible differentia which distinguishes those
that are grouped together from others; and (ii) the differentia
must have a rational nexus or relation to the object sought to be
achieved by the legislation. He submits that there is a clear
discrimination between the prohibited establishments and the
exempted establishments. He points out that the only basis for the
differentiation between the exempted and prohibited establishments
is the investment and the paying capacity of patrons. Such a
differentiation, according to Mr. Rohatgi, is not permissible
under the Constitution.
74. The next submission of Mr. Rohatgi is that Article 21 guarantees
the right to life which would include the right to secure a
livelihood and to make life meaningful. Article 15(1) of the
Constitution of India guarantees the fundamental right that
prohibits discrimination against any citizen, inter alia, on the
ground only of sex. Similarly Article 15(2) lays down that no
citizen shall, on grounds only of, inter alia, sex, be subject to
any disability, liability, restriction or condition with regard,
inter alia, to “access to shops, public restaurants, hotels and
places of public entertainment.” The provision in Article 15(3) is
meant for protective discrimination or a benign discrimination or
an affirmative action in favour of women and its purpose is not to
curtail the fundamental rights of women. He relied on the
observations made by this Court in Government of A.P. Vs. P.B.
Vijayakumar & Anr.[32] :-
“The insertion of clause (3) of Article 15 in relation to women
is a recognition of the fact that centuries, women of this
country have been socially and economically handicapped. As a
result, they are unable to participate in the socio-economic
activities of the nation on a footing of equality. It is in
order to eliminate this socio-economic backwardness of women and
to empower them in a manner that would bring about effective
equality between men and women that Article 15(3) is placed in
Article 15. Its object is to strengthen and improve the status
of women. An important limb of this concept of gender equality
is creating job opportunities for women……’’
(Emphasis supplied)
75. He submits that the impugned legislation has achieved the opposite
result. Instead of creating fresh job opportunities for women it
takes away whatever job opportunities are already available to
them. He emphasised that the ban also has an adverse social
impact. The loss of livelihood of bar dancers has put them in a
very precarious situation to earn the livelihood. Mr. Rohatgi
submitted that the dancers merely imitate the dance steps and
movements of Hindi movie actresses. They wear traditional clothes
such as ghagra cholis, sarees and salwar kameez. On the other
hand, the actresses in movies wear revealing clothes: shorts,
swimming costumes and revealing dresses. Reverting to the reliance
placed by the appellants on the Prayas Report and Shubhada Chaukar
Report, Mr. Rohatgi submitted that both the reports are of no
value, especially in the case of Prayas Report which is based on
interviews conducted with only few girls. The SNDT Report actually
indicates that there is no organized racket that brings women to
the dance bars. The girls’ interview, in fact, indicated that
they came to the dance bars through family, community, neighbors
and street knowledge. Therefore, according to the Mr. Rohatgi,
the allegations with regard to trafficking to the dance bars by
middlemen are without any basis. Most of the girls who performed
dance are generally illiterate and do not have any formal
education. They also do not have any training or skills in
dancing. This clearly rendered them virtually unemployable in any
other job. He, therefore, submits that the SNDT Report is
contradictory to the Prayas Report. Thus, the State had no
reliable data on the basis of which the impugned legislation was
enacted. Mr. Rohatgi further submitted that there are sufficient
provisions in various statutes which empowered the Licensing
Authority to frame rules and regulations for licensing/controlling
places of public amusement or entertainment. By making a reference
to Rules 120 and 123 framed under the Amusement Rules, 1960; he
submits that no performers are permitted to commit on the stage or
any part of the auditorium any profanity or impropriety of
language. These dancers are also not permitted to wear any
indecent dress. They are also not permitted to make any indecent
movement or gesture whilst dancing. Similar provisions are
contained under the Performance License. Although learned senior
counsel has listed all the regulatory provisions contained under
the Bombay Police Act, it is not necessary to notice the same. The
submission based on this regulation is that there is wide
amplitude of power available to the appellants for controlling any
perceived violation of dignity of women through obscene dances. He
submits that the respondents are being made a scapegoat for
lethargy and failure of police to implement the provisions of law
which are already in place and are valid and subsisting. Failure
of the appellants in not implementing the necessary rules and
regulations would not justify the impugned legislation. Learned
senior counsel has also submitted that the State Government, in
its effort to regulate the conduct of dances, had formed a
Committee to make suggestions for amendment of the existing Rules.
The Committee had prepared its report and submitted the same to
the State Government. However, the State Government did not take
any steps for implementation of the recommendation which was
supported by the Indian Hotel and Restaurant Association. He
submits that the judgment of the High Court does not call for any
interference.
76. Dr. Rajeev Dhawan, learned senior counsel, has also highlighted
the same issues. He has submitted that the provisions contained in
Section 33A(1) prohibit performance of dance of any kind or type.
Since the Section contained the Non Obstante Clause, it is a stand
alone provision absolutely independent of the Act and the Rules.
He submits that the provisions are absolutely arbitrary and
discriminatory. Under Section 33A(1), there is an absolute
provision which is totally prohibiting dance in eating houses,
permit rooms or beer bars. On the other hand, Section 33B
introduced the discriminatory provision which allows such an
activity in establishments where entry is restricted to members
only and three starred or above hotels. He also emphasised that
the consequence of violation of Section 33A is punishment up to 3
years imprisonment or Rs. 2 lakhs fine or both and with a minimum
3 months and Rs.50,000/- fine unless reasons are recorded. The
Section further contemplates that the licence shall stand
cancelled. Section 33A(6) makes the offence cognizable and non-
bailable. According to Dr. Rajeev Dhawan, the provision is
absolute and arbitrary. He reiterates that the non obstante clause
virtually makes Section 33A stand alone. Further Section 33A(1) is
discretion less. It applied to all the establishments and covers
all the activities, including holding of performance of dance of
any kind or type in any eating house, permit room or beer bar.
There is total prohibition in the aforesaid establishments. The
breach of any condition would entail cancellation of licence.
According to Dr. Dhawan, Section 33A is a draconian code which is
discretion less overbroad, arbitrary with mandatory punishment for
offences which are cognizable and non-bailable. He then emphasised
that the exemption granted to the establishment under Section 33B
introduces blatant discrimination. He submits that the
classification of two kinds of establishment is unreasonable.
According to Dr. Dhawan, it is clear that Section 33B makes
distinction on the grounds of “class of establishments” or “class
of persons who frequent the establishment” and not on the form of
dance. He reiterates the submission that if dance can be
permitted in exempted institutions it cannot be banned in the
prohibited establishments. He submitted that treating
establishments entitled to a performance licence differently, even
though they constitute two distinct classes would be
discriminatory as also arbitrary, considering the object of the
Act and the same being violative of Article 14 of the Constitution
of India. Answering the submission on burden of proof with regard
to the reasonableness of the restriction, Dr. Dhawan submits
that the burden of showing that the recourse to Article 19(6) is
permissible lies upon the State and not on the citizen, he relies
on the judgment of this Court in M/s. Laxmi Khandsari & Ors. Vs.
State of U.P. & Ors.[33]
77. Relying on the Narendra Kumar & Ors. Vs. Union of India &
Ors.[34], he submitted that the total prohibition in Section 33A
must satisfy the test of Article 19(6) of the Constitution.
Reliance is placed on a number of judgments to which we have made
a reference earlier. Dr. Dhawan further emphasised that the
reports relied upon by the State would not give a justification
for enacting the impugned legislation. He points out that the
study conducted by Shubhada Chaukar for Vasantrao Bhagwat Memorial
Fellowship entitled “Problems of Mumbai Bar girls” is based on
conversations with 50 girls. According to Dr. Dhawan, this report
is thoroughly unreliable. The report itself indicates that there
are about one lakh bar girls in Mumbai-Thane Region, therefore,
interview of 50 girls would not be sufficient to generate any
reliable data. The report also states that there are about 1000-
1200 bars, but it is based on interaction with seven bar owners.
Even then the report does not suggest complete prohibition but
suggests a framework which “regulates” the functioning of bars,
performances by singers, dancers etc. Similarly, the Prayas Report
cannot be relied upon. The study was, in fact, done after the ban
was imposed by the State Government. Even this report indicates
that after the ban there was urgent need to find alternate source
of livelihood for these girls. There was no facility of education
for the children. Even this report finds that the families from
which these girls come are economically weak. Six percent of minor
children comprise the dancing population. They are not provided
any specialized training to be bar dancers. They do not live in
self owned houses. The SNDT Report clearly states that the study
is based on interaction with 500 girls from 50 bars. The report
indicates that there are a number of prevalent myths which are
without any basis. It is pointed out that, according to the
report, the following are the myths :-
1. It is an issue of trafficking from other States and
countries.
2. 75% dancers are from Bangladesh.
3. Only 3% are dancers from Maharashtra.
4. Bar culture is against the tradition of Maharashtra.
5. Girls who dance are minors.
6. Bar Dancers hide their faces.
7. Girls don’t work hard.
8. Bar Girls can be rehabilitated in Call Centers.
9. Dancing in Bars is sexual exploitation.
10. Girls are forced into sex work.
11. Dance bars are vulgar and obscene.
12. Ban will solve all these problems.
78. The study, in fact, recommends that the dance bars should not be
banned. There should be regularization of working conditions of
bar dancers. There should be monitoring and prevention of entry of
children into these establishments. There should be protection
against forced sexual relations and harassments. There should be
security of earning, medical benefits and protection from unfair
trade practices. The report recommends that there is a need for
development that increases rather than reduces options for women.
The report also indicates that the ban had an adverse impact in
that respect. It will lead to women becoming forced sex workers.
The second report of SNDT is based on empirical interviews. It
recommends that the ban imposed should be lifted immediately. Dr.
Dhawan has further elaborated the shortcomings of the Prayas
Report. He has also emphasised that both the SNDT and Prayas
Report substantiate the fact that dancers were the sole bread
winners in their families earning approximately Rs.5,000/- to
Rs.20,000/- per month. They were supporting large families in
Mumbai as well as in their native places. After the ban, these
families are left without a source of income and have since then
been rendered destitute. He also points out that the SNDT study
indicates that many dancers came from environments/employments
where they had been exploited (maid servants, factory workers,
etc.). Most of these women had taken employment as dancers in view
of the fact that it afforded them financial independence and
security. The SNDT Report points out that not a single bar dancer
has ever made any complaint about being trafficked. The reports,
according to Dr. Dhawan, clearly indicate that complete
prohibition is not the solution and regulation is the answer.
79. Dr. Dhawan then submitted that the conclusions recorded by the
High Court on equality and exploitation need to be affirmed by
this Court. He has submitted that to determine the reasonableness
of the restriction, the High Court has correctly applied the
direct and inevitable effect test. He seeks support for the
submission, by making a reference to the observations made by this
Court in Rustom Cavasjee Cooper Vs. Union of India[35] and Maneka
Gandhi Vs. Union of India & Anr.[36], he emphasised that the
direct operation of the Act upon the rights forms the real test.
The principle has been described as the doctrine of intended and
real effect or the direct and inevitable effect, in the case of
Maneka Gandhi (supra). Dr. Dhawan also emphasised that dancing is
covered by Article 19(1)(a) even though it has been held by the
High Court that it is not an expression of dancers but their
profession. He relied on the observations of this Court in Bharat
Bhawan Trust Vs. Bharat Bhawan Artists’ Association & Anr.[37]
wherein it is held that the acting done by an artist is not done
for the business. It is an expression of creative talent, which is
a part of expression.
80. Illustrations submitted by Dr. Dhawan are that the legislation
cannot be saved even by adopting the doctrine of proportionality
which requires adoption of the least invasive approach. Dr. Dhawan
has reiterated that the suggestions made by the Committee pursuant
to the resolution dated 19th December, 2002 ought
to be accepted. According to Dr. Dhawan, acceptance of such
suggestions would lead to substantial improvement. If the State
really seeks to control obscene bar dancing, he submitted that the
solution can be based on ensuring that:- bar girls are unionized;
there is adequate protection to the girls and more involvement of
the workers in self improvement and self regulation. Dr. Dhawan
does not agree with Mr. Gopal Subramanium that this should be
treated as a case of trafficking with complicated crisis centric
approach.
81. Mr. Anand Grover, learned senior counsel has rebutted the factual
submissions made by the appellants. He submits that the State has
wrongly mentioned before the court that women who dance in the bar
are trafficked or compelled to dance against their will and that
the significant number of dancers are minor or under the age of 18
years; that the majority of dancers are from states outside
Maharashtra which confirms the allegation of inter-state
trafficking; that dancing in bars is a gateway to prostitution;
that bar dancing is associated with crime and breeds criminality;
that the conditions of dance bars are exploitative and
dehumanizing for the women. Lastly, that bar dancing contributes
to social-ills and illicit affairs between dancers and the male
visitors break up of family and domestic violence against wives of
men visiting the dance bars. According to Mr. Grover, the
aforesaid assertions are founded on incorrect, exaggerated or
overstated claims. Learned senior counsel has also indicated that
there is great deal of fudging of figures by police with regard to
complaints and cases registered under the dance bars to
substantiate their contentions. He has relied on the official data
on the incidence of trafficking crimes from the National Crime
Records Bureau report for the year 2004-2011 to show that there is
no nexus between dance bars and trafficking in women. Learned
senior counsel has reiterated the submission that Section 33A and
Section 33B of the Bombay Police Act violate Article 14 of the
Constitution. He has relied on the judgment of this Court in D.S.
Nakara & Ors. Vs. Union of India[38]. Learned senior counsel also
reiterated that the classification between the establishment under
Section 33A and Section 33B is unreasonable.
82. The High Court, according to the learned senior counsel, has
wrongly accepted the explanation given by the appellants in their
affidavits that the classification is based on the type of dance
performed in the establishments. This, according to learned senior
counsel, is contrary to the provisions contained in the aforesaid
sections. He reiterated the submissions that the distinction
between the establishments is based not on the type of dance
performance but on the basis of class of such establishments. He
makes a reference to the affidavit in reply filed in Writ Petition
No.2450 of 2005 at paragraph 33 inter alia stated as follows :-
“Even otherwise five star hotels are class themselves and can’t
be compared with popularly known dance bars….the persons
visiting these hotels or establishments referred therein above
stand on different footing and can’t be compared with the people
who attend the establishments which are popularly known as dance
bar. They belong to different strata of society and are a class
by themselves.”
83. These observations, according to learned counsel, are contrary to
the decision of this Court in Sanjeev Coke Manufacturing Company
Vs. M/s Bharat Coking Coal Limited & Anr.[39] Mr. Grover has also
reiterated the submission that classification between Sections 33A
and 33B establishments has no rational nexus with the object
sought to be achieved by the impugned legislation. He submits that
whereas Section 33A prohibits any kind or type of dance
performance in eating house, permit room or beer bar, i.e., dance
bars, Section 33B allows all types and kinds of dances in
establishments covered under Section 33B. Learned senior counsel
further submits that the object of the impugned legislation is to
protect women from exploitation by prohibiting dances, which were
of indecent, obscene and vulgar type, derogatory to the dignity of
women and likely to deprave, corrupt or injure the public
morality, or morals. This is belied by the fact that all kinds of
dances are permitted in the exempted establishments covered under
Section 33B. He has also given the example that most of the Hindi
film songs or even dancing in discos are much more sexually
explicit than the clothes worn by the bar dancers.
84. Learned senior counsel further submitted that exploitation of
women is not limited only to dance bar. Such exploitation exists
in all forms of employment including factory workers, building
site workers, housemaids and even waitresses. In short, he
reiterated the submission that the legislation does not advance
the objects and reasons stated in the amendment Act. Mr. Grover
further submitted that the impugned law violates the principle of
proportionality. He has pointed out that gender stereotyping is
also palpable in the solution crafted by the legislature. The
impugned statute does not affect a man’s freedom to visit bars and
consume alcohol, but restricts a woman from choosing the
occupation of dancing in the same bars. The legislation,
patronizingly, seeks to ‘protect’ women by constraining their
liberty, autonomy and self-determination. Mr. Grover has also
reiterated the submission that Section 33A is violative of Article
19(1)(a) of the Constitution. According to Mr. Grover, restriction
imposed on the freedom of expression is not justified under
Article 19(6) of the Constitution. He submits that dancing in
eating houses, permit rooms or beer bars is not inherently
dangerous to public interest. Therefore, restrictions on the
freedom of speech and expression are wholly unwarranted. Mr.
Grover also emphasised that dancing is not inherently dangerous or
pernicious and cannot be treated akin to trades that are res extra
commercium. Bar dancers, therefore, have a fundamental right to
practice and pursue their profession/occupation of dancing in
eating houses, beer bars and permit rooms. The social evils
projected by the appellants, according to Mr. Grover,
are related to serving and drinking of alcohol and not dancing.
Therefore, there was no rational nexus in the law banning all
types of dances. He also emphasised that the women can be allowed
to work as waitresses to serve liquor and alcoholic drinks. There
could be no justification for banning the performance of dance by
them. Mr. Grover also submitted that the ban contained in Section
33A violates Article 21 of the Constitution. He submits that the
right to livelihood is an integral part of the right to life
guaranteed under Article 21 of the Constitution. The deprivation
of right to livelihood can be justified if it is according to
procedure established by law under Article 21. Such a law has to
be fair, just and reasonable both substantively and procedurally.
The impugned law, according to Mr. Grover, does not meet the test
of substantive due process. It does not provide any alternative
livelihood options to the thousands of bar dancers who have been
deprived of their legitimate source of livelihood. In the name of
protecting women from exploitation, it has sought to deprive more
than 75,000 women and their families from their livelihoods and
their only means of subsistence. Mr. Grover has submitted that
there is no viable rehabilitation or compensation provision
offered to the bar dancers, in order to tide over the loss of
income and employment opportunities. According to learned senior
counsel, in the last 7 years, the impact of the prohibition has
been devastating on the lives of the bar dancers and their
families. This has deprived the erstwhile bar dancers of a life
with dignity. In the present context, the dignity of bar dancers
(of persons) and dignity of dancing (work) has been conflated in a
pejorative way. According to Mr. Grover, the bar dancing in
establishments covered under Section 33A has been demeaned because
the dancers therein hail from socially and economically lower
castes and class. It is a class based discrimination which would
not satisfy the test of Article 14.
85. Lastly, he has submitted that the plea of trafficking would not be
a justification to sustain the impugned legislation. In fact,
trafficking is not even mentioned in the Statement of Objects and
Reasons, it was mentioned for the first time in the affidavit
filed by the State in reply to the writ petition. According to
learned senior counsel, the legislation has been rightly declared
ultra vires by the High Court.
86. We have considered the submissions made by the learned senior
counsel for the parties. We have also perused the pleadings and
the material placed before us.
87. The High Court rejected the challenge to the impugned Act on the
ground that the State legislature was not competent to enact the
amendment. The argument was rejected on the ground that the
amendment is substantially covered by Entries 2, 8, 33 and 64 of
List II. The High Court further observed that there is no
repugnancy between the powers conferred on the Centre and the
State under Schedule 7 List II and III of the Constitution of
India. The High Court also rejected the submissions that the
proviso to Section 33A (2) amounts to interference with the
independence of the judiciary on the ground that the legislature
is empowered to regulate sentencing by enactment of appropriate
legislation. Such exercise of legislative power is not uncommon
and would not interfere with the judicial power in conducting
trial and rendering the necessary judgment as to whether the guilt
has been proved or not. The submission that the affidavit filed by
Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered
because it was not verified in accordance with law was rejected
with the observations that incorrect verification is curable and
steps have been taken to cure the same. The submissions made in
Writ Petition 2450 of 2005 that the amendment would not apply to
eating houses and would, therefore, not be applicable in the
establishments of the petitioners therein was also rejected. It
was held that the “place of public interest” includes eating
houses which serve alcohol for public consumption. It was further
observed that the amendment covered even those areas in such
eating houses where alcohol was not served. The High Court also
rejected the challenge to the amendment that the same is in
violation of Article 15(1) of the Constitution of India. It has
been observed that dancing was not prohibited in the
establishments covered under Section 33B only on the ground of
sex. What is being prohibited is dancing in identified
establishments. The Act prohibits all types of dance in banned
establishments by any person or persons. There being no
discrimination on the basis of gender, the Act cannot be said to
violate Article 15(1) of the Constitution.
88. The High Court has even rejected the challenge to the impugned
amendment on the ground that the ban amounts to an unreasonable
restriction, on the fundamental right of the bar owners and bar
dancers, of freedom of speech and expression guaranteed under
Article 19(1)(a). The submission was rejected by applying the
doctrine of pith and substance. It has been held by the High Court
that dance performed by the bar dancers can not fall within the
term “freedom of speech and expression” as the activities of the
dancers are mainly to earn their livelihood by engaging in a trade
or occupation. Similarly, the submission that the provision in
Section 33A was ultra vires Article 21 of the Constitution of
India was rejected, in view of the ratio of this Court, in the
case of Sodan Singh & Ors. Vs. New Delhi Municipal Committee &
Ors.[40] wherein it is observed as follows :-
“We do not find any merit in the argument founded on Article 21
of the Constitution. In our opinion, Article 21 is not attracted
in a case of trade or business – either big or small. The right
to carry on any trade or business and the concept of life and
personal liberty within Article 21 are too remote to be
connected together.”
89. Since, no counter appeal has been filed by any of the respondents
challenging the aforesaid findings, it would not be appropriate
for us to opine on the correctness or otherwise of the aforesaid
conclusions.
90. However in order to be fair to learned senior counsel for the
respondents, we must notice that in the written submissions it was
sought to be argued that in fact the amendments are also
unconstitutional under Articles 15(1), 19(1)(a) and 21. Dr. Dhawan
has submitted that the High Court has erroneously recorded the
finding that the dancing in a bar is not an expression of dancers
but their profession, and, therefore, it can not get the
protection of Article 19(1)(a). Similarly, he had submitted that
the High Court in the impugned judgment has erroneously held that
the challenge to the amendment under Article 21 is too remote. The
respondents, therefore, would invite this Court to examine the
issue of “livelihood” under Article 142 of the Constitution of
India being “question of law of general public importance.
According to Dr. Dhawan, the High Court ought to have protected
the bar dancers under Articles 19(1)(a) and 21 also. As noticed
earlier, Mr. Rohatgi and Mr. Grover had made similar submissions.
We are, however, not inclined to examine the same in these
proceedings. No separate appeals have been filed by the
respondents specifically raising a challenge to the observations
adverse to them made by the High Court. We make it very clear that
we have not expressed any opinion on the correctness or otherwise
of the conclusions of the High Court with regard to Sections 33A
and 33B not being ultra vires Articles 15(1), 19(1)(a) and Article
21. We have been constrained to adopt this approach:
1) Because there was no challenge to the conclusions of the
High Court in appeal by respondents.
2) The learned senior counsel of the appellants had no
occasion to make submissions in support of the
conclusions recorded by the High Court.
3) We are not inclined to exercise our jurisdiction under
Article 142, as no manifest injustice has been caused to
the respondents. Nor can it be said that the conclusions
recorded by the High Court are palpably erroneous so as
to warrant interference, without the same having been
challenged by the respondents. We, therefore, decline the
request of Dr. Rajeev Dhawan.
91. This now brings us to the central issue as to whether the findings
recorded by the High Court that the impugned amendment is ultra
vires Article 14 and 19(1)(g) suffers from such a jurisdictional
error that they cannot be sustained.
Is the impugned legislation ultra vires Article 14?
92. Before we embark upon the exercise to determine as to whether the
impugned amendment Act is ultra vires Article 14 and 19(1)(g), it
would be apposite to notice the well established principles for
testing any legislation before it can be declared as ultra vires.
It is not necessary for us to make a complete survey of the
judgments in which the various tests have been formulated and re-
affirmed. We may, however, make a reference to the judgment of
this Court in Budhan Choudhry Vs. State of Bihar[41], wherein a
Constitution Bench of seven Judges of this Court explained the
true meaning and scope of Article 14 as follows :-
“It is now well established that while article 14 forbids class
legislation, it does not forbid reasonable classification for
the purposes of legislation. In order, however, to pass the test
of permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and
(ii) that that differentia must have a rational relation to the
object sought to be achieved by the statute in question. The
classification may be founded on different bases, namely,
geographical, or according to objects or occupations or the
like. What is necessary is that there must be a nexus between
the basis of classification and the object of the Act under
consideration. It is also well established by the decisions of
this Court that Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.”
93. The aforesaid principles have been consistently adopted and
applied in subsequent cases. In the case of Ram Krishna Dalmia
(supra), this Court reiterated the principles which would help in
testing the legislation on the touchstone of Article 14 in the
following words :
“(a) That a law may be constitutional even though it relates to
a single individual if on account of some special circumstances
or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself
(b) That there is always presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of
the constitutional principles;
(c) That it must he presumed that the legislature understands
and correctly appreciates the need of its own people, that its
laws are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds;
(d) That the legislature is free to recognise degrees of harm
and may confine its restrictions to those cases where the need
is deemed to be the clearest;
(e) That in order to sustain the presumption of
constitutionality the court may take into consideration matters
of common knowledge, matters of common report, the history of
the times and may assume every state of facts which can he
conceived existing at the time of the legislation; and
(f) That while good faith and knowledge of the existing
conditions on the part of the legislature are to be presumed, if
there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the
classification may be reasonably be regarded as based, the
presumption of constitutionality cannot be carried to the extent
of always holding that there must be some undisclosed and
unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation."
(Italics are ours)
94. These principles were reiterated by this Court in Shashikant
Laxman Kale (supra). The relevant observations have already been
noticed in the earlier part of the judgment.
95. The High Court has held that the classification under Sections 33A
and 33B was rational because the type of dance performed in the
establishments allowed them to be separated into two distinct
classes. It is further observed that the classification does not
need to be scientifically perfect or logically complete.
96. The High Court has, however, concluded that classification by
itself is not sufficient to relieve a statute from satisfying the
mandate of the equality clause of Article 14. The amendment has
been nullified on the second limb of the twin test to be satisfied
under Article 14 of the Constitution of India that the amendment
has no nexus with the object sought to be achieved. Mr.
Subramanium had emphasised that the impugned enactment is based on
consideration of different factors, which would justify the
classification. We have earlier noticed the elaborate reasons
given by Mr. Subramanium to show that the dance performed in the
banned establishments itself takes a form of sexual
propositioning. There is revenue sharing generated by the tips
received by the dancers. He had also emphasised that in the
banned establishment women, who dance are not professional
dancers. They are mostly trafficked into dancing. Dancing,
according to him, is chosen as a profession of last resort, when
the girl is left with no other option. On the other hand, dancers
performing in the exempted classes are highly acclaimed and
established performer. They are economically independent.
Such performers are not vulnerable and, therefore, there
is least likelihood of any indecency, immorality or depravity. He
had emphasised that classification to be valid under Article 14
need not necessarily fall within an exact or scientific formula
for exclusion or inclusion of persons or things. [See: Welfare
Association, A.R.P., Maharashtra (supra)] There are no
requirements of mathematical exactness or applying doctrinaire
tests for determining the validity as long as it is not palpably
arbitrary. (See: Shashikant Laxman Kale & Anr. (supra)).
97. We have no hesitation in accepting the aforesaid proposition for
testing the reasonableness of the classification. However, such
classification has to be evaluated by taking into account the
objects and reasons of the impugned legislation; (See: Ram Krishna
Dalmia’s case supra). In the present case, judging the distinction
between the two sections upon the aforesaid criteria cannot be
justified.
98. Section 33(a)(i) prohibits holding of a performance of dance, of
any kind or type, in any eating house, permit room or beer bar.
This is a complete embargo on performance of dances in the
establishment covered under Section 33(a)(i). Section 33(a)
contains a non-obstante clause which makes the section stand alone
and absolutely independent of the act and the rules. Section
33(a)(ii) makes it a criminal offence to hold a dance performance
in contravention of sub-section(i). On
conviction, offender is liable to punishment for 3 years,
although, the Court may impose a lesser punishment of 3 months and
fine, after recording special reasons for the same. We are in
agreement with the submission of Dr. Dhawan that it is a
particularly harsh provision. On the other hand, the
establishments covered under Section 33B enjoy complete exemption
from any such restrictions. The dance performances are permitted
provided the establishments comply with the applicable statutory
provisions, Bye-Laws, Rules and Regulations. The classification
of the establishments covered under Sections 33A and 33B would not
satisfy the test of equality laid down in the case of State of
Jammu and Kashmir Vs. Shri Triloki Nath Khosa & Ors.[42], wherein
it was observed as under:
“Classification, therefore, must be truly founded on substantial
differences which distinguish persons grouped together from
those left out of the group and such differential attributes
must bear a just and rational relation to the object sought to
be achieved.”
99. Further, this Court in E.V. Chinnaiah Vs. State of A.P. & Ors.[43]
held that:
“Legal constitutional policy adumbrated in a statute must answer
the test of Article 14 of the Constitution of India.
Classification whether permissible or not must be judged on the
touchstone of the object sought to be achieved.”
100. Learned senior counsel for the appellants have sought to justify
the distinction between two establishments, first of all as
noticed earlier, on the basis of type of dance. It was emphasised
that the dance performed in the prohibited establishments, itself
takes a form of sexual propositioning. It was submitted that it
is not only just the type of dance performed but the surrounding
circumstances which have been taken into consideration in making
the distinction. The distinction is sought to be made under
different heads which we shall consider seriatim. It is emphasised
that in the banned establishments, the proximity between the
dancing platform and the audience is larger than at the banned
establishments. An assumption is sought to be made from this that
there would hardly be any access to the dancers in
the exempted establishments as opposed to the
easy access in the banned or prohibited establishments. Another
justification given is that the type of crowd that visits the
banned establishments is also different from the crowd that visits
the exempted establishments. In our opinion, all the aforesaid
reasons are neither supported by any empirical data nor common
sense. In fact, they would be within the realm of “myth” based on
stereotype images. We agree with the submission made by the
learned counsel for the appellant, Mr. Mukul Rohtagi and Dr.
Dhawan that the distinction is made on the grounds of “classes of
establishments” or “classes of persons, who frequent the
establishment.” and not on the form of dance. We
also agree with the submission of the learned senior counsel for
the respondents that there is no justification that a dance
permitted in exempted institutions under Section 33B, if
permitted in the banned establishment, would be derogatory,
exploitative or corrupting of public morality. We are of the firm
opinion that a distinction, the foundation of which is classes of
the establishments and classes/kind of persons, who frequent the
establishment and those who own the establishments can not be
supported under the constitutional philosophy so clearly stated in
the Preamble of the Constitution of India and the individual
Articles prohibiting discrimination on the basis of caste, colour,
creed, religion or gender. The Preamble of the Constitution of
India as also Articles 14 to 21, as rightly observed in the
Constitutional Bench Judgment of this Court in I.R. Coelho
(supra), form the heart and soul of the Constitution. Taking away
of these rights of equality by any legislation would require clear
proof of the justification for such abridgment. Once the
respondents had given prima facie proof of the arbitrary
classification of the establishments under Sections 33A and 33B,
it was duty of the State to justify the reasonableness of the
classification. This conclusion of ours is fortified by the
observations in M/s. Laxmi Khandsari (supra), therein
this Court observed as follow:
“14. We, therefore, fully agree with the contention advanced by
the petitioners that where there is a clear violation of Article
19(1)(g), the State has to justify by acceptable evidence,
inevitable consequences or sufficient materials that the
restriction, whether partial or complete, is in public interest
and contains the quality of reasonableness. This proposition has
not been disputed by the counsel for the respondents, who have,
however, submitted that from the circumstances and materials
produced by them the onus of proving that the restrictions are
in public interest and are reasonable has been amply discharged
by them.”
101. In our opinion, the appellants herein have failed to satisfy the
aforesaid test laid down by this court. The Counsel for the
appellant had, however, sought to highlight before us the
unhealthy practice of the customers showering money on the dancers
during the performance, in the prohibited establishments. This
encourages the girls to indulge in unhealthy competition to create
and sustain sexual interest of the most favoured customers. But
such kind of behaviour is absent when the dancers are performing
in the exempted establishments. It was again emphasised that it is
not only the activities performed in the establishments covered
under Section 33 A, but also the surrounding circumstances which
are calculated to produce an illusion of easy access to women. The
customers who would be inebriated would pay little heed to the
dignity or lack of consent of the women. This conclusion is
sought to be supported by a number of complaints received and as
well as case histories of girl children rescued from the dance
bars. We are again not satisfied that the conclusions reached by
the state are based on any rational criteria. We fail to see how
exactly the same dances can be said to be morally acceptable in
the exempted establishments and
lead to depravity if performed in the
prohibited establishments. Rather it is evident that the same
dancer can perform the same dance in the high class hotels, clubs,
and gymkhanas but is prohibited of doing so in the establishments
covered under Section 33A. We see no rationale which would justify
the conclusion that a dance that leads to depravity in one place
would get converted to an acceptable performance by a mere change
of venue. The discriminatory attitude of the state is
illustrated by the fact that an infringement of section 33A(1) by
an establishment covered under the aforesaid provision would
entail the owner being liable to be imprisoned for three years by
virtue of section 33A(2). On the other hand, no such punishment is
prescribed for establishments covered under Section 33B. Such an
establishment would merely lose the licence. Such blatant
discrimination cannot possibly be justified on the criteria of
reasonable classification under Article 14 of the Constitution
of India. Mr. Subramaniam had placed strong reliance on the
observations made by the Court in the State of Uttar Pradesh Vs.
Kaushailiya & Ors. (supra), wherein it was observed as follows:
“7. The next question is whether the policy so disclosed offends
Article 14 of the Constitution. It has been well settled that
Article 14 does not prohibit reasonable classification for the
purpose of legislation and that a law would not be held to
infringe Article 14 of the Constitution if the classification is
founded on an intelligible differentia and the said differentia
has a rational relation to the object sought to be achieved by
the said law. The differences between a woman who is a
prostitute and one who is not certainly justify their being
placed in different classes. So too, there are obvious
differences between a prostitute who is a public nuisance and
one who is not. A prostitute who carries on her trade on the sly
or in the unfrequented part of the town or in a town with a
sparse population may not so dangerous to public health or
morals as a prostitute who lives in a busy locality or in an
over-crowded town or in a place within the easy reach of public
institutions like religious and educational institutions. Though
both sell their bodies, the latter is far more dangerous to the
public, particularly to the younger generation during the
emotional stage of their life. Their freedom of uncontrolled
movement in a crowded locality or in the vicinity of public
institutions not only helps to demoralise the public morals,
but, what is worse, to spread diseases not only affecting the
present generation, but also the future ones. Such trade in
public may also lead to scandals and unseemly broils. There are,
therefore, pronounced and real differences between a woman who
is a prostitute and one who is not, and between a prostitute,
who does not demand in public interests any restrictions on her
movements and a prostitute, whose actions in public places call
for the imposition of restrictions on her movements and even
deporation. The object of the Act, as has already been noticed,
is not only to suppress immoral traffic in women and girls, but
also to improve public morals by removing prostitute from busy
public places in the vicinity of religious and educational
institutions. The differences between these two classes of
prostitutes have a rational relation to the object sought to be
achieved by the Act.”
102. We fail to see how any of the above observations are of relevance
in present context. The so called distinction is based purely
on the basis of the class of the performer and the so called
superior class of audience. Our judicial conscience would not
permit us to presume that the class to which an individual or the
audience belongs brings with him as a necessary
concomitant a particular kind of morality or decency. We are
unable to accept the presumption which runs through Sections
33A and 33B that the enjoyment of same kind of entertainment by
the upper classes leads only to mere enjoyment and in the case of
poor classes; it would lead to immorality, decadence and
depravity. Morality and depravity cannot be pigeon-holed
by degrees depending upon the classes of the audience. The
aforesaid presumption is also perplexing on the ground that in the
banned establishments even a non-obscene dance would be treated as
vulgar. On the other hand, it would be presumed that in the
exempted establishments any dance is non-obscene. The underlying
presumption at once puts the prohibited establishments in a
precarious position, in comparison to the exempted class for the
grant of a licence to hold a dance performance. Yet at the same
time, both kinds of establishments are to be granted licenses and
regulated by the same restrictions, regulations and standing
provisions.
103. We, therefore, decline to accept the submission of Mr.
Subramaniam that the same kind of dances performed in the exempted
establishments would not bring about sexual arousal
in male audience as opposed to the male audience frequenting the
banned establishments meant for the lower classes having lesser
income at their disposal. In our opinion, the presumption is
elitist, which cannot be countenanced under the egalitarian
philosophy of our Constitution. Our Constitution makers have taken
pains to ensure that equality of treatment in all spheres is given
to all citizens of this country irrespective of their station in
life. {See: Charanjit Lal Chowdhury Vs. Union of India & Ors.
(supra), Ram Krishna Dalmia’s case (supra) and State of Uttar
Pradesh Vs. Kaushailiya & Ors. (supra)}. In our opinion, sections
33A and 33B introduce an invidious discrimination which cannot be
justified under Article 14 of the Constitution.
104. The High Court, in our opinion, has rightly declined to rely upon
the Prayas and Shubhada Chaukar’s report. The number of
respondents interviewed was so miniscule as to render both the
studies meaningless. As noticed earlier, the subsequent report
submitted by SNDT University has substantially contradicted the
conclusions reached by the other two reports. The situation herein
was not similar to the circumstances which led to the decision in
the case of Radice (supra). In that case, a New York Statute was
challenged as it prohibited employment of women in restaurants in
cities of first and second class between hours of 10 p.m. and 6
a.m., on the ground of (1) due process clause, by depriving the
employer and employee of their liberty to contract, and (2) the
equal protection clause by an unreasonable and arbitrary
classification. The Court upheld the legislation on the first
ground that the State had come to the conclusion that night work
prohibited, so injuriously threatens to impair women’s peculiar
and natural functions. Such work, according to the State, exposes
women to the dangers and menaces incidental to night life in large
cities. Therefore, it was permissible to enable the police to
preserve and promote the public health and welfare. The aforesaid
conclusion was, however, based on one very important factor which
was that “the legislature had before it a mass of information from
which it concluded that night work is substantially and especially
detrimental to the health of women.” In our opinion, as pointed
out by the learned counsel for the respondents, in the present
case, there was little or no material on the basis of which the
State could have concluded that dancing in the prohibited
establishments was likely to deprave, corrupt or injure the public
morality or morals.
105. The next justification for the so called intelligible differentia
is on the ground that women who perform in the banned
establishment are a vulnerable lot. They come from grossly
deprived backgrounds. According to the appellants, most of them
are trafficked into bar dancing. We are unable to accept the
aforesaid submission. A perusal of the Objects and the Reasons
would show that the impugned legislation proceed on a hypothesis
that different dance bars are being used as meeting points of
criminals and pick up points of the girls. But the Objects and
Reasons say nothing about any evidence having been presented to
the Government that these dance bars are actively involved in
trafficking of women. In fact, this plea with regard to
trafficking of women was projected for the first time in the
affidavit filed before the High Court. The aforesaid plea seems
to have been raised only on the basis of the reports which were
submitted after the ban was imposed. We have earlier noticed the
extracts from the various reports. In our opinion, such isolated
examples would not be sufficient to establish the connection of
the dance bars covered under section 33A with trafficking. We,
therefore, reject the submission of the appellants that the ban
has been placed for the protection of the vulnerable women.
106. The next justification given by the learned counsel for the
appellants is on the basis of degree of harm which is
being caused to the atmosphere in the banned establishments and
the surrounding areas. Undoubtedly as held by this Court in the
Ram Krishna Dalmia’s case (supra), the Legislature is free to
recognize the degrees of harm and may confine its restrictions to
those cases where the need is deemed to be clearest. We also agree
with the observations of the U.S. Court in Joseph Patsone’s case
(supra) that the state may direct its law against what it deems
the evil as it actually exists without covering the whole field of
possible abuses, but such conclusion have to be reached either on
the basis of general consensus shared by the majority of the
population or on the basis of empirical data. In our opinion, the
State neither had the empirical data to conclude that
dancing in the prohibited establishment necessarily leads to
depravity and corruption of public morals nor was there general
consensus that such was the situation. The three reports
presented before the High Court in fact have presented divergent
view points. Thus, the observations made in the case of Joseph
Patsone (supra) are not of any help to the appellant. We are also
conscious of the observations made by this court in case of Mohd.
Hanif Quareshi (supra), wherein it was held that there is a
presumption that the legislature understands and appreciates the
needs of its people and that its laws are directed to problems
made manifest by experience and that its discriminations are based
on adequate grounds. In the present case, the appellant has failed
to give any details of any experience which would justify such
blatant discrimination, based purely on the class or location of
an establishment.
107. We are of the opinion that the State has failed to justify the
classification between the exempted establishments and prohibited
establishments on the basis of surrounding circumstances; or
vulnerability. Undoubtedly, the legislature is the best judge to
measure the degree of harm and make reasonable classification but
when such a classification is challenged the State is duty bound
to disclose the reasons for the ostensible conclusions. In our
opinion, in the present case, the legislation is based on an
unacceptable presumption that the so called elite i.e. rich and
the famous would have higher standards of decency, morality or
strength of character than their counter parts who have to content
themselves with lesser facilities of inferior quality in the dance
bars. Such a presumption is abhorrent to the resolve in the
Preamble of the Constitution to secure the citizens of India.
“Equality of status and opportunity and dignity of the
individual”. The State Government presumed that the performance of
an identical dance item in the establishments having facilities
less than 3 stars would be derogative to the dignity
of women and would be likely to deprave, corrupt or injure public
morality or morals; but would not be so in the exempted
establishments. These are misconceived motions of a bygone era
which ought not to be resurrected.
108. Incongruously, the State does not find it to be indecent,
immoral or derogatory to the dignity of women if they take up
other positions in the same establishments such as receptionist,
waitress or bar tender. The women that serve liquor and beer to
customers do not arouse lust in customers but women dancing would
arouse lust. In our opinion, if certain kind of dance is sensuous
in nature and if it causes sexual arousal in men it cannot be said
to be more in the prohibited establishments and less in the
exempted establishments. Sexual arousal and lust in men and women
and degree thereof, cannot be said to be monopolized by the upper
or the lower classes. Nor can it be presumed that sexual arousal
would generate different character of behaviour, depending on the
social strata of the audience. History is replete with examples of
crimes of lust committed in the highest echelons of the society as
well as in the lowest levels of society. The High Court has
rightly observed, relying on the observations of this Court in
Gaurav Jain Vs. Union of India[44], that “prostitution in 5 star
hotels is a licence given to a person from higher echelon”. In
our opinion, the activities which are obscene or which are likely
to deprave and corrupt those whose minds are open to such immoral
influences, cannot be distinguished on the basis as to whether
they are performing in 5 star hotels or in dance bars. The
judicial conscience of this Court would not give credence to a
notion that high morals and decent behaviour is the exclusive
domain of the upper classes; whereas vulgarity and depravity is
limited to the lower classes. Any classification made on the
basis of such invidious presumption is liable to be struck down
being wholly unconstitutional and particularly contrary to Article
14 of the Constitution of India.
Is the impugned legislation ultra vires Article 19(1)(g) –
109. It was submitted by the learned counsel for the appellants
that by prohibiting dancing under Section 33A, no right of the bar
owners for carrying on a business/profession is being
infringed [See: Fertilizer Corporation Kamgar Union (Regd.),
Sindri & Ors. (supra)]. The curbs are imposed by Section 33A and
33B only to restrict the owners in the prohibited establishments
from permitting dance to be conducted in the interest of general
public. Since the dances conducted in establishments covered under
Section 33A were obscene, they would fall in the category of res
extra commercium and would not be protected by the fundamental
right under Article 19(1)(g). The submission is also sought to be
supported by placing a reliance on the reports of Prayas and
Subhada Chaukar. The restriction is also placed to curb
exploitation of the vulnerability of the young girls who come from
poverty stricken background and are prone to trafficking. In
support of the submission, the learned counsel relied on a number
of judgments of this Court as well as the American Courts,
including Municipal Corporation of the City of Ahmedabad (supra),
wherein it was held that the expression “in the interest of
general public” under Article 19(6) inter alia includes protecting
morality. The relationship between law and morality has been the
subject of jurisprudential discourse for centuries. The questions
such as: Is the development of law influenced by morals? Does
morality always define the justness of the law? Can law be
questioned on grounds of morality? and above all, Can morality be
enforced through law?, have been subject matter of many
jurisprudential studies for over at least a century and half. But
no reference has been made to any such studies by any of the
learned senior counsel. Therefore, we shall not dwell on the same.
110. Upon analyzing the entire fact situation, the High Court has held
that dancing would be a fundamental right and cannot be excluded
by dubbing the same as res extra commercium. The State has failed
to establish that the restriction is reasonable or that it is in
the interest of general public. The High Court rightly scrutinized
the impugned legislation in the light of observations of this
Court made in Narendra Kumar (supra), wherein it was held that
greater the restriction, the more the need for scrutiny. The High
Court noticed that in the guise of regulation, the legislation has
imposed a total ban on dancing in the establishments covered under
Section 33A. The High Court has also concluded that the
legislation has failed to satisfy the doctrine of direct and
inevitable effect [See: Maneka Gandhi’s case (supra)]. We see no
reason to differ with the conclusions recorded by the High Court.
We agree with Mr. Rohatgi and Dr. Dhawan that there are already
sufficient rules and regulations and legislation in place which,
if efficiently applied, would control if not eradicate all the
dangers to the society enumerated in the Preamble and Objects and
Reasons of the impugned legislation.
111. The activities of the eating houses, permit rooms and beer bars
are controlled by the following regulations:
A. Bombay Municipal Corporation Act.
B. Bombay Police Act, 1951.
C. Bombay Prohibition Act, 1949.
D. Rules for Licensing and Controlling Places of Public
Entertainment, 1953.
E. Rules for Licensing and controlling Places of Public
Amusement other that Cinemas.
F. And other orders are passed by the Government from time
to time.
112. The Restaurants/Dance Bar owners also have to obtain
licenses/permissions as listed below:
i. Licence and Registration for eating house under the
Bombay Police Act, 1951.
ii. License under the Bombay Shops and Establishment Act,
1948 and the Rules thereunder.
iii. Eating House license under Sections 394, 412A, 313 of the
Bombay Municipal Corporation Act, 1888.
iv. Health License under the Maharashtra Prevention of Food
Adulteration Rules, 1962.
v. Health License under the Mumbai Municipal Corporation
Act, 1888 for serving liquor;
vi. Performance License under Rules 118 of the Amusement
Rules, 1960 ;
vii. Premises license under Rules 109 of the amusement Rules;
viii. License to keep a place of Public Entertainment
under Section 33(1), clause (w) and (y) of the Bombay
Police Act, 1951 and the said Entertainment Rules;
ix. FL III License under the Bombay Prohibition Act, 1949 and
the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or
a Form “E” license under the Special Permits & Licenses
Rules for selling or serving IMFL & Beer.
x. Suitability certificate under the Amusement Rules.
113. Before any of the licenses are granted, the applicant has to
fulfil the following conditions :
(i) Any application for premises license shall accompanied by
the site-plan indicating inter-alia the distance of the
site from any religious, educational institution or
hospital.
(ii) The distance between the proposed place of amusement and
the religious place or hospital or educational
institution shall be more than 75 metres.
(iii) The proposed place of amusement shall not have been
located in the congested and thickly populated area.
(iv) The proposed site must be located on a road having width
of more than 10 metres.
(v) The owners/partners of the proposed place of amusement
must not have been arrested or detained for anti-social
or any such activities or convicted for any such
offenses.
(vi) The distance between two machines which are to be
installed in the video parlour shall be reflected in the
plan.
(vii) No similar place of public amusement exists within
a radius of 75 metres.
(b) The conditions mentioned in the license shall be
observed throughout the period for which the license is
granted and if there is a breach of any one of the
conditions, the license is likely to be cancelled after
following the usual procedure.
114. The aforesaid list, enactments and regulations are further
supplemented with regulations protecting the dignity of women. The
provisions of Bombay Police Act, 1951 and more particularly
Section 33(1)(w) of the said Act empowers the Licensing Authority
to frame Rules ‘”licensing or controlling places of public
amusement or entertainment and also for taking necessary steps to
prevent inconvenience to residents or passers-by or for
maintaining public safety and for taking necessary steps in the
interests of public order, decency and morality.”
115. Rules 122 and 123 of the Amusement Rules, 1960 also prescribe
conditions for holding performances.
“Rule 122 – Acts prohibited by the holder of a Performance
Licence : No person holding a performance Licence under these
Rules shall, in the beginning, during any interval or at the end
of any performance, or during the course of any performance,
exhibition, production, display or staging, permit or himself
commit on the stage or any part of the auditorium :-
(a) any profanity or impropriety of language ;
(b) any indecency of dress, dance, movement or gesture;
Similar conditions and restrictions are also prescribed under
the Performance Licence :
“The Licensee shall not, at any time before, during the course
of or subsequent to any performance, exhibition, production,
display or staging, permit or himself commit on the stage or in
any part of the auditorium or outside it :
(i) any exhibition or advertisement whether by way of
posters or in the newspapers, photographs of nude or
scantily dressed women;
(ii) any performance at a place other than the place
provided for the purpose;
(iii) any mixing of the cabaret performers with the
audience or any physical contact by touch or otherwise with
any member of the audience;
(iv) any act specifically prohibited by the rules.”
116. The Rules under the Bombay Police Act, 1951 have been framed in
the interest of public safety and social welfare and to safeguard
the dignity of women as well as prevent exploitation of women.
There is no material placed on record by the State to show that it
was not possible to deal with the situation within the framework
of the existing laws except for the unfounded conclusions recorded
in the Preamble as well the Objects and Reasons. [See: State of
Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra)], wherein
it is held that the standard of judging reasonability of
restriction or restrictions amounting to prohibition remains the
same, except that a total prohibition must also satisfy the test
that a lesser alternative would be inadequate]. The Regulations
framed under Section 33(w) of the Bombay Police Act, more so
Regulations 238 and 242 provide that the licensing authority may
suspend or cancel a licence for any breach of the license
conditions. Regulation 241 empowers the licensing authority or any
authorised Police Officer, not below the rank of Sub Inspector, to
direct the stoppage of any performance forthwith if the
performance is found to be objectionable. Section 162 of the
Bombay Police Act empowers a Competent Authority/Police
Commissioner/District Magistrate to suspend or revoke a license
for breach of its conditions. Thus, sufficient power is vested
with the Licensing Authority to safeguard any perceived violation
of the dignity of women through obscene dances.
117. From the objects of the impugned legislation and amendment itself,
it is crystal clear that the legislation was brought about on the
admission of the police that it is unable to effectively control
the situation in spite of the existence of all the necessary
legislation, rules and regulations. One of the submissions made
on behalf of the appellants was to the effect that it is possible
to control the performances which are conducted in the
establishments fall within Section 33B; the reasons advanced for
the aforesaid only highlight the stereotype myths that people in
upper strata of society behave in orderly and moralistic manner.
There is no independent empirical material to show that propensity
of immorality or depravity would be any less in these high class
establishments. On the other hand, it is the specific submission
of the appellants that the activities conducted within the
establishments covered under Section 33A have the effect of
vitiating the atmosphere not only within the establishments but
also in the surrounding locality. According to the learned counsel
for the appellants, during dance in the bars dancers wore
deliberately provocative dresses. The dance becomes even more
provocative and sensual when such behaviour is mixed with alcohol.
It has the tendency to lead to undesirable results. Reliance was
placed upon State of Bombay Vs. R.M.D. Chamarbaugwala & Anr.
(supra), Khoday Distilleries Ltd. & Ors. Vs. State of Karnataka &
Ors. (supra), State of Punjab & Anr. Vs. Devans Modern Breweries
Ltd. & Anr. (supra), New York State Liquor Authority Vs. Dennis
BELLANCA, DBA The Main Event, Et Al.(supra), Regina Vs. Bloom
(supra) to substantiate the aforesaid submissions. Therefore,
looking at the degree of harm caused by such behaviour, the State
enacted the impugned legislation.
118. We are undoubtedly bound by the principles enunciated by this
Court in the aforesaid cases, but these are not applicable to the
facts and circumstances of the present case. In Khoday
Distilleries Ltd. (supra), it was held that there is no
fundamental right inter alia to do trafficking in women or in
slaves or to carry on business of exhibiting and publishing
pornographic or obscene films and literature. This case is
distinguishable because the unfounded presumption that women are
being/were trafficked in the bars. The case of State of Punjab &
Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with
liquor trade, whereas the present case is clearly different. The
reliance on New York State Liquor Authority (supra) is completely
unfounded because in that case endeavour of the State was directed
towards prohibiting topless dancing in an establishment licensed
to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with
indecent performances in a disorderly house. Hence, this case will
also not help the appellants. Therefore, we are not impressed with
any of these submissions. All the activities mentioned above can
be controlled under the existing regulations.
119. We do not agree with the submission of Mr.
Subramanium that the impugned enactment is a form of additional
regulation, as it was felt that the existing system of licence and
permits were insufficient to deal with problem of ever increasing
dance bars. We also do not agree with the submissions that whereas
exempted establishments are held to standards higher than those
prescribed; the eating houses, permit rooms and dance bars operate
beyond/below the control of the regulations. Another justification
given is that though it may be possible to regulate these permit
rooms and dance bars which are located within Mumbai, it would not
be possible to regulate such establishments in the semi-urban and
rural parts of the Maharashtra. If that is so, it is a sad
reflection on the efficiency of the Licensing/Regulatory
Authorities in implementing the legislation.
120. The end result of the prohibition of any form of dancing in the
establishments covered under Section 33A leads to the only
conclusion that these establishments have to shut down. This is
evident from the fact that since 2005, most if not all the dance
bar establishments have literally closed down. This has led to the
unemployment of over 75,000 women workers. It has been brought on
the record that many of them have been compelled to take up
prostitution out of necessity for maintenance of their families.
In our opinion, the impugned legislation has proved to be totally
counter productive and cannot be sustained being ultra vires
Article 19(1)(g).
121. We are also not able to agree with the submission of Mr.
Subramanium that the impugned legislation can still be protected
by reading down the provision. Undoubtedly, this Court in the case
of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)
(supra) upon taking notice of the previous precedents has held
that the legislature must be given freedom to do experimentations
in exercising its powers, provided it does not clearly and
flagrantly violate its constitutional limits, these observations
are of no avail to the appellants in view of the opinion expressed
by us earlier. It is not possible to read down the expression “any
kind or type” of dance by any person to mean dances which are
obscene and derogatory to the dignity of women. Such reading down
cannot be permitted so long as any kind of dance is permitted in
establishments covered under Section 33B.
122. We are also unable to accept the submission of Mr.
Subramanium that the provisions contained in Section 33A can be
declared constitutional by applying the doctrine of severability.
Even if Section 33B is declared unconstitutional, it would still
retain the provision contained in Section 33A which prohibits any
kind of dance by any person in the establishments covered under
Section 33A.
123. In our opinion, it would be more appropriate that the State
Government re-examines the recommendations made by the Committee
which had been constituted by the State Government comprising of a
Chairman of AHAR, Public and Police Officials and chaired by the
Principal Secretary (E.I.), Home Department. The Committee had
prepared a report and submitted the same to the State Government.
The State Government had in fact sent a communication dated 16th
July, 2004 to all District Judicial Magistrates and Police
Commissioner to amend the rules for exercising control on Hotel
Establishments presenting dance programmes. The suggestions made
for the amendment of the Regulations were as follows :
(1) Bar girls dancing in dance bars should not wear clothes
which expose the body and also there should be
restriction on such dancers wearing tight and provocative
clothes.
(2) There should be a railing of 3 ft. height adjacent to the
dance stage. There should be distance of 5 ft. between
the railing and seats for the customers. In respect of
dance bars who have secured licences earlier, provisions
mentioned above be made binding. It should be made
binding on dance bars seeking new licences to have
railing of 3 ft. height adjacent to the stage and leaving
a distance of 5 ft. between the railing and sitting
arrangement for customers.
(3) Area of dance floor should be minimum 10 x 12 ft. i.e.
120 sq. ft. and the area to be provided for such dancer
should be minimum of 15 sq. ft. so that more than 8
dancers cannot dance simultaneously on the stage having
area of 12- sq. ft.
(4) If the dancers are to be awarded, there should be a ban
on going near them or on showering money on them. Instead
it should be made binding to collect the said money in
the name of manager of the concerned dancer or to hand
over to the manager.
(5) Apart from the above, a register should be maintained in
the dance bar to take entries of names of the girls
dancing in the bar every day. Similarly, holders of the
establishment should gather information such a name,
address, photograph and citizenship and other necessary
information of the dance girls. Holder of the
establishment should be made responsible to verify the
information furnished by the dance girls. Also above
conditions should be incorporated in the licences being
granted.
124. Despite the directions made by the State Government, the
authorities have not taken steps to implement the recommendations
which have been submitted by AHAR. On the contrary, the impugned
legislation was enacted in 2005. In our opinion, it would be more
appropriate to bring about measures which should ensure the safety
and improve the working conditions of the persons working as bar
girls. In similar circumstances, this Court in the case of Anuj
Garg (supra) had made certain observations indicating that instead
of putting curbs on women’s freedom, empowerment would be more
tenable and socially wise approach. This empowerment should
reflect in the law enforcement strategies of the State as well as
law modeling done in this behalf. In our opinion, in the present
case, the restrictions in the nature of prohibition cannot be said
to be reasonable, inasmuch as there could be several lesser
alternatives available which would have been adequate to ensure
safety of women than to completely prohibit dance. In fact, a
large number of imaginative alternative steps could be taken
instead of completely prohibiting dancing, if the real concern of
the State is the safety of women.
125. Keeping in view the aforesaid circumstances, we are not inclined
to interfere with the conclusions reached by the High Court.
Therefore, we find no merit in these appeals and the same are
accordingly dismissed.
126. All interim orders are hereby vacated.
…………………………CJI.
[Altamas Kabir]
…………………………….J.
[Surinder Singh Nijjar]
New Delhi;
July 16, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2705 OF 2006
1 State of Maharashtra & Anr. … Appellants
Vs.
2 Indian Hotel & Restaurants Assn.
3 & Ors. … Respondents
4 WITH
5
6 Civil Appeal No. 2704 of 2006
7 and
8 Civil Appeal No.5504 of 2013
9 [Arising out of S.L.P. (C) No. 14534 of 2006]
10
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Having had an opportunity of going through the masterly exposition of
the law in the crucible of facts relating to the violation of the
provisions of Articles 19(1)(a), 19(1)(g) and 21 of the Constitution read
with the relevant provisions of the Bombay Police Act, 1951, I wish to pen
down some of my thoughts vis-a-vis the problem arising in all these matters
requiring the balancing of equities under Articles 19(1)(g) and 21 of the
Constitution.
2. The expression “the cure is worse than the disease” comes to mind
immediately.
3. As will appear from the judgment of my learned Brother, Justice
Nijjar, the discontinuance of bar dancing in establishments below the rank
of three star establishments, has led to the closure of a large number of
establishments, which has resulted in loss of employment for about seventy-
five thousand women employed in the dance bars in various capacities. In
fact, as has also been commented upon by my learned Brother, many of these
unfortunate people were forced into prostitution merely to survive, as they
had no other means of survival.
4. Of course, the right to practise a trade or profession and the right
to life guaranteed under Article 21 are, by their very nature, intermingled
with each other, but in a situation like the present one, such right cannot
be equated with unrestricted freedom like a run-away horse. As has been
indicated by my learned Brother, at the very end of his judgment, it would
be better to treat the cause than to blame the effect and to completely
discontinue the livelihood of a large section of women, eking out an
existence by dancing in bars, who will be left to the mercy of other forms
of exploitation. The compulsion of physical needs has to be taken care of
while making any laws on the subject. Even a bar dancer has to satisfy her
hunger, provide expenses for her family and meet day to day expenses in
travelling from her residence to her place of work, which is sometimes even
as far as 20 to 25 kms. away. Although, it has been argued on behalf of
the State and its authorities that the bar dancers have taken to the
profession not as an extreme measure, but as a profession of choice, more
often than not, it is a Hobson's choice between starving and in resorting
to bar dancing. From the materials placed before us and the statistics
shown, it is apparent that many of the bar dancers have no other option as
they have no other skills, with which they could earn a living. Though
some of the women engaged in bar dancing may be doing so as a matter of
choice, not very many women would willingly resort to bar dancing as a
profession.
5. Women worldwide are becoming more and more assertive of their rights
and want to be free to make their own choices, which is not an entirely
uncommon or unreasonable approach. But it is necessary to work towards a
change in mindset of people in general not only by way of laws and other
forms of regulations, but also by way of providing suitable amenities for
those who want to get out of this trap and to either improve their existing
conditions or to begin a new life altogether. Whichever way one looks at
it, the matter requires the serious attention of the State and its
authorities, if the dignity of women, as a whole, and respect for them, is
to be restored. In that context, the directions given by my learned
Brother, Justice Nijjar, assume importance.
6. I fully endorse the suggestions made in paragraph 123 of the judgment
prepared by my learned Brother that, instead of generating unemployment, it
may be wiser for the State to look into ways and means in which reasonable
restrictions may be imposed on bar dancing, but without completely
prohibiting or stopping the same.
7. It is all very well to enact laws without making them effective. The
State has to provide alternative means of support and shelter to persons
engaged in such trades or professions, some of whom are trafficked from
different parts of the country and have nowhere to go or earn a living
after coming out of their unfortunate circumstances. A strong and
effective support system may provide a solution to the problem.
8. These words are in addition to and not in
derogation of the judgment delivered by my learned Brother.
...................CJI.
(ALTAMAS KABIR)
New Delhi
Dated: July 16, 2013.
-----------------------
[1] (1990) 4 SCC 366
[2] (2003) 9 SCC 358
[3] AIR 1964 SC 416
[4] AIR 1958 SC 538
[5] 232 U.S. 138 (1914)
[6] 234 U.S.224 (1913)
[7] 264 U.S. 292 (1924)
[8] AIR 1958 SC 731
[9] (1983) 1 SCC 51
[10] 413 U.S. 49 [1973]
[11] 1954 SCR 30
[12] AIR 2006 SC 212
[13] (1986) 3 SCC 20
[14] [1953] 4 SCR 290
[15] AIR 1957 SC 699
[16] (1995) 1 SCC 574
[17] (2004) 11 SCC 26
[18] 452 U.S. 714 (1981)
[19] 1961 3 W.L.R. 611
[20] AIR 1981 SC 344
[21] AIR 1952 SC 196
[22] (2003) 7 SCC 309
[23] (1998) 8 SCC 227
[24] (1995) 6 SCC 289
[25] AIR 1951 SC 41
[26] (1997) 2 SCC 453
[27] (2008) 4 SCC 720
[28] AIR 1962 SC 955
[29] (2007) 2 SCC 1
[30] (1962) 3 SCR 842
[31] (2008) 3 SCC 1
[32] (1995) 4 SCC 520
[33] (1981) 2 SCC 600
[34] (1960) 2 SCR 375
[35] (1970) 1 SCC 248
[36] (1978) 1 SCC 248
[37] (2001) 7 SCC 630
[38] (1983) 1 SCC 305
[39] (1983) 1 SCC 147
[40] (1989) 4 SCC 155
[41] AIR 1955 SC 191
[42] (1974) 1 SCC 19
[43] (2005) 1 SCC 394
[44] (1997) 8 SCC 114
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2705 OF 2006
State of Maharashtra & Anr. ...Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors. ...Respondents
WITH
CIVIL APPEAL NO.2704 OF 2006
State of Maharashtra & Ors. Etc. Etc. ..Appellants
VERSUS
Ramnath Vishnu Waringe Etc. Etc. ...Respondents
WITH
CIVIL APPEAL NO._5504_____ OF 2013
[Arising out of S.L.P. (C) No.14534 of 2006]
Ghar Hakka Jagruti Charitable Trust ...Appellant
VERSUS
State of Maharashtra & Ors. ...Respondents
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. Leave granted in SLP (C) No.14534 of 2006.
2. These civil appeals seek to challenge common judgment and final
order dated 12th April, 2006 in Writ Petition No.2450 of 2005,
W.P. No.2052 of 2005, W.P.No.2338 of 2005 and W.P.No.2587 of 2005
passed by the High Court of Judicature at Bombay,
whereby
Section 33A of the Bombay Police Act, 1951 as inserted by the Bombay Police (Amendment) Act, 2005 has been declared to be ultra vires Articles 14 and 19(1)(g) of the Constitution of India.
Summary of Facts –
3. Brief facts leading to the filing of the aforesaid writ petitions
are –
The Bombay Police Act, 1951 (hereinafter ‘the Act’) was enacted
in the year 1951 with the object of consolidating and amending the
law relating to the regulation of the exercise of powers and
performance of the functions by the State Government for maintenance
of public order.
Section 33 of the Act authorises the State
Government to frame rules regulating places of public amusement and
entertainment.
By virtue of Section 33 of the Act,
the “Rules for
Licensing and Controlling Places of Public Amusement (other than
Cinemas) and Performances for Public Amusement including Melas &
Tamashas, 1960” (hereinafter ‘the Rules’) were enacted to regulate
and maintain discipline in places of public amusement, melas etc.
4. In 1986, orchestra and dance in hotels was permitted to be
performed pursuant to the Rules and such institutions functioned
under terms and conditions laid down therein.
However, several
cases relating to violation of the terms and conditions of
performance licences came to be registered.
It is claimed that
20,196 cases were registered under Section 33(w), 110 and 117 of
the Act from the year 2000 till 2005.
Also, various cases of minor
girls being rescued from dance bars were reported during the said
period 2002-2005.
The appellants have referred to the case
histories from the Government Special Rehabilitation Centre for
Girls (Special Home) of 10 girl children rescued from such
establishments under Immoral Traffic (Prevention) Act, 1956 by
Mumbai Police, which according to the appellants, correctly depict
the prevailing situation.
The Government of Maharashtra, Home Department, on 10th
December, 2002 passed resolution No. REH 012002/153/SE-5, noting
therein :
"It has come to notice that prostitution rackets are being run
through pick up points in hotel establishments in which dance
programmes are being conducted (Dance Bars) and that dance forms
being presented therein are horrid and obscene and that
criminals are being sheltered in such hotels. Such undesirable
practices going on in hotel establishments have an adverse
effect on society."
It was resolved to form a committee to make suggestions for
amending the rules to deal with:
a) Remedial measures to check other undesirable practices
going on in hotel establishments presenting dance
programmes.
b) To prevent prostitution in hotel establishments
c) Remedial measures to see that criminals are not sheltered
in hotel establishments;
d) To frame a code specifying what type of dance forms
should be presented in hotel establishments.
e) Creating a roving squad to check undesirable practices in
hotel establishments and take strict action against owner
of those establishments.
5. Pursuant to the aforesaid resolution, the Committee submitted its
recommendations which were incorporated and circulated to all the
concerned authorities through the letter of the Home Department
No. REH 012002/153/SB-5 dated 16th July, 2004. In
this letter, the suggested regulations were summarized as follows:
a. There should be restrictions on the attire of the
dancers.
b. Dancing area must have a railing 3 feet high around it,
and customer seats should be at least 5 feet away from
the railing.
c. Dance floor to be of dimension of 10 x 12 ft so not more
than 8 dancers can dance simultaneously.
d. Customer rewards for dancing are to be routed through
management of the establishment and customers are banned
from going near the dancers or “showering money”.
e. Names of dancers are to be registered with the
establishment, a record kept of their employment,
including details of identity/citizenship and place of
residence.
6. This letter instructed all Judicial Magistrates and Police
Commissioners to implement these recommendations with immediate
effect.
7. On 6th August, 2004 the Chairperson of the Maharashtra State
Commission for Women wrote to the State Government about the
ongoing racketeering to lure girls to work in dance bars and their
consequent acts of prostitution and immoral trafficking stating:
“Number of rackets indulging into physical and financial
exploitation of girls working in dance bars by forcibly bringing
them into this profession are found to be increasing alarmingly.
In the metropolis of Mumbai, the problems of the bar girls have
acquired grave dimensions and have resulted even into death of
many bar girls. These women are forcibly induced into
prostitution leading to total destruction of their life.”….
Further
“Most of the girls working in Dance Bars of Maharashtra State do
not hail from State of Maharashtra, but come from other States.”
….
“In the future this problem in all the probability would spoil
our social health by acquiring increasingly grave dimensions,
not confined only to Mumbai but extending to the National and
even International levels.”
8. The letter went on to recommend a ban on such establishments by
stating:
“I therefore, request you that the system of issuing permits to
the Bar Girls by various departments of Government should be
stopped forthwith, thereby relieving the women from their
physical, sexual and financial exploitation in the future.”
9. According to the appellant, the seriousness of the issues involved
is well documented of which the Home Department was fully aware.
The material available before the Home Department was as under:
a. Copies of case history of 10 girl children rescued from
dance bar(s) under Immoral Traffic (Prevention) Act,
1956.
b. Copies of complaints of victims’ families against illicit
relations with bar dancers.
c. Copies of complaints of Social Organizations against
dance bars.
d. Copies of FIRs of cases registered in relation to dance
bars.
e. Summary of cases registered under the Immoral Traffic
(Prevention) Act, 1956, u/s 294 IPC, u/s 33(w) &
110 of Bombay Police Act, 1951 during the period 2000-
2005 regarding dance bars.
10. Apart from this, a study of the socio-economic situation and
rehabilitation needs of the women in dance bars was conducted by
PRAYAS (a field action project of the Tata Institute of Social
Sciences) in 2005.
This study pointed out the relevant facts
regarding exploitation of minor girls in dance bars.
The study
also pointed out that there was presence of the element of human
trafficking in the entire process; and that the environment of the
dance bars was found to have negative impact on the physical and
mental health of the minor girls.
The study also pointed out that
the atmosphere in the dance bars increased the vulnerability of
the minor children to sexual exploitation. It is also the case of
the appellants that independent of registration of offences under
Bombay Police Act and PITA Act as well as IPC, several complaints
had been received from various segments of society urging the
State Government to take steps for closure of the dance bars by
legislative action.
11. Taking into consideration the aforesaid material, the members of
the Maharashtra Legislative Assembly expressed deep concern over
the ill effects of dance bars on youth and dignity of women.
The
Assembly further felt that the existing measures were insufficient
to tackle the subject. Just at that time, a ‘Call Attention
Motion’ was tabled by Shri Vivek Patil in the State Legislative
Assembly on 30th March, 2005.
A detailed reply was given by Shri
R.R. Patil, Hon’ble Dy. Chief Minster to the same, on 21st July,
2005. Taking stock of the entire situation, the State Government
came to a tentative opinion that performance of dances in eating
houses, permit rooms or beer bars in an indecent manner is
derogatory to the dignity of women and is likely to deprave,
corrupt and/or injure public morality.
It was evident on the basis
of the material available to the Government that permit rooms or
beer bars licensed under the relevant rules, were indulging in
exploitation of women by permitting the performance of dances in
an indecent obscene or vulgar manner. The Government, therefore,
considered it expedient to prohibit such dance performances in
eating houses or permit rooms or beer bars.
12. It was emphasised that even prior to the aforesaid decision, the
attention of the Government had been invited to mushrooming growth
of illegal dance bars and their ill- effects on the society in
general, including ruining of some families.
The dance bars were
also used as meeting points by criminals and pick up joints of
girls indulging in immoral activities. Young girls desirous of
earning easy money were being attracted to such dance bars and
getting involved in immoral activities.
The decision was,
therefore, taken by the State Government to prohibit performance
of dance in eating houses or permit rooms or beer bars by suitably
amending the Bombay Police Act, 1951.
13. The State Government took a conscious decision upon consideration
of the various factors to add Sections 33A and 33B to the Bombay
Police Act.
The necessary amendment was introduced in Maharashtra
Legislative Assembly on 14th July, 2005.
The Bill was passed by
the Legislative Assembly on 21st July, 2005 and by
the Legislative Council on 23rd July, 2005.
The amended Act No. 35
of 2005, incorporating Sections 33A & 33B in the Bombay Police
Act, 1951, came into force after receiving the assent of the
Governor of the Maharashtra by publishing in the Maharashtra
Gazette on 14th August, 2005.
Writ Petitions before the High Court of Bombay
14. The Amendment to the Bombay Police Act of 1951, introducing
Sections 33A and 33B, was challenged as being unconstitutional in
several writ petitions before the High Court of Bombay, which are
tabulated as under:
|Writ Petition Number | Party |
|WP 2450/2005 |Indian Hotel and Restaurants Owners |
| |Association, an Association of various hotel |
| |owners and bar owners and/or conductors of the|
| |same, who carry on business of running |
| |restaurants and bars in Mumbai. |
|WP 2052/2005 |Bharatiya Bar Girls Union, a registered trade |
| |union claiming a membership of 5000, whose |
| |members work as bar girls in different parts |
| |of Maharashtra. |
|WP 2338/2005 |The Parties in this petition are a group of |
| |six petitioners, who are women’s organizations|
| |working in the field of women’s development. |
|WP 2587/2005 |The 1st petitioner is a trust registered under|
| |the Public Trust Act, working with sex workers|
| |in the Malvani area of Malad in Mumbai. The |
| |2nd petitioner is the Ekta Self Group which |
| |consists of 10 bar dancers. |
|WP 1971/2005 |The petitioner is the Association of Dance Bar|
|Criminal WP |owners duly registered under the Trade Unions |
| |Act, and have as their members 344 dance bars.|
|WP 6930-6931/2005 |Proprietors of two establishments who are |
| |affected by the amendments to the Police Act. |
|WP 5503-5504/2005 |Proprietors of two establishments who are |
| |affected by the amendments to the Police Act. |
It was contended:
• That the State of Maharashtra does not have the legislative
competence to enact the impugned law as 'morality' does not fall
within the ambit of List II of Schedule 7 and that the impugned
enactment falls in the concurrent list.
• That the impugned amendment was not reserved for the assent of the
President and therefore is unconstitutional under Article 254 of
the Constitution and also that the State does not have the power
to implement international conventions and hence this enactment
amounts to fraud on the Constitution.
• That the enactment results in interference with the independence of
judiciary as no reasons are provided under S. 33A(2) of the Act for
awarding lesser punishments.
• That the affidavit filed by Youraj Laxman Waghmare was not in
compliance with Order 19 Rule 3 of the Civil Procedure Code as no
verification clause was provided.
• That the establishment of the petitioners is a place of public
entertainment and public amusement as defined under S.
2(10) and 2(9) respectively and not an "eating place" under S.2(5A)
of the Bombay Prohibition Act, 1951 and hence the provisions do not
bind the petitioners.
• That S. 33A and 33B are arbitrary under Article 14 as they provide
for different standards of morality to institutions with similar
activities and that the activities in S. 33A establishments are
less obscene but nonetheless the classification bears no nexus to
the object of the Amendment.
• That S. 33A is violative of Article 15 on the basis of gender
discrimination as the dancers are mainly women.
• That there is violation of Article 19 (1)(a) as dance is a form of
expression and that the impugned enactment is an unreasonable
restriction and it is not by protected by Article 19(2).
• That there is an unreasonable restriction on right to freedom of
profession as the State Government permitted and granted licenses
for running such establishments being Res
Commercium and that it deprives the bar owners of their right to
carry on business and bar dancers the right to carry on their
profession.
• That right to life under Article 21 is infringed as right to life
includes right to livelihood and that the State has not provided
for any rehabilitation.
15. The State of Maharashtra defended the challenge to enactment as
follows:
• That the impugned enactment is covered by the List II. Entries 1-
Public Order, 2- Police, 6- Public Order, 8- Intoxicants,
33- Entertainment or Amusement, 64- Offences against
laws.
• That the 'eating houses' are covered in the impugned enactment as
they would fall in public entertainment places, as license is issued
to an eating house, which enjoys an additional facility to serve
liquor, wine and beer.
• That there is no violation of Article 19(1)(a) as the dance being
conducted is not an expression but a profession where restrictions
can be imposed.
• That there is no violation of Article 15 as the ban on obscene dance
applies to men and women.
• That the several minor girls danced to get rewarded with cash by
enticing customers, that led to a competition between performers
leading to greatest rewards reserved for the greatest indignities
which escalated prostitution which lead to registration of several
cases under Prevention of Immoral Trafficking Act and under Bombay
Police Act. That this led the legislatures to make an independent
classification of these establishments to safeguard the dignity of
women, and public morality. That there are only six exempted
establishments and that obscene performances are not permitted in
such exempted establishments. Hence there is no violation of Article
14.
• That with regard to Article 19(I) (g) there is no absolute right to
conduct trade or profession and that the same is subject to public
order, decency and morality and hence the restriction is reasonable
and justified.
• That there is no violation of Article 21 as special cell has been
constituted by Women and Child Welfare Department to train and
assist the "bar girls" in availing benefits of the various
Government Schemes for employment and providing alternative
dignified vocations.
16. After considering the aforesaid arguments of both the sides, the
High Court has, inter alia, held that the type of dancing in both
categories of establishments differs and while the difference is
not capable of precise legislative definition, it is sufficient to
constitute intelligible differentia. However, the fact of
different types of dancing being performed bears no nexus with the
object sought to be achieved, which, as understood by the Bombay
High Court, was limited to the exploitation of women dancers.
Consequently, the operation of the impugned enactment is
discriminatory.
17. With these observations, the High Court declared that Sections 33A
and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14
and 19(1)(g) of the Constitution of India.
18. We have heard the learned counsel for the parties at some length.
But before we notice the submissions at this stage it would be
appropriate to reproduce the provisions in Sections 33A and 33B of
the Bombay Police Act, 1951.
Sections 33A and 33B of the Bombay Police Act:
19. The provisions read as under:
“33A(1) Notwithstanding anything contained in this Act or the
rules made by the Commissioner of Police or the District
Magistrate under sub-section (1) of Section 33 for the area
under their respective charges, on and from the date of
commencement of the Bombay Police (Amendment) Act, 2005,-
(a) holding of a performance of dance, of any kind or type, in
any eating house, permit room or beer bar is prohibited;
(b) all performance licences, issued under the aforesaid rules
by the Commissioner of Police or the District Magistrate or any
other officer, as the case may be, being the Licensing
Authority, to hold a dance performance, of any kind or type, in
an eating house, performance, of any kind or type, in an eating
house, permit room or beer bar shall stand cancelled.
(2) Notwithstanding anything contained in Section 131, any
person who holds or causes or permits to be held a dance
performance of any kind or type, in an eating house, permit room
or beer bar in contravention of Sub-section (1) shall, on
conviction, be punished with imprisonment for a term which may
extend to three years and with fine which may extend to rupees
two lakhs:
Provided that, in the absence of special and adequate reasons to
the contrary to be mentioned in the judgment of the Court, such
imprisonment shall not be less than three months and fine shall
not be less than rupees fifty thousand.
(3) If it is, noticed by the Licensing Authority that any
person, whose performance licence has been cancelled under Sub-
section (1), holds or causes to be held or permits to hold a
dance performance of any kind or type in his eating house,
permit room or beer bar, the Licensing Authority shall,
notwithstanding anything contained in the rules framed under
section 33, suspend the Certificate of Registration as an eating
house and the licence to keep a Place of Public Entertainment
(PPEL) issued to a permit room or a beer bar and within a period
of 30 days from the date of suspension of the Certificate of
Registration and licence, after giving the licensee a reasonable
opportunity of being heard, either withdraw the order of
suspending the Certificate of Registration and the licence or
cancel the Certificate of Registration and the licence.
(4) ………………
(5)………………..
(6) The offence punishable under this section shall be
cognizable and non-bailable.
33B. Subject to the other provisions of this Act, or any other
law for the time being in force, nothing in section 33A shall
apply to the holding of a dance performance in a drama theatre,
cinema theatre and auditorium; or sports club or gymkhana, where
entry is restricted to its members only, or a three starred or
above hotel or in any other establishment or class of
establishments, which, having regard to (a) the tourism policy
of the Central or State Government for promoting the tourism
activities in the State; or (b) cultural activities, the State
Government may, by special or general order, specify in this
behalf.
Explanation.--For the purposes of this section, "sports club" or
"gymkhana" means an establishment registered as such under the
provisions of the Bombay Public Trusts Act, 1950, or the
Societies Registration Act, 1860 or the Companies Act, 1956, or
any other law for the time being in force.”
Statement of Objects and Reasons
20. The Statement of Objects and Reasons clause appended to Bill No.
LX of 2005 as introduced in the Maharashtra Legislative Assembly
on 14th June, 2005 reads as under:
(1) The Commissioner of Police, District Magistrates or other
officers, being Licensing Authorities under the Rules
framed in exercise of the powers of Sub-section (1) of
Section 33 of the Bombay Police Act, 1951 have granted
licences for holding dance performance in the area under
their respective charges in the State. The object of
granting such performance licence is to hold such dance
performance for public amusement. It is brought to the
notice of the State Government that the eating houses or
permit rooms or beer bars to whom licences to hold dance
performance, have been granted are permitting the
performance of dances in an indecent, obscene or vulgar
manner. It has also been brought to the notice of the
Government that such performance of dances are giving rise
to exploitation of women. The Government has received
several complaints regarding the manner of holding such
dance performances. The Government considers that the
performance of dances in eating houses, permit rooms or
beer bars in an indecent manner is derogatory to the
dignity of women and is likely to deprave, corrupt or
injure the public morality or morals. The Government
considers it expedient to prohibit the holding of such
dance performances in eating houses or permit rooms or beer
bars.
(2) In the last Budget Session of the State Legislature, by
way of a Calling Attention Motion, the attention of the
Government was invited to mushroom growth of illegal dance
bars and their ill-effects on the society in general
including ruining of families. The members of the State
Legislature, from ruling and opposition sides, pointed out
that such dance bars are used as meeting points by
criminals and pick-up joints of girls Page 1267 for
indulging in immoral activities and demanded that such
dance bars should, therefore, be closed down. These dance
bars are attracting young girls desirous of earning easy
money and thereby such girls are involved in immoral
activities. Having considered the complaints received from
general public including the peoples' representatives, the
Government considers it expedient to prohibit the
performance of dance, of any kind or type, in an eating
house or permit room or beer bar, throughout the State by
suitably amending the Bombay Police Act, 1951. However, a
provision is also made to the effect that holding of a
dance performance in a drama theatre or cinema theatre or
auditorium; registered sports club or gymkhana; or three
starred or above hotel; or in any other establishment or
class establishments which the State Government may specify
having regard to tourism policy for promotion of tourism in
the State or cultural activities, are not barred but all
such establishments shall be required to obtain performance
licence in accordance with the said rules, for holding a
dance performance.
3. The Bill is intended to achieve the following objectives.”
Preamble
“Whereas the Commissioners of Police, District Magistrates and
certain other Officers, have granted performance licences for
holding dance performance;
And whereas the object of granting such performance licences is
to hold such dance performance for public amusement;
And whereas it is brought to the notice of the State Government
that the eating houses, permit rooms or beer bars to whom
licences to hold a dance performance have been granted are
permitting performance of dances in an indecent, obscene or
vulgar manner;
And whereas it has also been brought to the notice of the
Government that such performance of dances are giving rise to
exploitation of women;
And whereas the Government has received several complaints
regarding the manner of holding of such dance performance;
And whereas the Government considers that such performance of
dances in eating houses, permit rooms or beer bars are
derogatory to the dignity of woken and are likely to deprave,
corrupt or injure the public morality or morals.
And whereas the Government considered it expedient to prohibit
such holding of performance of dances in eating houses, permit
rooms and beer bars.”
Legal Submissions:
21. Mr. Harish N. Salve, Mr. Gopal Subramanium and Mr.
Shekhar Naphade, learned senior counsel, have on different
occasions made submissions on behalf of the appellants. Mr. Gopal
Subramanium has supplemented the oral submissions by written
submissions. The common submissions are noted with the appellation
of learned senior counsel, referring to all the aforesaid learned
senior counsel.
22. Learned senior counsel have made submissions confined only to the
issue as to whether Sections 33A and 33B of the Bombay Police Act
infringe Article 14 and with regard to the provisions being ultra
vires Article 19(1)(g) of the Constitution as all the other issues
raised by the respondents were rejected by the High Court. The
High Court had specifically rejected the challenge to the vires of
the provisions under Article 15(1), 19(1)(a) and Article 21.
23. Learned counsel for the appellants submitted that the
classification made by the impugned enactment is based on
intelligible differentia, having a nexus with the object sought to
be achieved. It is submitted that the impugned order suffers from
flawed reasoning. The classification made between establishments
under Sections 33A and 33B is not solely on the basis of the
different kinds of dance performances but also on differing social
impact such establishments have, by virtue of having differing
dance performances and surrounding circumstances including the
customers. Therefore according to Mr. Gopal Subramanium, the
establishments must be understood in broader terms than is
understood by the High Court. According to Mr. Harish Salve and
Mr. Gopal Subramanium, the judgment of the High Court is too
restrictive.
24. It was emphasised by the learned senior counsel that the High
Court has failed to understand the distinction between the two
provisions and the object sought to be achieved. Mr.
Gopal Subramanium has listed the differences factored into the
classification made by the impugned enactment. According to the
learned senior counsel, the impugned enactment is based on
intelligible differentia which could be categorized under the
following broad heads:
(i) Type of dance; (ii) Form of remuneration; (iii) Demand for
vulnerable women; (iv) Degree of Harm; (v) Regulatory
feasibility.
25. It was submitted that in the banned establishments, the women who
dance are not professional dancers. In fact, they are majorly
trafficked into this profession or have taken this profession when
they had no other option. Further, the dance is vulgar and
obscene. Women are showered with money when they are dancing,
which does not happen in the exempted establishments. Learned
senior counsel further submitted that the classification based on
type of dance need not be scientifically perfect but ought not to
be palpably arbitrary. According to the learned senior counsel, in
the present case, it is not just that the type of dance performed
is different but the surrounding circumstances are also different.
In the exempted establishments, the distance between the dancing
platform and the audience is greater than at the banned
establishments. This, according to the learned senior counsel, is
sufficient to justify the classification between the exempted
establishments and the banned establishments. Therefore, it cannot
be said that the classification is palpably arbitrary. In support
of the submissions, the learned senior counsel relied on the
observations made by this Court in Shashikant Laxman Kale & Anr.
Vs. Union of India & Anr.[1] wherein this Court observed as
follows :-
“We must, therefore, look beyond the ostensible classification
and to the purpose of the law and apply the test of ‘palpable
arbitrariness’ in the context of the felt needs of the times and
societal exigencies informed by experience to determine
reasonableness of the classification.
26. Reliance was also placed Welfare Association, A.R.P., Maharashtra
& Anr. Vs. Ranjit P. Gohil & Ors.[2], wherein this Court observed
that:
“…………..It is difficult to expect the legislature carving out a
classification which may be scientifically perfect or logically
complete or which may satisfy the expectations of all concerned,
still the court would respect the classification dictated by the
wisdom of the legislature and shall interfere only on being
convinced that the classification would result in pronounced
inequality or palpable arbitrariness on the touchstone of
Article 14.”
27. With regard to the form of remuneration, learned senior counsel
submitted that remuneration to dancers in banned establishments is
generally made out of the money which is showered on them. This
creates an unhealthy competition between the dancers to attract
the attention of the customers. Therefore, each dancer tries to
outdo her competitors in terms of sexual suggestion through dance.
This, in turn, creates an unsafe atmosphere not just for the
dancers, but also for the other female employees of such
establishments.
28. Relying on the report by Shubhada Chaukhar, learned senior counsel
submitted that 84% of the bar dancers are from outside the State
of Maharashtra. These girls are lured into bar dancing on false
pretext. Supporting this submission, the following observations
are pointed out in the same report:
“Some unmarried girls have entered the world of bars just
because of its glamour. Not a few have come of their own free
will. Many less educated girls are attracted to a livelihood
that makes them quick money”.
29. On the basis of the aforesaid, learned senior counsel submitted
that the activities that are carried out in establishments covered
under Section 33A i.e. not just the dance itself but the
surrounding circumstances of the dance are calculated to raise the
illusion of access to women, irrespective of the consent or
dignity of women, in men who are often in an inebriated condition.
In this context, learned senior counsel relied on the case history
of girl children rescued from the dance bar(s) under Immoral
Traffic (Prevention) Act, 1956; complaints of victims family
against illicit relations with bar dancers; complaints of social
organizations against dance bars; copies of First Information
Reports of cases registered in relation to dance bars; summary of
cases registered under PITA Act, 1956, under Section 294 IPC,
under Section 33(w) & 110 of Bombay Police Act, 1951 during the
period 2000-2005 regarding dance bars.
30. It is submitted by the learned senior counsel for the appellants
that by comparison such complaints have been minimal in the case
of exempted establishments. The same kind of behaviour is not seen
as a norm. Learned senior counsel submitted that undesirable, anti
social and immoral traffic is directly relatable to certain kind
of dancing activities performed in prohibited establishments which
are not performed in exempted establishments. Therefore, there is
a rational distinction between the exempted establishments and the
prohibited establishments. In support of the submissions, reliance
was placed on the judgment of this Court in the case of State of
Uttar Pradesh Vs. Kaushailiya & Ors.[3], wherein the
constitutional validity of Immoral Traffic in Women and Girls Act,
1956 was called in question. This Court upheld the validity of the
classification between a prostitute who is a public nuisance and
one who is not.
31. Taking up the next head on which the classification has been
sought to be justified as intelligible differentia, i.e. “the
demand for vulnerable women,” learned senior counsel relied on
certain observations made by one Cathatine Mackinnon (1993) in an
article entitled “Prostitution and Civil Rights” which appeared in
Michigan Journal of Gender & Law, Volume I : 13-31. The
argument given by the author therein was that:
“If prostitution is a free choice, why are the women with the
fewest choices the ones most often found doing it?... The money
thus acts as a form of force, not as a measure of consent. It
acts like physical force does in rape.”
32. Taking cue from the aforesaid comments, learned senior counsel
submitted that the dancing that takes place in the banned
establishments has a similar effect on the psyche of the woman
involved, and functions within the same parameters of the
understanding of consent. It was emphasised that as a general
rule, dancing in a dance bar is not a profession of choice, but of
necessity, and consequently, there is a demand not for women of
means and options, but vulnerable women, who may not have families
and communities to turn to and are completely dependent on their
employers. In support of the aforesaid submissions, reliance was
placed upon Prayas and Shubhada Chaukar Reports.
33. It was submitted that the High Court erroneously ignored the
contents of the reports extracted above.
34. Now coming to the next head: “Justifying the classification on the
criterion of “Degree of Harm.” The appellants emphasised that the
characteristics of the dancing that is sought to be prohibited
have, to a greater degree than the activities that may be
comparable at first blush, created an atmosphere where physical
and emotional violence to women was both profitable and
normalized. It is, therefore, rational to classify these
establishments as a separate class based on the degree of harm
that they trigger. Support for this submission is sought from the
observations made by this Court in Ram Krishna Dalmia Vs. Justice
S.R. Tendolkar[4] wherein it was observed as follows:
“The decisions of this Court further establish – (d) that the
legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be
the clearest.”
35. Reliance was also placed on the observations made in the case of
Joseph Patsone Vs. Commonwealth of Pennsylvania[5]. This was a
case whereby an Act in Pennsylvania made it unlawful for
unnaturalised foreign born residents to kill wild game, except in
defence of person or property. The possession of shot guns and
rifles by such persons was made unlawful. The Act was challenged
as being unconstitutional under due process and equal protection
provisions of the 14th Amendment of the United States
Constitution. The Court upheld the Act as constitutional and
observed as follows:
"The discrimination undoubtedly presents a more difficult
question, but we start with the general consideration that a
State may classify with reference to the evil to be prevented,
and that if the class discriminated against is or reasonably
might be considered to define those from whom the evil mainly is
to be feared, it properly may be picked out. A lack of abstract
symmetry does not matter. The question is a practical one
dependent upon experience. The demand for symmetry ignores the
specific difference that experience is supposed to have shown to
mark the class. It is not enough to invalidate the law that
others may do the same thing and go unpunished, if as a matter
of fact, it is found that the danger is characteristic of the
class named. Lindsley v. Natural Carbonic Gas Co., 220 U.S.
61,80,81. The State ‘may direct its law against what it deems
the evil as it actually exists without covering the whole field
of possible abuses’…….. The question therefore narrows itself
to whether this court can say that legislature of Pennsylvania
was not warranted in assuming as its premise for the law that
resident unnaturalised aliens were the peculiar source of the
evil that it desired to prevent. Barrett v Indiana, 229 U.S. 26,
29.
Obviously the question so stated is one of local experience on
which this court ought to be very slow to declare that the stale
legislature was wrong in its facts. Adams v Milwaukee, 228 US.
572, 583. If we might trust popular speech in some states it was
right - but it is enough that this Court has no such knowledge
of local conditions as to be able to say that it was manifestly
wrong."
36. Reliance was also placed on the observations made in Keokee
Consolidated Coke Co. Vs. Taylor[6], which are as follows:
"It is more pressed that the act discriminates
unconstitutionally against certain classes. But while there are
differences of opinion as to the degree and kind of
discrimination permitted by the Fourteenth Amendment, it is
established by repeated decisions that a statute aimed at what
is deemed an evil, and hitting it presumably where experience
shows it to be most felt, is not to be upset by thinking up and
enumerating other instances to which it might have been applied
equally well, so far as the court can see. That is for the
legislature to judge unless the case is very clear."
37. The next judgment relied upon by the appellants is Radice Vs.
People of the State of New York[7], in which the New York Statute
was challenged, as it prohibited employment of women in
restaurants in cities of first and second class between hours of
10 p.m. and 6 a.m. The Court upheld the legislation in the
following words :
“Nor is the statute vulnerable to the objection that it
constitutes a denial of the equal protection of the laws. The
points urged under this head are (a) that the act discriminates
between cities of the first and second class and other cities
and communities; and (b) excludes from its operation women
employed in restaurants as singers and performers, attendants in
ladies' cloak rooms and parlors, as well as in lunch rooms or
restaurants conducted by employees solely for the benefit of
their employees.
The limitation of the legislative prohibition to cities of the
first and second class does not bring about an unreasonable and
arbitrary classification. Packard v Banton, ante, 140; Hayes v
Missouri, 120 U.S. 68. Nor is there substance in the contention
that the exclusion of restaurant employees of a special kind,
and of hotels and employees' lunch rooms renders the statute
obnoxious to the Constitution. The statute does not present a
case where some persons of a class are selected for special
restraint from which others of the same class are left free
(Connolly v Union Sewer Pipe Co., 184 U.S. 540, 564); but a case
where all in the same class of work are included in the
restraint. Of course, the mere fact of classification is not
enough to put a statute beyond reach of equality provision of
the Fourteenth Amendment. Such classification must not be
"purely arbitrary, oppressive or capricious". American Sugar
Refining Co. V Louisiana, 179 U.S. 89, 92. But the mere
production of inequality is not enough. Every selection of
persons for regulation so results, in some degree. The
inequality produced, order to counter the challenge of the
constitution must "actually and palpably unreasonable and
arbitrary." ……………………………………
The U.S. Court then relied upon the observations made in Joseph
Patsone’s case (supra), Keokee Consolidated Coke Co. case (supra)
which we have already noticed.
38. Further, learned counsel supported the submissions by relying upon
the case of Mohd. Hanif Quareshi Vs. State of Bihar[8], wherein
the court held as under:
"………The Courts, it is accepted, must presume that the
legislature understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on
adequate grounds. It must be borne in mind that the legislature
is free to recognize degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the
clearest and finally that in order to sustain the presumption of
Constitutionality the court may take into consideration matters
of common knowledge, matters of common report, the history of
the times and may assume every state of facts which can be
conceived existing at the time of legislation.”
39. On the basis of the aforesaid extracts, learned counsel submitted
that the classification between the exempted establishments and
prohibited establishment is also based on “Degree of Harm”. The
legislature is the best judge to measure the degree of harm and
make reasonable classification.
40. Coming to the next factor– Regulatory Feasibility, which,
according to the learned senior counsel, supports the validity of
the classification. It was submitted that the import of the
impugned enactment is not that, what is prohibited in
establishments under Section 33A is to be permitted in
establishments under Section 33B. It is submitted by the
appellants that the acts which are degrading, dehumanising and
facilitating of gender violence in society do not cease to be so
simply by virtue of it being made exclusively available to an
economically stronger sections of society. It is the submission of
the appellants that the State has already made extensive
regulatory provisions under various enactments. This relates to
the grant of nature of license, terms and conditions of such
licence, performance permits. All these regulatory measures are
with a view to cure social evils. The impugned enactment,
according to the appellants, is a form of an additional
regulation. It is justified on the ground that the existing system
of licenses and permits is not sufficient to deal with the problem
of ever increasing "dance bars". Relying on the observations made
by this Court in S.P. Mittal Vs. Union of India & Ors.[9] it was
submitted by the appellants that it is the prerogative of the
Government to decide if certain forms of regulation are
insufficient, to provide for additional regulation. Reliance was
also placed on the observations made in the case of Radice Vs.
People of the State of New York (supra) which are as under :-
"The basis of the first contention is that the statute unduly
and arbitrarily interferes with the liberty of two adult persons
to make a contract of employment for themselves. The answer of
the state is that night work of kind prohibited, so injuriously
threatens to impair their peculiar and natural functions, and so
exposes them to the dangers and menaces incident to night life
in large cities, that a statute prohibiting such work falls
within the police power of the state to preserve and promote the
public health and welfare.
The legislature had before it a mass of information from which
it concluded that night work is substantially and especially
detrimental to the health of women. We cannot say that the
conclusion is without warrant…… The injurious consequences were
thought by the legislature to bear more heavily against women
than men and considering their delicate organism, there would
seem to be good reason for so thinking. The fact, assuming it to
be such, properly may be made the basis of legislation
applicable only to women. Testimony was given upon the trial to
the effect that the night work in question was not harmful; but
we do not find it convincing. Where the constitutional validity
of a statute depends upon the existence of facts, courts must be
cautious about reaching a conclusion respecting them contrary to
that reached by the legislature; and if the question of what
facts establish be a fairly debatable one, it is not permissible
for the judge to set up his opinion in respect of it against the
opinion of the lawmaker. The state legislature here determined
that the night employment of the character specified, was
sufficiently detrimental to the health and welfare of women
engaging in it to justify its suppression; and, since we are
unable to say that the finding is clearly unfounded, we are
precluded from reviewing the legislative determination".
41. Relying on the aforesaid, it is submitted that exempted
establishments as understood by Section 33B are gymkhanas, three
starred or above hotels. In order to be considered three stars or
above establishments, such establishments have to meet greater
degrees of scrutiny, both from Government and from private
associations (hoteliers, reviewers etc). In fact, such
establishments generally maintain standards higher than the
standards expected of them under the regulation. Therefore, the
regulation of such establishments is significantly easier, as
opposed to the prohibited establishments. These establishments
function, according to the appellants, to a greater degree,
outside the constant scrutiny of the law. It is also pointed out
that it is significantly easier to police the exempted
establishments, which at present are six in number, than
attempting to police the much greater number of prohibited
establishments. It is also pointed out that in cases where an
exempted establishment is found carrying out activities prohibited
in S.33A, it is incumbent on the relevant authority to revoke the
permission for such acts. Therefore, it was submitted that the
significant difference in feasibility of regulation is another
basis for classifying prohibited establishments. The High Court,
according to the counsel, failed to examine the two provisions in
a proper perspective.
42. The next submission of the appellants is that “the objective of
the Act is an expression of the Obligation on the State to secure
safety, social order, public order and dignity of women.” It is
submitted that a bare perusal of the Preamble of the amending Act
and the Statement of Objects and Reasons would make it clear that
the State enacted the legislation only after receipt of complaints
from various social organizations as well as from various
individuals. The Preamble makes it clear that the legislature had
enough material to show that the performance of dance in the said
bars gives rise to exploitation of women, and further that the
performance of dances in eating houses, permit rooms or beer bars
are derogatory to the dignity of women and are likely to deprave,
corrupt or injure the public morality or morals. The High Court
ought to have considered the Statement of Objects and Reasons and
Preamble of the Act to discern the true intention of the
legislature. In support of the submission that the Court ought to
have looked at the objects and reasons, reliance is placed on the
observations of this Court in Shashikant Laxman Kale (supra),
wherein it is observed as follows:
“It is first necessary to discern the true purpose or object of
the impugned enactment because it is only with reference to the
true object of the enactment that the existence of a rational
nexus of the differentia on which the classification is based,
with the object sought to be achieved by the enactment, can be
examined to test the validity of the classification….”
43. It was reiterated that the High Court has given a very restrictive
interpretation to the phrase “exploitation of women”. The
expression would include not only the women who dance in the
prohibited establishments but also the waitresses who work in the
same establishments. It would also include the effect of the dance
bar on gender relations of not just the bar dancer, but for the
women around the area. The High Court, according to the
appellants, failed to take into account the object that the
statutory provisions are in respect of an activity of exploitation
of women conducted for financial gain by bar owners and their
intermediaries. It is emphasised that the issue involved in this
matter is not merely about dancing in the bars, but involves
larger issues of dignity of women, the destruction of environments
and circumstances where it is profitable to keep women vulnerable.
In such circumstances, the law is being used as a tool for dealing
with the evils of human trafficking and prostitution, rather than
simply prohibiting such activity without the administrative
resources to effectively implement such prohibition. It is further
submitted that the State is bound by this duty to protect the
interest of its citizens especially its weaker sections under the
Constitution. The legislation is sought to be justified on the
touchstone of Article 23, Article 39(e) and Article 51A(e) of the
Constitution. The action of' the Government is also justified on
the ground that it is necessary to emancipate women from male
dominance as women in dance bars are looked upon as objects of
commerce. It is emphasised that the bar dancing is obscene, vulgar
and casts considerable amount of negative influence on
institutions like family, society, youth etc.
44. Mr. Gopal Subramanium also emphasised that the State cannot shut
its eyes to the larger social problems arising out of bar dancing
which is uncontrolled and impossible to regulate. He sought to
justify the aforesaid submission by taking support from some
observations made in Paris Adult Theatre I Et. Al Vs. Lewis R.
Slaton, District Attorney, Atlanta Judicial Circuit, Et. Al[10].
This case provides, according to the learned senior counsel, a
discussion on relation with obscenity and pornography and the duty
of the state to regulate obscenity. Reliance is placed on the
following observations at pp 58, 60, 63, 64 and 69.
“It is not for us to resolve empirical uncertainties underlying
state legislation, save in exceptional Case where that
legislation plainly impinges upon rights protected by the
Constitution itself.”
………………
“Although there is no conclusive proof of a connection between
anti social behaviour and obscene material, the legislature of
Georgia could quite reasonably determine that such a connection
does or might exist. In deciding Roth, this Court implicitly
accepted that a legislature could legitimately act on such a
conclusion to protect the social interest in order and
morality." Roth v. United States, 354 U.S.., at 485, quoting
Chaplinsky v New Hampshire, 315 US. 568, 572 (1942).”
…………………
“The sum of experience, including that of the past two decades,
affords an ample basis for legislatures to conclude that a
sensitive, key relationship of human existence, central to
family life, community welfare, and the development of human
personality, can be debased and distorted by crass commercial
exploitation of sex. Nothing in the Constitution prohibits a
state from reaching such a conclusion and action on it
legislatively simply because there is no conclusive evidence or
empirical data.”
…………………………
“The states have the power to make a morally neutral judgment
that public exhibition of obscene material or commerce in such
material has a tendency to injure community as a whole, to
endanger the public safety or to jeopardise in Mr. Chief Justice
Warren's words, the States' "right ... to maintain a decent
society". Jacobellis v Ohio 378 US at 199 (dissenting opinion)"
45. It is further pointed out that the decision to ban obscene dancing
is also in consonance with Convention on the Elimination of All
Forms of Discrimination Against Women (CEADAW). Learned senior
counsel further submitted that establishments covered by Section
33A have a greater direct and indirect effect on the exploitation
of women, and the resultant and causative violence against women.
It is submitted that the degree of effect on the subjects covered
by the objects of the enactment are greater than any effect that
might be attributable to exempted establishments.
46. In any event, exempted establishments will also not be permitted
to carry out such performances, but are left to the operation of
parallel regulation simply because they are significantly fewer in
number and their very nature facilitates effective regulation.
Therefore, according to the learned senior counsel, the impugned
enactment is not discriminatory as it makes a reasonable
legislative classification which has a direct nexus with the
object sought to be achieved by the Act. In support of the
proposition that there is a reasonable classification and that the
State has the power to make such classification, reliance is
placed on the observations made by this Court in Kedar Nath
Bajoria & Anr. Vs. The State of West Bengal[11] which are as
follows:
"Now it is well settled that the equal protection of the laws
guaranteed by Article 14 of the Constitution does not mean that
all laws must be general in character and universal in
application and that the State is no longer to have the power of
distinguishing and classifying persons or things for the purpose
of legislation. To put it simply all that is required in class
or special legislation is that the legislative classification
must not be arbitrary but should be based on an intelligible
principle having a reasonable relation to the object which the
legislature seeks to attain. If the classification on which the
legislation is founded fulfils this requirement, then the
differentia which the legislation makes between the class of
persons or things to which it applies and other persons or
things left outside the purview of the legislation cannot be
regarded as a denial of the intelligible differentia having a
reasonable relation to the legislative purpose.”
47. Reliance is also placed on the observations of this Court in Ram
Krishna Dalmia Vs. Justice S.R. Tendolkar (supra) for outlining
the scope and ambit of Article 14 of the Constitution of India.
48. Finally, it is submitted that the Government had various documents
and reports based on which they felt it important to regulate the
menace of trafficking and to uphold the dignity of women. On the
basis of the aforesaid material, it is submitted that the
Government of Maharashtra enacted the amendment in good faith and
knowledge of existing conditions after recognizing harm, confined
the restrictions to cases where harm to women, public morality
etc. was the highest. The High Court has failed to appreciate all
the documentary evidence placed and gave a narrow meaning to the
object of the Act which is in the larger interest of the women and
society.
Article 19(1)(g) -
49. With regard to whether there is any infringement of rights under
Article 19(1)(g), it is submitted by the learned senior counsel
that the fundamental right under Article 19(1)(g) to practice any
profession, trade or occupation is subject to restrictions in
Article 19(6). Therefore, by prohibiting dancing under Section
33A, no right of the bar owners are being infringed. The curbs
imposed by Sections 33A and 33B only restrict the owners of the
prohibited establishments from permitting dances to be conducted
in the interest of general public. The term “interest of general
public” is a wide concept and embraces public order and public
morality. The reliance in support of this proposition was placed
on State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat &
Ors.[12] Reference was also made to Municipal Corporation of the
City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr.[13],
wherein this Court gave a wide meaning to “interest of general
public” and observed as follows :
“The expression in the interest of general public' is of wide
import comprehending public order, public health, public
security, morals, economic welfare of the community and the
objects mentioned in Part IV of the Constitution.”
50. Factually, it was emphasised that the history of the dance bars
and the activities performed within the dance bars show that they
are not set up with an intention to propagate art, exchange ideas
or spread knowledge. It is submitted that the dance performances
in these prohibited establishments were conducted in obscene and
objectionable manner to promote the sale of liquor. Therefore, the
main activity conducted in these prohibited establishments is not
a fundamental right. There is no fundamental right in carrying
business or sale in liquor and Government has power to regulate
the same. There is also overwhelming evidence on record to show
that girls have not opted for this profession out of choice but
have been brought into this by middle men or other exploitative
factors. There is no free and informed choice being made by the
bar dancers. This is sought to be supported by the observations in
the Prayas Report where it is stated :
“In conclusion, the study has shown that most women did not know
the nature of their employment at the time of getting into dance
bars for work, and they were brought into this work through
middle men. The basic elements of trafficking were found to be
present in the process of entry, though it may not have been in
its overt form. Having come here and seeing no other options,
they had no choice but to continue in this sector……”.
51. The SNDT Report also shows that only 17.40% of the bar girls are
from State of Maharashtra. The bar owners have been exploiting the
girls by sharing the tips received and also capitalizing on their
performance to serve liquor and improve the sales and business.
Again reliance is placed on the observations made in Prayas Report
at page 47 which is as under :
"The women working as either dancers or waiters were not paid
any salary, but were dependant on tips given by customers in the
bar, which varies from day-to-day and from women to another.
This money is often shared with the bar owner as per a fixed
ratio ranging from 30 to 60 percent."
52. The same conclusion is also found in Shubadha Chaukar Report where
it is stated that :
"Tips given by enamoured customers are the main income of girls
working in the bars. Normally dancers do not get a salary as
such. The bar owner makes it look like he is doing a favour by
allowing them to make money by dancing. So he does not give them
a salary. On the contrary a dancer has to hand over to the owner
30 to 40 per cent of what she earns. This varies from bar to
bar.”
53. On the basis of the above, it was submitted that the bar owners
with a view to attract customers introduced dance shows where
extremely young girls dance in an indecent, obscene and vulgar
manner which is detrimental to the dignity of women and depraves
and corrupt the morality.
54. The second limb of the submission is that the prohibition does not
bar the restaurant owners or the beer parlour owners from running
their respective establishments i.e. restaurant business, beer
parlours etc. What is being prohibited is only the dancing as a
form of entertainment in such establishments. The bar owners can
still conduct entertainment programmes like music, orchestras etc
which are not prohibited. It is submitted that loss of income
cannot be a reason for the bar owners to claim that their right to
trade and profession is being infringed. This submission is sought
to be supported by the observations of this Court in T.B. Ibrahim
Vs. Regional Transport Authority, Tanjore[14]. In this case it is
observed by this Court as follows:
“………………..There is no fundamental right in a citizen to carry on
business wherever he chooses and his right must he subject to
any reasonable restriction imposed by the executive authority in
the interest of public convenience. The restriction may have the
effect of eliminating the use to which the stand has been put
hitherto but the restriction cannot be regarded as being
unreasonable if the authority imposing such restriction has
power to do so. Whether the abolition of stand was conducive to
public convenience or not is a matter entirely for the transport
authority to judge, and it is not open to the court to
substitute its own opinion for the opinion of the Authority,
which is in the best position, having regard to its knowledge of
local conditions to appraise the situation".
55. It was next submitted that the High Court wrongly concluded that
the activity of young girls/women being introduced as bar dancers
is not Res Extra Commercium. Such activity by the young girls is a
dehumanising process. In any event, trafficking the girls into bar
dancing completely lacks the element of conscious selection of
profession. An activity which has harmful effects on the society
cannot be classified as a profession or trade for protection under
Article 19(1)(g) of the Constitution. Such dances which are
obscene and immoral would have to be considered as an activity
which is 'Res Extra Commercium'. The High Court has wrongly
concluded otherwise. Reliance is also placed on the observations
made by this Court in the case of State of Bombay Vs. R.M.D.
Chamarbaugwala & Anr.[15] In this case, it was observed by this
Court that activity of gambling could not be raised to the status
of trade, commerce or intercourse and to be made subject matter of
a fundamental right guaranteed by Article 19(1)(g). Similarly, in
this case the dance bars having negative impact on family, women,
youth and has been augmenting the crime rate as well as
trafficking and exploitation of women. Reference was again made to
the various reports and studies to show the disruptive opinion of
the dance bars in the families of the persons employed in such
dance bars. Reliance was placed on the judgment of this Court in
Khoday Distilleries Ltd. & Ors. Vs. State of Karnataka & Ors.[16],
in support of the submission that the trading in liquor is not a
fundamental right. This Court further observed that trafficking in
women or in slaves or in counterfeit coins or to carry on business
of exhibiting or publishing pornographic or obscene films and
literature is not a fundamental right as such activities are
vicious and pernicious. Reliance was placed on the following
observations:
“The correct interpretation to be placed on the expression "the
right to practice any profession, or to carry on any occupation,
trade or business" is to interpret it to mean the right to
practice any profession or to carry on any occupation, trade or
business which can be legitimately pursued in a civilised
society being not abhorrent to the generally accepted standards
of its morality. ………This is apart from the fact that under our
Constitution the implied restrictions on the right to practice
any profession or to carry on any occupation, trade or business
are made explicit in clauses (2) to (6) of Article 19 of the
Constitution and the State is permitted to make law for imposing
the said restrictions.”
“It does not entitle citizens to carry on trade or business in
activities which are immoral and criminal and in articles or
goods which are obnoxious and injurious to health, safety and
welfare of the general public, i.e., res extra commercium,
(outside commerce). There cannot be a business in crime. (c)
Potable liquor as a beverage is an intoxicating and depressant
drink which is dangerous and injurious to health and is,
therefore, an article which is res extra commercium being
inherently harmful. A citizen has, therefore, no fundamental
right to do trade or business in liquor. Hence the trade or
business in liquor can be completely prohibited.”
56. The aforesaid observations were reiterated in State of Punjab &
Anr. Vs. Devans Modern Breweries Ltd. & Anr.[17] Relying on the
aforesaid observations, it was submitted that in the banned
establishments, the dance is performed amidst consumption of
liquor and the State has every right and duty to regulate the
consequence emanating from such circumstances. In support of this
submission, the appellants relied on the judgment of the United
States Supreme Court in New York State Liquor Authority Vs. Dennis
BELLANCA, DBA The Main Event, Et Al.[18]. In this case, the
question raised was about the power of a State to prohibit topless
dancing in an establishment licensed by State to serve liquor. It
was claimed that the prohibition was violative of United States
Constitution. U.S. Supreme Court, upon consideration of the issue,
observed as follows:
"In short, the elected representatives of the State of New York
have chosen to avoid the disturbances associated with mixing
alcohol and nude dancing by means of reasonable restriction upon
establishments which sell liquor for on-premises consumption.
Given the "added presumption in favour of the validity of the
state regulation" conferred by Twenty first Amendment,
California v LaRue, 409 U. S., at 118, we cannot agree with the
New York Court of Appeals that statute violates United States
Constitution. Whatever artistic or communicative value may
attach to topless dancing is overcome by State's exercise of its
broad powers arising under the Twenty-first Amendment. Although
some may quarrel with the wisdom of such legislation and may
consider topless dancing a harmless diversion, the Twenty first
Amendment makes that a policy judgment fin- the state
legislature, not the courts."
57. It was also submitted that in the present case the dance is
conducted in an obscene manner and further the dance bars
eventually happen to be pick up locations that also propagate
prostitution in the area, which is sought to be prevented by the
legislation. The appellants also relied on the judgment in Regina
Vs. Bloom[19]. In this case, the appellants were proprietors of
the clubs who were charged with keeping a disorderly house, which
arose out of matters that occurred in course of strip tease
performances. The Court of Criminal Appeal (England) held that as
regards the cases in which indecent performances or exhibition are
alleged, a disorderly house is a house conducted contrary to law
and good order in that matters performed or exhibited are of such
a character that their performance or exhibition in a place of
common resort amounts to an outrage of public decency or tends to
corrupt or deprave the dignity of women and public morality.
Therefore in the present circumstances, the State, in the interest
of dignity of women, maintenance of public order and morality has
banned dances in such establishments where regulation is virtually
impossible. Since the obscene and vulgar dancing is a res extra
commercium, the establishments cannot claim a fundamental right to
conduct dance therein.
58. It is further submitted that the legislation also does not
infringe any fundamental right of the bar dancers. The prohibition
contained under Section 33A is not absolute and the dancers can
perform in exempted establishments. This apart, the dancers are
also free to dance in auditoriums, at parties, functions, musical
concerts, etc. According to the appellants, another important
facet of the same submission is that the rights of the bar girls
to dance are subject to the right of the bar owners to run the
establishment. In other words, the right of the bar girls are
derivative and they do not have absolute right to dance as a
vocation or profession in the dance bars. This right would be
automatically curtailed in case the dance bar is closed for
economic reasons or as a result of licence being cancelled. In
support of the submission, the appellants relied on a judgment of
this Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri
& Ors. Vs. Union of India & Ors.[20] in which it is held as under
:-
"14. The right of the petitioners to carry on the occupation of
industrial workers is not, in any manner, affected by the
impugned sale. The right to pursue a calling or to carry on an
occupation is not the same thing as the right to work in a
particular post under a contract of employment. If the workers
are retrenched consequent upon and on account of sale, it will
be open to them to pursue their rights and remedies under the
industrial laws. But the point to be noted is that the closure
of an establishment in which a workman is for the time being
employed does not by itself infringe his fundamental right to
carry on an occupation which is guaranteed under article
19(1)(g) of the constitution.”
59. Relying on the above, it is submitted that there is no absolute
right for the bar girls to be employed in the dance bars and that
the right to work would be subject to the continuation of the
establishment. Hence, it is a derivative right emanating from the
right of the dance bar owners to run the establishments subject to
restrictions imposed.
60. It is next submitted that the right to trade and profession is
subject to reasonable restriction under Article 19(6) of the
Constitution. The decision to impose the ban was to defend the
weaker sections from social injustice and all forms of
exploitation. In the instant case, the moral justification is
accompanied with additional legitimate state interest in matters
like safety, public health, crimes traceable to evils, material
welfare, disruption of cultural pattern, fostering of
prostitution, problems of daily life and multiplicity of crimes.
Learned senior counsel for the appellants strongly relied upon the
Statement of Objects and Reasons and the Preamble of the amending
Act to reiterate that the State is enjoined with the duty to
protect larger interest of the society when weaker sections are
being exploited as objects of commerce and when there is issue of
public order and morality involved.
61. The appellants have relied on a number of judgments of this Court
to illustrate the concept of “reasonable restriction” and the
parameters within which the court will examine a particular
restriction as to whether it falls within the ambit of Article
19(6). Reference was made to the State of Madras Vs. V.G. Row[21],
B.P. Sharma Vs. Union of India & Ors.[22], M.R.F. Ltd. Vs.
Inspector Kerala Govt. & Ors.[23]. Since the principles are all
succinctly defined, we may notice the observations made by this
Court in B.P. Sharma’s case (supra).
"The main purpose of restricting the exercise of the right is to
strike a balance between individual freedom and social control.
The freedom, however, as guaranteed under article 19(1)(g) is
valuable and cannot be violated on grounds which are not
established to be in public interest or just on the basis that
it is permissible to do so. For placing a complete prohibition
on any professional activity there must exist some strong reason
for the same with a view to attain some legitimate object and in
case of non-imposition of such prohibition, it may result in
jeopardizing or seriously affecting the interest of the people
in general. If it is not so, it would not be a reasonable
restriction if placed on exercise of the right guaranteed under
article 19 (1)(g). The phrase ''in the interest of the general
public" has come to be considered in several decisions and it
has been held that it would comprise within its ambit interests
like public health and morals (refer to State of Maharashtra v
Himmatbhai Narbheram Rao (AIR 1970 SC 1157), economic stability
On consideration of a catena of decisions on the point, this
Court, in a case reported in 'IMF Ltd v Inspector, Kerala
Government (1998) 8 SCC 227 has laid certain tests on the basis
of which reasonableness of the restriction imposed on exercise
of the right guaranteed under Article 19 (1)(g) can be tested.
Speaking for the Court, Saghir Ahmad (as he then was), laid down
such considerations as follows:
"(1) While considering the reasonableness of the restrictions,
the court has to keep in mind the directive principles of State
policy.
(2) Restrictions must not be arbitrary or of an excessive nature
so as to go beyond the requirement of the interest of general
public.
(3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid
down so as to be of universal application and the same will vary
from case to case as also with regard to the changing
conditions, values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances.
(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by clause (6) of
article 19.
(5) Prevailing social values as also social needs which are
intended to be satisfied by restrictions have to be borne in
mind. (see State of U.P. v Kaushailiya)
(6) There must be a direct and proximate nexus or a reasonable
connection between the restrictions imposed and the object
sought to be achieved. If there is a direct nexus between the
restrictions and the object of the Act, then a strong
presumption in favour of constitutionality of the Act will
naturally arise.”
62. Thereafter, Mr. Subramanium has cited State of Gujarat Vs.
Mirzapur Moti Kureshi Kassab Jamat (supra) in support of the
submission that Statement of Objects and Reasons would be relevant
for considering as to whether it is permissible to place a total
ban under Article 19(6). After considering the principles laid
down earlier, this court concluded as under:-
“We hold that though it is permissible to place a total ban
amounting to prohibition on any profession, occupation, trade or
business subject to satisfying the test of being reasonable in
the interest of general public, yet, in the present case banning
slaughter of cow progeny is not a prohibition but only a
restriction.”
63. Relying on the aforesaid, it was submitted that while considering
the reasonableness, the court should consider the purpose of
restriction imposed, extent of urgency, prevailing conditions at
the time when the restriction was imposed. According to the
appellants, in the instant case, the social order problems in and
around the dance bars had reached such heights which were beyond
the tolerable point. The tests laid down earlier were reiterated
in M.J. Sivani & Ors. Vs. State of' Karnataka & Ors.[24] In this
case, it is observed as follows :
“18…………. In applying the rest of reasonableness, the broad
criterion is whether the law strikes a proper balance between
social control on the one hand and the right of individual on
the other hand. The court must take into account factors like
nature of the right enshrined, underlying purpose of the
restriction imposed, evil sought to be remedied by the law, its
extent and urgency, how far the restriction is or is not
proportionate to the evil and the prevailing conditions at that
time.”
64. Relying on the aforesaid, it was submitted that the larger issue
involved was the trafficking of young women and minors into dance
bars and also incidentally leading to prostitution which could
have been prevented to a large extent only by imposing the ban. In
support of this, learned counsel have relied on the Prayas Report
which shows that 6% of the women working in dance bars are minors
and 87% are between the age of 18-30 years. Similarly, SNDT report
states that minors constitute upto 6.80 % and those between 19 to
30 years of age constitute 88.20%. Prayas Report further states
that "It was found that the women respondents did not find any
dignity in this work. This is borne out by the fact that 47% of
women did not reveal their work to family members and outsiders.
They are often exposed to the sexual overtures of overenthusiastic
customers and are aware of their vulnerability to get exploited".
The appellants also relied on a number of complaints and the
various cases of minor girls being rescued from dance bars during
the period 2002-05 to buttress their submission that the young
girls were subjected to human trafficking. Learned senior counsel
also submitted that the High Court has erroneously concluded that
if the women can safely work as waitress in the Restaurants why
can they not work as dancers. The learned senior counsel also
submitted that the High Court wrongly proceeded on the basis that
there was no evidence before the State or the Court in support of
the legislation. On the basis of the above, it is submitted that
the restrictions imposed are reasonable and the legislation
deserves to be declared intra vires the constitutional provisions.
65. Further, it was submitted that the legislative wisdom cannot be
gone into by the court. The Court can only invalidate the
enactment if it transgresses the constitutional mandate. It is
submitted that invalidation of a statute is a grave step and that
the legislature is the best judge of what is good for the
community. The legislation can only be declared void when it is
totally absurd, palpably arbitrary, and cannot be saved by the
court. It is reiterated that the principle of “Presumption of
Constitutionality” has to be firmly rebutted by the person
challenging the constitutionality of legislation. The United
States Supreme Court had enunciated the principle of
constitutionality in favour of a statute and that the burden is
upon the person who attacks it to show that there has been a clear
transgression of any Constitutional provision. The appellants
relied on the observations made in Charanjit Lal Chowdhury Vs.
Union of India & Ors.[25] wherein this Court observed as follows :
“It must be presumed that a legislature understands and
correctly appreciates the need of its own people, that its laws
are directed to problems made manifest by experience and that
its discriminations are based on adequate grounds"
66. The same principle was reiterated by this Court in State of Bihar
& Ors. Vs. Bihar Distillery Ltd. & Ors.[26] in the following words
:
“The approach of the Court, while examining the challenge to the
constitutionality of an enactment, is to start with the
presumption of constitutionality. The court should try to
sustain its validity to the extent possible. It should strike
down enactment only when it is not possible to sustain it. The
court should not approach the enactment with a view to pick
holes or to search for defects of drafting, much less
inexactitude of language employed. Indeed, any such defects of
drafting should be ironed out as a part of attempt to sustain
the validity/constitutionality of the enactment. After all, an
act by the legislature represents the will of the people and
that cannot be lightly interfered with. The unconstitutionality
must be plainly and clearly established before an enactment is
declared as void."
67. On the basis of the above, it was submitted that the burden of
proof is upon the Respondents herein to prove that the
enactment/amendment is unconstitutional. Once the respondents
prima facie convince the Court that the enactment is
unconstitutional then the burden shifts upon the State to satisfy
that the restrictions imposed on the fundamental rights satisfy
the test of or reasonableness. The High Court, according to the
appellants, failed to apply the aforesaid tests.
68. Finally, it was submitted that in the event this Court is not
inclined to uphold the constitutionality of the impugned
provisions, it ought to make every effort to give the provision a
strained meaning than what appears to be on the face of it. This
is based on the principle that it is only when all efforts to do
so fail, the court ought to declare a statute to be
unconstitutional. The principle has been noticed by this Court in
Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)[27]
wherein it is observed as follows :
"46. In our opinion, there is one and only one ground for
declaring an Act of the legislature (or a provision in the Act)
to be invalid, and that is if it clearly violates some provision
of the constitution in so evident a manner as to leave no manner
of doubt. This violation can, of course, be in different ways
But before declaring the statute to be unconstitutional, the
court must be absolutely sure that there can be no two views
that are possible, one making the statute constitutional and the
other making it unconstitutional, the former view must always be
preferred. Also, the court must make every effort to uphold the
constitutional validity of a statute, even if that requires
giving strained construction or narrowing down its scope vide
Rt. Rev. Msgr. Mark Netto v State of Kerala (1979) 1 SCC 23 para
6.
69. The same principle was reiterated in Kedar Nath Singh Vs. State of
Bihar[28] which is as follows :
“It is well settled that if certain provisions of law, construed
in one way, would make them consistent with the Constitution and
another interpretation would render them unconstitutional, the
court would lean in favour of the former construction.”
70. On the basis of the above, it was submitted that this Court ought
to read down the provision in the following manner:
“All dance” found in Section 33A of the Police Act may be read
down to mean that “dances which are obscene and derogatory to the
dignity of women”. This would ensure that there is no violation of any
of the rights of the girls who dance as well as that of the owners of
the establishments. Still further, it was submitted that even if the
reading of the provisions as mentioned above is not accepted, Section
33A can still be saved by applying the doctrine of severability. It is
submitted that the intention of the legislature being to prohibit and
ban obscene dance in the interest of society and to uphold the dignity
of women, by severing the exempting section, namely, Section 33B and
the provision which is contained in Section 33A can be declared to be
in accordance with the object of legislature. This would remove the
vice of discrimination, as declared by the High Court.
Respondents’ Submissions:
71. In response to the aforesaid elaborate submissions, learned senior
counsel appearing for the respondents have also submitted written
submissions. Mr. Mukul Rohatgi, learned senior counsel appeared
for respondent – Indian Hotel and Restaurants Association in
C.A.No.2705 of 2006, whereas Dr. Rajeev Dhawan,
learned senior counsel, appeared on behalf of Bhartiya Bar Girls
Union in C.A.No.2705 of 2006. Mr. Anand Grover, learned senior
counsel, appeared for respondent Nos. 1 to 6 in W.P.No.2338/2005
and respondent No. 1 and 2 in W.P. No.2587 of 2005.
72. Since the High Court has accepted the submissions made on behalf
of the respondents (writ petitioners in the High Court), it shall
not be necessary to note the submissions of the learned senior
counsel as elaborately as the submissions of the appellants
herein. Mr. Mukul Rohatgi submitted that, at the heart of the
present case, the controversy revolved around the right to earn a
livelihood more so than the right of a person to choose the
vocation of their calling. It was submitted that apart from the
reasoning given in the judgment of the High Court, the challenge
to the impugned legislation can be sustained on other grounds
also. He submits that a classification of the establishments into
three stars and above, and below is not based on any intelligible
differentia and is per se discriminatory and arbitrary. Bar
dancers have a right to livelihood under Article 21 and the ban
practically takes away their right to livelihood. He therefore,
submits that the ban is violative of Articles 14, 19(1)(a) and
19(1)(g) and 21 of the Constitution. Relying on the observations
made by this Court in the case of I.R. Coelho (Dead) by LRs. Vs.
State of T.N.[29], he submits that these articles are the very
heart and soul of the Constitution and are entitled to greater
protection by the Court than any other right. Mr. Rohatgi submits
that the submissions made by the appellants with regard to the
protecting the dignity of women and preventing trafficking in
women are misconceived. There are adequate measures in the
existing provisions, licensing conditions which would safeguard
the dignity of women. Relying on Sections 370 and 370A of the IPC,
he submits that there are adequate alternate mechanisms for
preventing trafficking in women. Elaborating on the submissions
that dance is protected by Article 19(1)(a) of the Constitution
being a part of fundamental right of speech and expression, he
relied upon the observations made by this Court in Sakal Papers
(P) Ltd. & Ors. Vs. The Union of India[30]. He has also made a
reference to some decisions of the High Court recognizing that
dancing and cabaret are protected rights under Article 19(1)(a).
He points out that it is always open to a citizen to commercially
benefit from the exercise of the fundamental right. Such
commercial benefit could be by a bar owner having dance
performance or by the dancers themselves using their creative
talent to carry on an occupation or profession. The impugned
amendment prohibits the bar owners from carrying on any business
or trade associated with dancing in these establishments and the
bar girls from dancing in those premises. He then submits that the
amendment violates Article 19(1)(g), by imposing restrictions by
way of total prohibition of dance. Even though the freedom under
Article 19(1)(g) of the Constitution is not absolute, any
restriction imposed upon the same have to fall within the purview
of clause 6 of Article 19. Therefore, the restriction imposed by
law must be reasonable and in the interest of general public. It
was also submitted that while such restriction may incidentally
touch upon other subjects mentioned above, such as morality or
decency, the same cannot be imposed only in the interest of
morality or decency. Mr. Rohatgi then submitted that the reasons
set out in the objects and reasons of the amendment are not
supported by any evidence which would demonstrate that there was
any threat to public order. There is also no material to show that
the members of the Indian Hotel and Restaurants Association were
indulging in human trafficking or flesh trade. Therefore,
according to Mr. Rohatgi, the ban was not for the protection of
any interests of the general public. In fact, Mr. Rohatgi
emphasised that the Statement of Objects and Reasons does not
refer to trafficking. The compilation of 600 pages given to the
respondents by the appellants does not contain a single complaint
about trafficking. All allegations relating to trafficking have
been introduced only to justify the ban on dancing. He, therefore,
submits that the total ban imposed on dancing violates the
fundamental right guaranteed under Article 19(1)(g). Learned
senior counsel further submitted that dancing is not res extra
commercium. He emphasised that if the dancing of similar nature in
establishments, mentioned in Section 33B is permissible, the
prohibition of similar dance performance in establishments covered
under Section 33 cannot be termed as reasonable and or “in the
interest of general public”. Therefore, according to Mr. Rohatgi,
the restrictions do not fall within the scope of Article 19(6). He
relied on the judgment of this Court in Anuj Garg & Ors. Vs. Hotel
Association of India & Ors.[31], wherein a ban on employment of
women in establishment where liquor was served, was declared
discriminatory and violative of Articles 14, 15, 19 and 21. In
this case, it was held as under :
“…….Women would be as vulnerable without State protection as by
the loss of freedom because of the impugned Act. The present law
ends up victimising its subject in the name of protection. In
that regard the interference prescribed by the State for
pursuing the ends of protection should be proportionate to the
legitimate aims. The standard for judging the proportionality
should be a standard capable of being called reasonable in a
modern democratic society.
Instead of putting curbs on women's freedom, empowerment would
be a more tenable and socially wise approach. This empowerment
should reflect in the law enforcement strategies of the State as
well as law modelling done in this behalf.
Also with the advent of modern State, new models of security
must be developed. There can be a setting where the cost of
security in the establishment can be distributed between the
State and the employer.”
73. Relying on the State of Gujarat Vs. Mirzapur Moti Kureshi Kassab
Jamat (supra), Mr. Rohatgi submitted that the standard for judging
reasonability of restriction or restrictions which amounts to
prohibition remains the same, excepting that a total prohibition
must also satisfy the test that a lesser alternative would be
inadequate. The State has failed to even examine the possibility
of the alternative steps that could have been taken. He has also
relied on the judgments with regard to the violation of Article 14
to which reference has already been made in the earlier part of
the judgment. Therefore, it is not necessary to reiterate the
same. However, coming back to Section 33B, Mr. Rohatgi submitted
that dancing that is banned in the establishments covered under
Section 33A is permitted under the exempted establishments under
Section 33B. According to learned senior counsel, the differentia
in Section 33A and 33B does not satisfy the requirement that it
must be intelligible and have a rational nexus sought to be
achieved by the statute. He submits that the purported
“immorality” gets converted to “virtue” where the dancer who is
prohibited from dancing in an establishment covered under Section
33A, dances in an establishment covered under Section 33B. The
discrimination, according to Mr. Rohatgi, is accentuated by the
fact that for a breach committed by the licensees in the category
of Section 33B only their licenses will be cancelled but the
licensees of establishments covered under Section 33A would have
to close down their business. He further submits that the
provision contained in Section 33A is based on the presumption of
the State Government that the performance of dance in prohibited
establishments having lesser facilities than three star
establishments would be derogatory to the dignity of women. The
State also presumed that dancing in such establishments is likely
to deprave, corrupt or injure public morality. The presumption is
without any factual basis. The entry of women in such
establishments is not banned. There is also no prohibition for
women to take up alternative jobs within such establishments. They
can serve liquor and beer to persons but this does not lead to the
presumption that it would arouse lust in the male customers. On
the other hand, when women start dancing it is presumed that it
would arouse lust in the male customers. He emphasised the
categorization of establishments under Sections 33A and 33B does
not specify the twin criteria: (i) that the classification must be
founded on an intelligible differentia which distinguishes those
that are grouped together from others; and (ii) the differentia
must have a rational nexus or relation to the object sought to be
achieved by the legislation. He submits that there is a clear
discrimination between the prohibited establishments and the
exempted establishments. He points out that the only basis for the
differentiation between the exempted and prohibited establishments
is the investment and the paying capacity of patrons. Such a
differentiation, according to Mr. Rohatgi, is not permissible
under the Constitution.
74. The next submission of Mr. Rohatgi is that Article 21 guarantees
the right to life which would include the right to secure a
livelihood and to make life meaningful. Article 15(1) of the
Constitution of India guarantees the fundamental right that
prohibits discrimination against any citizen, inter alia, on the
ground only of sex. Similarly Article 15(2) lays down that no
citizen shall, on grounds only of, inter alia, sex, be subject to
any disability, liability, restriction or condition with regard,
inter alia, to “access to shops, public restaurants, hotels and
places of public entertainment.” The provision in Article 15(3) is
meant for protective discrimination or a benign discrimination or
an affirmative action in favour of women and its purpose is not to
curtail the fundamental rights of women. He relied on the
observations made by this Court in Government of A.P. Vs. P.B.
Vijayakumar & Anr.[32] :-
“The insertion of clause (3) of Article 15 in relation to women
is a recognition of the fact that centuries, women of this
country have been socially and economically handicapped. As a
result, they are unable to participate in the socio-economic
activities of the nation on a footing of equality. It is in
order to eliminate this socio-economic backwardness of women and
to empower them in a manner that would bring about effective
equality between men and women that Article 15(3) is placed in
Article 15. Its object is to strengthen and improve the status
of women. An important limb of this concept of gender equality
is creating job opportunities for women……’’
(Emphasis supplied)
75. He submits that the impugned legislation has achieved the opposite
result. Instead of creating fresh job opportunities for women it
takes away whatever job opportunities are already available to
them. He emphasised that the ban also has an adverse social
impact. The loss of livelihood of bar dancers has put them in a
very precarious situation to earn the livelihood. Mr. Rohatgi
submitted that the dancers merely imitate the dance steps and
movements of Hindi movie actresses. They wear traditional clothes
such as ghagra cholis, sarees and salwar kameez. On the other
hand, the actresses in movies wear revealing clothes: shorts,
swimming costumes and revealing dresses. Reverting to the reliance
placed by the appellants on the Prayas Report and Shubhada Chaukar
Report, Mr. Rohatgi submitted that both the reports are of no
value, especially in the case of Prayas Report which is based on
interviews conducted with only few girls. The SNDT Report actually
indicates that there is no organized racket that brings women to
the dance bars. The girls’ interview, in fact, indicated that
they came to the dance bars through family, community, neighbors
and street knowledge. Therefore, according to the Mr. Rohatgi,
the allegations with regard to trafficking to the dance bars by
middlemen are without any basis. Most of the girls who performed
dance are generally illiterate and do not have any formal
education. They also do not have any training or skills in
dancing. This clearly rendered them virtually unemployable in any
other job. He, therefore, submits that the SNDT Report is
contradictory to the Prayas Report. Thus, the State had no
reliable data on the basis of which the impugned legislation was
enacted. Mr. Rohatgi further submitted that there are sufficient
provisions in various statutes which empowered the Licensing
Authority to frame rules and regulations for licensing/controlling
places of public amusement or entertainment. By making a reference
to Rules 120 and 123 framed under the Amusement Rules, 1960; he
submits that no performers are permitted to commit on the stage or
any part of the auditorium any profanity or impropriety of
language. These dancers are also not permitted to wear any
indecent dress. They are also not permitted to make any indecent
movement or gesture whilst dancing. Similar provisions are
contained under the Performance License. Although learned senior
counsel has listed all the regulatory provisions contained under
the Bombay Police Act, it is not necessary to notice the same. The
submission based on this regulation is that there is wide
amplitude of power available to the appellants for controlling any
perceived violation of dignity of women through obscene dances. He
submits that the respondents are being made a scapegoat for
lethargy and failure of police to implement the provisions of law
which are already in place and are valid and subsisting. Failure
of the appellants in not implementing the necessary rules and
regulations would not justify the impugned legislation. Learned
senior counsel has also submitted that the State Government, in
its effort to regulate the conduct of dances, had formed a
Committee to make suggestions for amendment of the existing Rules.
The Committee had prepared its report and submitted the same to
the State Government. However, the State Government did not take
any steps for implementation of the recommendation which was
supported by the Indian Hotel and Restaurant Association. He
submits that the judgment of the High Court does not call for any
interference.
76. Dr. Rajeev Dhawan, learned senior counsel, has also highlighted
the same issues. He has submitted that the provisions contained in
Section 33A(1) prohibit performance of dance of any kind or type.
Since the Section contained the Non Obstante Clause, it is a stand
alone provision absolutely independent of the Act and the Rules.
He submits that the provisions are absolutely arbitrary and
discriminatory. Under Section 33A(1), there is an absolute
provision which is totally prohibiting dance in eating houses,
permit rooms or beer bars. On the other hand, Section 33B
introduced the discriminatory provision which allows such an
activity in establishments where entry is restricted to members
only and three starred or above hotels. He also emphasised that
the consequence of violation of Section 33A is punishment up to 3
years imprisonment or Rs. 2 lakhs fine or both and with a minimum
3 months and Rs.50,000/- fine unless reasons are recorded. The
Section further contemplates that the licence shall stand
cancelled. Section 33A(6) makes the offence cognizable and non-
bailable. According to Dr. Rajeev Dhawan, the provision is
absolute and arbitrary. He reiterates that the non obstante clause
virtually makes Section 33A stand alone. Further Section 33A(1) is
discretion less. It applied to all the establishments and covers
all the activities, including holding of performance of dance of
any kind or type in any eating house, permit room or beer bar.
There is total prohibition in the aforesaid establishments. The
breach of any condition would entail cancellation of licence.
According to Dr. Dhawan, Section 33A is a draconian code which is
discretion less overbroad, arbitrary with mandatory punishment for
offences which are cognizable and non-bailable. He then emphasised
that the exemption granted to the establishment under Section 33B
introduces blatant discrimination. He submits that the
classification of two kinds of establishment is unreasonable.
According to Dr. Dhawan, it is clear that Section 33B makes
distinction on the grounds of “class of establishments” or “class
of persons who frequent the establishment” and not on the form of
dance. He reiterates the submission that if dance can be
permitted in exempted institutions it cannot be banned in the
prohibited establishments. He submitted that treating
establishments entitled to a performance licence differently, even
though they constitute two distinct classes would be
discriminatory as also arbitrary, considering the object of the
Act and the same being violative of Article 14 of the Constitution
of India. Answering the submission on burden of proof with regard
to the reasonableness of the restriction, Dr. Dhawan submits
that the burden of showing that the recourse to Article 19(6) is
permissible lies upon the State and not on the citizen, he relies
on the judgment of this Court in M/s. Laxmi Khandsari & Ors. Vs.
State of U.P. & Ors.[33]
77. Relying on the Narendra Kumar & Ors. Vs. Union of India &
Ors.[34], he submitted that the total prohibition in Section 33A
must satisfy the test of Article 19(6) of the Constitution.
Reliance is placed on a number of judgments to which we have made
a reference earlier. Dr. Dhawan further emphasised that the
reports relied upon by the State would not give a justification
for enacting the impugned legislation. He points out that the
study conducted by Shubhada Chaukar for Vasantrao Bhagwat Memorial
Fellowship entitled “Problems of Mumbai Bar girls” is based on
conversations with 50 girls. According to Dr. Dhawan, this report
is thoroughly unreliable. The report itself indicates that there
are about one lakh bar girls in Mumbai-Thane Region, therefore,
interview of 50 girls would not be sufficient to generate any
reliable data. The report also states that there are about 1000-
1200 bars, but it is based on interaction with seven bar owners.
Even then the report does not suggest complete prohibition but
suggests a framework which “regulates” the functioning of bars,
performances by singers, dancers etc. Similarly, the Prayas Report
cannot be relied upon. The study was, in fact, done after the ban
was imposed by the State Government. Even this report indicates
that after the ban there was urgent need to find alternate source
of livelihood for these girls. There was no facility of education
for the children. Even this report finds that the families from
which these girls come are economically weak. Six percent of minor
children comprise the dancing population. They are not provided
any specialized training to be bar dancers. They do not live in
self owned houses. The SNDT Report clearly states that the study
is based on interaction with 500 girls from 50 bars. The report
indicates that there are a number of prevalent myths which are
without any basis. It is pointed out that, according to the
report, the following are the myths :-
1. It is an issue of trafficking from other States and
countries.
2. 75% dancers are from Bangladesh.
3. Only 3% are dancers from Maharashtra.
4. Bar culture is against the tradition of Maharashtra.
5. Girls who dance are minors.
6. Bar Dancers hide their faces.
7. Girls don’t work hard.
8. Bar Girls can be rehabilitated in Call Centers.
9. Dancing in Bars is sexual exploitation.
10. Girls are forced into sex work.
11. Dance bars are vulgar and obscene.
12. Ban will solve all these problems.
78. The study, in fact, recommends that the dance bars should not be
banned. There should be regularization of working conditions of
bar dancers. There should be monitoring and prevention of entry of
children into these establishments. There should be protection
against forced sexual relations and harassments. There should be
security of earning, medical benefits and protection from unfair
trade practices. The report recommends that there is a need for
development that increases rather than reduces options for women.
The report also indicates that the ban had an adverse impact in
that respect. It will lead to women becoming forced sex workers.
The second report of SNDT is based on empirical interviews. It
recommends that the ban imposed should be lifted immediately. Dr.
Dhawan has further elaborated the shortcomings of the Prayas
Report. He has also emphasised that both the SNDT and Prayas
Report substantiate the fact that dancers were the sole bread
winners in their families earning approximately Rs.5,000/- to
Rs.20,000/- per month. They were supporting large families in
Mumbai as well as in their native places. After the ban, these
families are left without a source of income and have since then
been rendered destitute. He also points out that the SNDT study
indicates that many dancers came from environments/employments
where they had been exploited (maid servants, factory workers,
etc.). Most of these women had taken employment as dancers in view
of the fact that it afforded them financial independence and
security. The SNDT Report points out that not a single bar dancer
has ever made any complaint about being trafficked. The reports,
according to Dr. Dhawan, clearly indicate that complete
prohibition is not the solution and regulation is the answer.
79. Dr. Dhawan then submitted that the conclusions recorded by the
High Court on equality and exploitation need to be affirmed by
this Court. He has submitted that to determine the reasonableness
of the restriction, the High Court has correctly applied the
direct and inevitable effect test. He seeks support for the
submission, by making a reference to the observations made by this
Court in Rustom Cavasjee Cooper Vs. Union of India[35] and Maneka
Gandhi Vs. Union of India & Anr.[36], he emphasised that the
direct operation of the Act upon the rights forms the real test.
The principle has been described as the doctrine of intended and
real effect or the direct and inevitable effect, in the case of
Maneka Gandhi (supra). Dr. Dhawan also emphasised that dancing is
covered by Article 19(1)(a) even though it has been held by the
High Court that it is not an expression of dancers but their
profession. He relied on the observations of this Court in Bharat
Bhawan Trust Vs. Bharat Bhawan Artists’ Association & Anr.[37]
wherein it is held that the acting done by an artist is not done
for the business. It is an expression of creative talent, which is
a part of expression.
80. Illustrations submitted by Dr. Dhawan are that the legislation
cannot be saved even by adopting the doctrine of proportionality
which requires adoption of the least invasive approach. Dr. Dhawan
has reiterated that the suggestions made by the Committee pursuant
to the resolution dated 19th December, 2002 ought
to be accepted. According to Dr. Dhawan, acceptance of such
suggestions would lead to substantial improvement. If the State
really seeks to control obscene bar dancing, he submitted that the
solution can be based on ensuring that:- bar girls are unionized;
there is adequate protection to the girls and more involvement of
the workers in self improvement and self regulation. Dr. Dhawan
does not agree with Mr. Gopal Subramanium that this should be
treated as a case of trafficking with complicated crisis centric
approach.
81. Mr. Anand Grover, learned senior counsel has rebutted the factual
submissions made by the appellants. He submits that the State has
wrongly mentioned before the court that women who dance in the bar
are trafficked or compelled to dance against their will and that
the significant number of dancers are minor or under the age of 18
years; that the majority of dancers are from states outside
Maharashtra which confirms the allegation of inter-state
trafficking; that dancing in bars is a gateway to prostitution;
that bar dancing is associated with crime and breeds criminality;
that the conditions of dance bars are exploitative and
dehumanizing for the women. Lastly, that bar dancing contributes
to social-ills and illicit affairs between dancers and the male
visitors break up of family and domestic violence against wives of
men visiting the dance bars. According to Mr. Grover, the
aforesaid assertions are founded on incorrect, exaggerated or
overstated claims. Learned senior counsel has also indicated that
there is great deal of fudging of figures by police with regard to
complaints and cases registered under the dance bars to
substantiate their contentions. He has relied on the official data
on the incidence of trafficking crimes from the National Crime
Records Bureau report for the year 2004-2011 to show that there is
no nexus between dance bars and trafficking in women. Learned
senior counsel has reiterated the submission that Section 33A and
Section 33B of the Bombay Police Act violate Article 14 of the
Constitution. He has relied on the judgment of this Court in D.S.
Nakara & Ors. Vs. Union of India[38]. Learned senior counsel also
reiterated that the classification between the establishment under
Section 33A and Section 33B is unreasonable.
82. The High Court, according to the learned senior counsel, has
wrongly accepted the explanation given by the appellants in their
affidavits that the classification is based on the type of dance
performed in the establishments. This, according to learned senior
counsel, is contrary to the provisions contained in the aforesaid
sections. He reiterated the submissions that the distinction
between the establishments is based not on the type of dance
performance but on the basis of class of such establishments. He
makes a reference to the affidavit in reply filed in Writ Petition
No.2450 of 2005 at paragraph 33 inter alia stated as follows :-
“Even otherwise five star hotels are class themselves and can’t
be compared with popularly known dance bars….the persons
visiting these hotels or establishments referred therein above
stand on different footing and can’t be compared with the people
who attend the establishments which are popularly known as dance
bar. They belong to different strata of society and are a class
by themselves.”
83. These observations, according to learned counsel, are contrary to
the decision of this Court in Sanjeev Coke Manufacturing Company
Vs. M/s Bharat Coking Coal Limited & Anr.[39] Mr. Grover has also
reiterated the submission that classification between Sections 33A
and 33B establishments has no rational nexus with the object
sought to be achieved by the impugned legislation. He submits that
whereas Section 33A prohibits any kind or type of dance
performance in eating house, permit room or beer bar, i.e., dance
bars, Section 33B allows all types and kinds of dances in
establishments covered under Section 33B. Learned senior counsel
further submits that the object of the impugned legislation is to
protect women from exploitation by prohibiting dances, which were
of indecent, obscene and vulgar type, derogatory to the dignity of
women and likely to deprave, corrupt or injure the public
morality, or morals. This is belied by the fact that all kinds of
dances are permitted in the exempted establishments covered under
Section 33B. He has also given the example that most of the Hindi
film songs or even dancing in discos are much more sexually
explicit than the clothes worn by the bar dancers.
84. Learned senior counsel further submitted that exploitation of
women is not limited only to dance bar. Such exploitation exists
in all forms of employment including factory workers, building
site workers, housemaids and even waitresses. In short, he
reiterated the submission that the legislation does not advance
the objects and reasons stated in the amendment Act. Mr. Grover
further submitted that the impugned law violates the principle of
proportionality. He has pointed out that gender stereotyping is
also palpable in the solution crafted by the legislature. The
impugned statute does not affect a man’s freedom to visit bars and
consume alcohol, but restricts a woman from choosing the
occupation of dancing in the same bars. The legislation,
patronizingly, seeks to ‘protect’ women by constraining their
liberty, autonomy and self-determination. Mr. Grover has also
reiterated the submission that Section 33A is violative of Article
19(1)(a) of the Constitution. According to Mr. Grover, restriction
imposed on the freedom of expression is not justified under
Article 19(6) of the Constitution. He submits that dancing in
eating houses, permit rooms or beer bars is not inherently
dangerous to public interest. Therefore, restrictions on the
freedom of speech and expression are wholly unwarranted. Mr.
Grover also emphasised that dancing is not inherently dangerous or
pernicious and cannot be treated akin to trades that are res extra
commercium. Bar dancers, therefore, have a fundamental right to
practice and pursue their profession/occupation of dancing in
eating houses, beer bars and permit rooms. The social evils
projected by the appellants, according to Mr. Grover,
are related to serving and drinking of alcohol and not dancing.
Therefore, there was no rational nexus in the law banning all
types of dances. He also emphasised that the women can be allowed
to work as waitresses to serve liquor and alcoholic drinks. There
could be no justification for banning the performance of dance by
them. Mr. Grover also submitted that the ban contained in Section
33A violates Article 21 of the Constitution. He submits that the
right to livelihood is an integral part of the right to life
guaranteed under Article 21 of the Constitution. The deprivation
of right to livelihood can be justified if it is according to
procedure established by law under Article 21. Such a law has to
be fair, just and reasonable both substantively and procedurally.
The impugned law, according to Mr. Grover, does not meet the test
of substantive due process. It does not provide any alternative
livelihood options to the thousands of bar dancers who have been
deprived of their legitimate source of livelihood. In the name of
protecting women from exploitation, it has sought to deprive more
than 75,000 women and their families from their livelihoods and
their only means of subsistence. Mr. Grover has submitted that
there is no viable rehabilitation or compensation provision
offered to the bar dancers, in order to tide over the loss of
income and employment opportunities. According to learned senior
counsel, in the last 7 years, the impact of the prohibition has
been devastating on the lives of the bar dancers and their
families. This has deprived the erstwhile bar dancers of a life
with dignity. In the present context, the dignity of bar dancers
(of persons) and dignity of dancing (work) has been conflated in a
pejorative way. According to Mr. Grover, the bar dancing in
establishments covered under Section 33A has been demeaned because
the dancers therein hail from socially and economically lower
castes and class. It is a class based discrimination which would
not satisfy the test of Article 14.
85. Lastly, he has submitted that the plea of trafficking would not be
a justification to sustain the impugned legislation. In fact,
trafficking is not even mentioned in the Statement of Objects and
Reasons, it was mentioned for the first time in the affidavit
filed by the State in reply to the writ petition. According to
learned senior counsel, the legislation has been rightly declared
ultra vires by the High Court.
86. We have considered the submissions made by the learned senior
counsel for the parties. We have also perused the pleadings and
the material placed before us.
87. The High Court rejected the challenge to the impugned Act on the
ground that the State legislature was not competent to enact the
amendment. The argument was rejected on the ground that the
amendment is substantially covered by Entries 2, 8, 33 and 64 of
List II. The High Court further observed that there is no
repugnancy between the powers conferred on the Centre and the
State under Schedule 7 List II and III of the Constitution of
India. The High Court also rejected the submissions that the
proviso to Section 33A (2) amounts to interference with the
independence of the judiciary on the ground that the legislature
is empowered to regulate sentencing by enactment of appropriate
legislation. Such exercise of legislative power is not uncommon
and would not interfere with the judicial power in conducting
trial and rendering the necessary judgment as to whether the guilt
has been proved or not. The submission that the affidavit filed by
Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered
because it was not verified in accordance with law was rejected
with the observations that incorrect verification is curable and
steps have been taken to cure the same. The submissions made in
Writ Petition 2450 of 2005 that the amendment would not apply to
eating houses and would, therefore, not be applicable in the
establishments of the petitioners therein was also rejected. It
was held that the “place of public interest” includes eating
houses which serve alcohol for public consumption. It was further
observed that the amendment covered even those areas in such
eating houses where alcohol was not served. The High Court also
rejected the challenge to the amendment that the same is in
violation of Article 15(1) of the Constitution of India. It has
been observed that dancing was not prohibited in the
establishments covered under Section 33B only on the ground of
sex. What is being prohibited is dancing in identified
establishments. The Act prohibits all types of dance in banned
establishments by any person or persons. There being no
discrimination on the basis of gender, the Act cannot be said to
violate Article 15(1) of the Constitution.
88. The High Court has even rejected the challenge to the impugned
amendment on the ground that the ban amounts to an unreasonable
restriction, on the fundamental right of the bar owners and bar
dancers, of freedom of speech and expression guaranteed under
Article 19(1)(a). The submission was rejected by applying the
doctrine of pith and substance. It has been held by the High Court
that dance performed by the bar dancers can not fall within the
term “freedom of speech and expression” as the activities of the
dancers are mainly to earn their livelihood by engaging in a trade
or occupation. Similarly, the submission that the provision in
Section 33A was ultra vires Article 21 of the Constitution of
India was rejected, in view of the ratio of this Court, in the
case of Sodan Singh & Ors. Vs. New Delhi Municipal Committee &
Ors.[40] wherein it is observed as follows :-
“We do not find any merit in the argument founded on Article 21
of the Constitution. In our opinion, Article 21 is not attracted
in a case of trade or business – either big or small. The right
to carry on any trade or business and the concept of life and
personal liberty within Article 21 are too remote to be
connected together.”
89. Since, no counter appeal has been filed by any of the respondents
challenging the aforesaid findings, it would not be appropriate
for us to opine on the correctness or otherwise of the aforesaid
conclusions.
90. However in order to be fair to learned senior counsel for the
respondents, we must notice that in the written submissions it was
sought to be argued that in fact the amendments are also
unconstitutional under Articles 15(1), 19(1)(a) and 21. Dr. Dhawan
has submitted that the High Court has erroneously recorded the
finding that the dancing in a bar is not an expression of dancers
but their profession, and, therefore, it can not get the
protection of Article 19(1)(a). Similarly, he had submitted that
the High Court in the impugned judgment has erroneously held that
the challenge to the amendment under Article 21 is too remote. The
respondents, therefore, would invite this Court to examine the
issue of “livelihood” under Article 142 of the Constitution of
India being “question of law of general public importance.
According to Dr. Dhawan, the High Court ought to have protected
the bar dancers under Articles 19(1)(a) and 21 also. As noticed
earlier, Mr. Rohatgi and Mr. Grover had made similar submissions.
We are, however, not inclined to examine the same in these
proceedings. No separate appeals have been filed by the
respondents specifically raising a challenge to the observations
adverse to them made by the High Court. We make it very clear that
we have not expressed any opinion on the correctness or otherwise
of the conclusions of the High Court with regard to Sections 33A
and 33B not being ultra vires Articles 15(1), 19(1)(a) and Article
21. We have been constrained to adopt this approach:
1) Because there was no challenge to the conclusions of the
High Court in appeal by respondents.
2) The learned senior counsel of the appellants had no
occasion to make submissions in support of the
conclusions recorded by the High Court.
3) We are not inclined to exercise our jurisdiction under
Article 142, as no manifest injustice has been caused to
the respondents. Nor can it be said that the conclusions
recorded by the High Court are palpably erroneous so as
to warrant interference, without the same having been
challenged by the respondents. We, therefore, decline the
request of Dr. Rajeev Dhawan.
91. This now brings us to the central issue as to whether the findings
recorded by the High Court that the impugned amendment is ultra
vires Article 14 and 19(1)(g) suffers from such a jurisdictional
error that they cannot be sustained.
Is the impugned legislation ultra vires Article 14?
92. Before we embark upon the exercise to determine as to whether the
impugned amendment Act is ultra vires Article 14 and 19(1)(g), it
would be apposite to notice the well established principles for
testing any legislation before it can be declared as ultra vires.
It is not necessary for us to make a complete survey of the
judgments in which the various tests have been formulated and re-
affirmed. We may, however, make a reference to the judgment of
this Court in Budhan Choudhry Vs. State of Bihar[41], wherein a
Constitution Bench of seven Judges of this Court explained the
true meaning and scope of Article 14 as follows :-
“It is now well established that while article 14 forbids class
legislation, it does not forbid reasonable classification for
the purposes of legislation. In order, however, to pass the test
of permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and
(ii) that that differentia must have a rational relation to the
object sought to be achieved by the statute in question. The
classification may be founded on different bases, namely,
geographical, or according to objects or occupations or the
like. What is necessary is that there must be a nexus between
the basis of classification and the object of the Act under
consideration. It is also well established by the decisions of
this Court that Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.”
93. The aforesaid principles have been consistently adopted and
applied in subsequent cases. In the case of Ram Krishna Dalmia
(supra), this Court reiterated the principles which would help in
testing the legislation on the touchstone of Article 14 in the
following words :
“(a) That a law may be constitutional even though it relates to
a single individual if on account of some special circumstances
or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself
(b) That there is always presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of
the constitutional principles;
(c) That it must he presumed that the legislature understands
and correctly appreciates the need of its own people, that its
laws are directed to problems made manifest by experience and
that its discriminations are based on adequate grounds;
(d) That the legislature is free to recognise degrees of harm
and may confine its restrictions to those cases where the need
is deemed to be the clearest;
(e) That in order to sustain the presumption of
constitutionality the court may take into consideration matters
of common knowledge, matters of common report, the history of
the times and may assume every state of facts which can he
conceived existing at the time of the legislation; and
(f) That while good faith and knowledge of the existing
conditions on the part of the legislature are to be presumed, if
there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the
classification may be reasonably be regarded as based, the
presumption of constitutionality cannot be carried to the extent
of always holding that there must be some undisclosed and
unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation."
(Italics are ours)
94. These principles were reiterated by this Court in Shashikant
Laxman Kale (supra). The relevant observations have already been
noticed in the earlier part of the judgment.
95. The High Court has held that the classification under Sections 33A
and 33B was rational because the type of dance performed in the
establishments allowed them to be separated into two distinct
classes. It is further observed that the classification does not
need to be scientifically perfect or logically complete.
96. The High Court has, however, concluded that classification by
itself is not sufficient to relieve a statute from satisfying the
mandate of the equality clause of Article 14. The amendment has
been nullified on the second limb of the twin test to be satisfied
under Article 14 of the Constitution of India that the amendment
has no nexus with the object sought to be achieved. Mr.
Subramanium had emphasised that the impugned enactment is based on
consideration of different factors, which would justify the
classification. We have earlier noticed the elaborate reasons
given by Mr. Subramanium to show that the dance performed in the
banned establishments itself takes a form of sexual
propositioning. There is revenue sharing generated by the tips
received by the dancers. He had also emphasised that in the
banned establishment women, who dance are not professional
dancers. They are mostly trafficked into dancing. Dancing,
according to him, is chosen as a profession of last resort, when
the girl is left with no other option. On the other hand, dancers
performing in the exempted classes are highly acclaimed and
established performer. They are economically independent.
Such performers are not vulnerable and, therefore, there
is least likelihood of any indecency, immorality or depravity. He
had emphasised that classification to be valid under Article 14
need not necessarily fall within an exact or scientific formula
for exclusion or inclusion of persons or things. [See: Welfare
Association, A.R.P., Maharashtra (supra)] There are no
requirements of mathematical exactness or applying doctrinaire
tests for determining the validity as long as it is not palpably
arbitrary. (See: Shashikant Laxman Kale & Anr. (supra)).
97. We have no hesitation in accepting the aforesaid proposition for
testing the reasonableness of the classification. However, such
classification has to be evaluated by taking into account the
objects and reasons of the impugned legislation; (See: Ram Krishna
Dalmia’s case supra). In the present case, judging the distinction
between the two sections upon the aforesaid criteria cannot be
justified.
98. Section 33(a)(i) prohibits holding of a performance of dance, of
any kind or type, in any eating house, permit room or beer bar.
This is a complete embargo on performance of dances in the
establishment covered under Section 33(a)(i). Section 33(a)
contains a non-obstante clause which makes the section stand alone
and absolutely independent of the act and the rules. Section
33(a)(ii) makes it a criminal offence to hold a dance performance
in contravention of sub-section(i). On
conviction, offender is liable to punishment for 3 years,
although, the Court may impose a lesser punishment of 3 months and
fine, after recording special reasons for the same. We are in
agreement with the submission of Dr. Dhawan that it is a
particularly harsh provision. On the other hand, the
establishments covered under Section 33B enjoy complete exemption
from any such restrictions. The dance performances are permitted
provided the establishments comply with the applicable statutory
provisions, Bye-Laws, Rules and Regulations. The classification
of the establishments covered under Sections 33A and 33B would not
satisfy the test of equality laid down in the case of State of
Jammu and Kashmir Vs. Shri Triloki Nath Khosa & Ors.[42], wherein
it was observed as under:
“Classification, therefore, must be truly founded on substantial
differences which distinguish persons grouped together from
those left out of the group and such differential attributes
must bear a just and rational relation to the object sought to
be achieved.”
99. Further, this Court in E.V. Chinnaiah Vs. State of A.P. & Ors.[43]
held that:
“Legal constitutional policy adumbrated in a statute must answer
the test of Article 14 of the Constitution of India.
Classification whether permissible or not must be judged on the
touchstone of the object sought to be achieved.”
100. Learned senior counsel for the appellants have sought to justify
the distinction between two establishments, first of all as
noticed earlier, on the basis of type of dance. It was emphasised
that the dance performed in the prohibited establishments, itself
takes a form of sexual propositioning. It was submitted that it
is not only just the type of dance performed but the surrounding
circumstances which have been taken into consideration in making
the distinction. The distinction is sought to be made under
different heads which we shall consider seriatim. It is emphasised
that in the banned establishments, the proximity between the
dancing platform and the audience is larger than at the banned
establishments. An assumption is sought to be made from this that
there would hardly be any access to the dancers in
the exempted establishments as opposed to the
easy access in the banned or prohibited establishments. Another
justification given is that the type of crowd that visits the
banned establishments is also different from the crowd that visits
the exempted establishments. In our opinion, all the aforesaid
reasons are neither supported by any empirical data nor common
sense. In fact, they would be within the realm of “myth” based on
stereotype images. We agree with the submission made by the
learned counsel for the appellant, Mr. Mukul Rohtagi and Dr.
Dhawan that the distinction is made on the grounds of “classes of
establishments” or “classes of persons, who frequent the
establishment.” and not on the form of dance. We
also agree with the submission of the learned senior counsel for
the respondents that there is no justification that a dance
permitted in exempted institutions under Section 33B, if
permitted in the banned establishment, would be derogatory,
exploitative or corrupting of public morality. We are of the firm
opinion that a distinction, the foundation of which is classes of
the establishments and classes/kind of persons, who frequent the
establishment and those who own the establishments can not be
supported under the constitutional philosophy so clearly stated in
the Preamble of the Constitution of India and the individual
Articles prohibiting discrimination on the basis of caste, colour,
creed, religion or gender. The Preamble of the Constitution of
India as also Articles 14 to 21, as rightly observed in the
Constitutional Bench Judgment of this Court in I.R. Coelho
(supra), form the heart and soul of the Constitution. Taking away
of these rights of equality by any legislation would require clear
proof of the justification for such abridgment. Once the
respondents had given prima facie proof of the arbitrary
classification of the establishments under Sections 33A and 33B,
it was duty of the State to justify the reasonableness of the
classification. This conclusion of ours is fortified by the
observations in M/s. Laxmi Khandsari (supra), therein
this Court observed as follow:
“14. We, therefore, fully agree with the contention advanced by
the petitioners that where there is a clear violation of Article
19(1)(g), the State has to justify by acceptable evidence,
inevitable consequences or sufficient materials that the
restriction, whether partial or complete, is in public interest
and contains the quality of reasonableness. This proposition has
not been disputed by the counsel for the respondents, who have,
however, submitted that from the circumstances and materials
produced by them the onus of proving that the restrictions are
in public interest and are reasonable has been amply discharged
by them.”
101. In our opinion, the appellants herein have failed to satisfy the
aforesaid test laid down by this court. The Counsel for the
appellant had, however, sought to highlight before us the
unhealthy practice of the customers showering money on the dancers
during the performance, in the prohibited establishments. This
encourages the girls to indulge in unhealthy competition to create
and sustain sexual interest of the most favoured customers. But
such kind of behaviour is absent when the dancers are performing
in the exempted establishments. It was again emphasised that it is
not only the activities performed in the establishments covered
under Section 33 A, but also the surrounding circumstances which
are calculated to produce an illusion of easy access to women. The
customers who would be inebriated would pay little heed to the
dignity or lack of consent of the women. This conclusion is
sought to be supported by a number of complaints received and as
well as case histories of girl children rescued from the dance
bars. We are again not satisfied that the conclusions reached by
the state are based on any rational criteria. We fail to see how
exactly the same dances can be said to be morally acceptable in
the exempted establishments and
lead to depravity if performed in the
prohibited establishments. Rather it is evident that the same
dancer can perform the same dance in the high class hotels, clubs,
and gymkhanas but is prohibited of doing so in the establishments
covered under Section 33A. We see no rationale which would justify
the conclusion that a dance that leads to depravity in one place
would get converted to an acceptable performance by a mere change
of venue. The discriminatory attitude of the state is
illustrated by the fact that an infringement of section 33A(1) by
an establishment covered under the aforesaid provision would
entail the owner being liable to be imprisoned for three years by
virtue of section 33A(2). On the other hand, no such punishment is
prescribed for establishments covered under Section 33B. Such an
establishment would merely lose the licence. Such blatant
discrimination cannot possibly be justified on the criteria of
reasonable classification under Article 14 of the Constitution
of India. Mr. Subramaniam had placed strong reliance on the
observations made by the Court in the State of Uttar Pradesh Vs.
Kaushailiya & Ors. (supra), wherein it was observed as follows:
“7. The next question is whether the policy so disclosed offends
Article 14 of the Constitution. It has been well settled that
Article 14 does not prohibit reasonable classification for the
purpose of legislation and that a law would not be held to
infringe Article 14 of the Constitution if the classification is
founded on an intelligible differentia and the said differentia
has a rational relation to the object sought to be achieved by
the said law. The differences between a woman who is a
prostitute and one who is not certainly justify their being
placed in different classes. So too, there are obvious
differences between a prostitute who is a public nuisance and
one who is not. A prostitute who carries on her trade on the sly
or in the unfrequented part of the town or in a town with a
sparse population may not so dangerous to public health or
morals as a prostitute who lives in a busy locality or in an
over-crowded town or in a place within the easy reach of public
institutions like religious and educational institutions. Though
both sell their bodies, the latter is far more dangerous to the
public, particularly to the younger generation during the
emotional stage of their life. Their freedom of uncontrolled
movement in a crowded locality or in the vicinity of public
institutions not only helps to demoralise the public morals,
but, what is worse, to spread diseases not only affecting the
present generation, but also the future ones. Such trade in
public may also lead to scandals and unseemly broils. There are,
therefore, pronounced and real differences between a woman who
is a prostitute and one who is not, and between a prostitute,
who does not demand in public interests any restrictions on her
movements and a prostitute, whose actions in public places call
for the imposition of restrictions on her movements and even
deporation. The object of the Act, as has already been noticed,
is not only to suppress immoral traffic in women and girls, but
also to improve public morals by removing prostitute from busy
public places in the vicinity of religious and educational
institutions. The differences between these two classes of
prostitutes have a rational relation to the object sought to be
achieved by the Act.”
102. We fail to see how any of the above observations are of relevance
in present context. The so called distinction is based purely
on the basis of the class of the performer and the so called
superior class of audience. Our judicial conscience would not
permit us to presume that the class to which an individual or the
audience belongs brings with him as a necessary
concomitant a particular kind of morality or decency. We are
unable to accept the presumption which runs through Sections
33A and 33B that the enjoyment of same kind of entertainment by
the upper classes leads only to mere enjoyment and in the case of
poor classes; it would lead to immorality, decadence and
depravity. Morality and depravity cannot be pigeon-holed
by degrees depending upon the classes of the audience. The
aforesaid presumption is also perplexing on the ground that in the
banned establishments even a non-obscene dance would be treated as
vulgar. On the other hand, it would be presumed that in the
exempted establishments any dance is non-obscene. The underlying
presumption at once puts the prohibited establishments in a
precarious position, in comparison to the exempted class for the
grant of a licence to hold a dance performance. Yet at the same
time, both kinds of establishments are to be granted licenses and
regulated by the same restrictions, regulations and standing
provisions.
103. We, therefore, decline to accept the submission of Mr.
Subramaniam that the same kind of dances performed in the exempted
establishments would not bring about sexual arousal
in male audience as opposed to the male audience frequenting the
banned establishments meant for the lower classes having lesser
income at their disposal. In our opinion, the presumption is
elitist, which cannot be countenanced under the egalitarian
philosophy of our Constitution. Our Constitution makers have taken
pains to ensure that equality of treatment in all spheres is given
to all citizens of this country irrespective of their station in
life. {See: Charanjit Lal Chowdhury Vs. Union of India & Ors.
(supra), Ram Krishna Dalmia’s case (supra) and State of Uttar
Pradesh Vs. Kaushailiya & Ors. (supra)}. In our opinion, sections
33A and 33B introduce an invidious discrimination which cannot be
justified under Article 14 of the Constitution.
104. The High Court, in our opinion, has rightly declined to rely upon
the Prayas and Shubhada Chaukar’s report. The number of
respondents interviewed was so miniscule as to render both the
studies meaningless. As noticed earlier, the subsequent report
submitted by SNDT University has substantially contradicted the
conclusions reached by the other two reports. The situation herein
was not similar to the circumstances which led to the decision in
the case of Radice (supra). In that case, a New York Statute was
challenged as it prohibited employment of women in restaurants in
cities of first and second class between hours of 10 p.m. and 6
a.m., on the ground of (1) due process clause, by depriving the
employer and employee of their liberty to contract, and (2) the
equal protection clause by an unreasonable and arbitrary
classification. The Court upheld the legislation on the first
ground that the State had come to the conclusion that night work
prohibited, so injuriously threatens to impair women’s peculiar
and natural functions. Such work, according to the State, exposes
women to the dangers and menaces incidental to night life in large
cities. Therefore, it was permissible to enable the police to
preserve and promote the public health and welfare. The aforesaid
conclusion was, however, based on one very important factor which
was that “the legislature had before it a mass of information from
which it concluded that night work is substantially and especially
detrimental to the health of women.” In our opinion, as pointed
out by the learned counsel for the respondents, in the present
case, there was little or no material on the basis of which the
State could have concluded that dancing in the prohibited
establishments was likely to deprave, corrupt or injure the public
morality or morals.
105. The next justification for the so called intelligible differentia
is on the ground that women who perform in the banned
establishment are a vulnerable lot. They come from grossly
deprived backgrounds. According to the appellants, most of them
are trafficked into bar dancing. We are unable to accept the
aforesaid submission. A perusal of the Objects and the Reasons
would show that the impugned legislation proceed on a hypothesis
that different dance bars are being used as meeting points of
criminals and pick up points of the girls. But the Objects and
Reasons say nothing about any evidence having been presented to
the Government that these dance bars are actively involved in
trafficking of women. In fact, this plea with regard to
trafficking of women was projected for the first time in the
affidavit filed before the High Court. The aforesaid plea seems
to have been raised only on the basis of the reports which were
submitted after the ban was imposed. We have earlier noticed the
extracts from the various reports. In our opinion, such isolated
examples would not be sufficient to establish the connection of
the dance bars covered under section 33A with trafficking. We,
therefore, reject the submission of the appellants that the ban
has been placed for the protection of the vulnerable women.
106. The next justification given by the learned counsel for the
appellants is on the basis of degree of harm which is
being caused to the atmosphere in the banned establishments and
the surrounding areas. Undoubtedly as held by this Court in the
Ram Krishna Dalmia’s case (supra), the Legislature is free to
recognize the degrees of harm and may confine its restrictions to
those cases where the need is deemed to be clearest. We also agree
with the observations of the U.S. Court in Joseph Patsone’s case
(supra) that the state may direct its law against what it deems
the evil as it actually exists without covering the whole field of
possible abuses, but such conclusion have to be reached either on
the basis of general consensus shared by the majority of the
population or on the basis of empirical data. In our opinion, the
State neither had the empirical data to conclude that
dancing in the prohibited establishment necessarily leads to
depravity and corruption of public morals nor was there general
consensus that such was the situation. The three reports
presented before the High Court in fact have presented divergent
view points. Thus, the observations made in the case of Joseph
Patsone (supra) are not of any help to the appellant. We are also
conscious of the observations made by this court in case of Mohd.
Hanif Quareshi (supra), wherein it was held that there is a
presumption that the legislature understands and appreciates the
needs of its people and that its laws are directed to problems
made manifest by experience and that its discriminations are based
on adequate grounds. In the present case, the appellant has failed
to give any details of any experience which would justify such
blatant discrimination, based purely on the class or location of
an establishment.
107. We are of the opinion that the State has failed to justify the
classification between the exempted establishments and prohibited
establishments on the basis of surrounding circumstances; or
vulnerability. Undoubtedly, the legislature is the best judge to
measure the degree of harm and make reasonable classification but
when such a classification is challenged the State is duty bound
to disclose the reasons for the ostensible conclusions. In our
opinion, in the present case, the legislation is based on an
unacceptable presumption that the so called elite i.e. rich and
the famous would have higher standards of decency, morality or
strength of character than their counter parts who have to content
themselves with lesser facilities of inferior quality in the dance
bars. Such a presumption is abhorrent to the resolve in the
Preamble of the Constitution to secure the citizens of India.
“Equality of status and opportunity and dignity of the
individual”. The State Government presumed that the performance of
an identical dance item in the establishments having facilities
less than 3 stars would be derogative to the dignity
of women and would be likely to deprave, corrupt or injure public
morality or morals; but would not be so in the exempted
establishments. These are misconceived motions of a bygone era
which ought not to be resurrected.
108. Incongruously, the State does not find it to be indecent,
immoral or derogatory to the dignity of women if they take up
other positions in the same establishments such as receptionist,
waitress or bar tender. The women that serve liquor and beer to
customers do not arouse lust in customers but women dancing would
arouse lust. In our opinion, if certain kind of dance is sensuous
in nature and if it causes sexual arousal in men it cannot be said
to be more in the prohibited establishments and less in the
exempted establishments. Sexual arousal and lust in men and women
and degree thereof, cannot be said to be monopolized by the upper
or the lower classes. Nor can it be presumed that sexual arousal
would generate different character of behaviour, depending on the
social strata of the audience. History is replete with examples of
crimes of lust committed in the highest echelons of the society as
well as in the lowest levels of society. The High Court has
rightly observed, relying on the observations of this Court in
Gaurav Jain Vs. Union of India[44], that “prostitution in 5 star
hotels is a licence given to a person from higher echelon”. In
our opinion, the activities which are obscene or which are likely
to deprave and corrupt those whose minds are open to such immoral
influences, cannot be distinguished on the basis as to whether
they are performing in 5 star hotels or in dance bars. The
judicial conscience of this Court would not give credence to a
notion that high morals and decent behaviour is the exclusive
domain of the upper classes; whereas vulgarity and depravity is
limited to the lower classes. Any classification made on the
basis of such invidious presumption is liable to be struck down
being wholly unconstitutional and particularly contrary to Article
14 of the Constitution of India.
Is the impugned legislation ultra vires Article 19(1)(g) –
109. It was submitted by the learned counsel for the appellants
that by prohibiting dancing under Section 33A, no right of the bar
owners for carrying on a business/profession is being
infringed [See: Fertilizer Corporation Kamgar Union (Regd.),
Sindri & Ors. (supra)]. The curbs are imposed by Section 33A and
33B only to restrict the owners in the prohibited establishments
from permitting dance to be conducted in the interest of general
public. Since the dances conducted in establishments covered under
Section 33A were obscene, they would fall in the category of res
extra commercium and would not be protected by the fundamental
right under Article 19(1)(g). The submission is also sought to be
supported by placing a reliance on the reports of Prayas and
Subhada Chaukar. The restriction is also placed to curb
exploitation of the vulnerability of the young girls who come from
poverty stricken background and are prone to trafficking. In
support of the submission, the learned counsel relied on a number
of judgments of this Court as well as the American Courts,
including Municipal Corporation of the City of Ahmedabad (supra),
wherein it was held that the expression “in the interest of
general public” under Article 19(6) inter alia includes protecting
morality. The relationship between law and morality has been the
subject of jurisprudential discourse for centuries. The questions
such as: Is the development of law influenced by morals? Does
morality always define the justness of the law? Can law be
questioned on grounds of morality? and above all, Can morality be
enforced through law?, have been subject matter of many
jurisprudential studies for over at least a century and half. But
no reference has been made to any such studies by any of the
learned senior counsel. Therefore, we shall not dwell on the same.
110. Upon analyzing the entire fact situation, the High Court has held
that dancing would be a fundamental right and cannot be excluded
by dubbing the same as res extra commercium. The State has failed
to establish that the restriction is reasonable or that it is in
the interest of general public. The High Court rightly scrutinized
the impugned legislation in the light of observations of this
Court made in Narendra Kumar (supra), wherein it was held that
greater the restriction, the more the need for scrutiny. The High
Court noticed that in the guise of regulation, the legislation has
imposed a total ban on dancing in the establishments covered under
Section 33A. The High Court has also concluded that the
legislation has failed to satisfy the doctrine of direct and
inevitable effect [See: Maneka Gandhi’s case (supra)]. We see no
reason to differ with the conclusions recorded by the High Court.
We agree with Mr. Rohatgi and Dr. Dhawan that there are already
sufficient rules and regulations and legislation in place which,
if efficiently applied, would control if not eradicate all the
dangers to the society enumerated in the Preamble and Objects and
Reasons of the impugned legislation.
111. The activities of the eating houses, permit rooms and beer bars
are controlled by the following regulations:
A. Bombay Municipal Corporation Act.
B. Bombay Police Act, 1951.
C. Bombay Prohibition Act, 1949.
D. Rules for Licensing and Controlling Places of Public
Entertainment, 1953.
E. Rules for Licensing and controlling Places of Public
Amusement other that Cinemas.
F. And other orders are passed by the Government from time
to time.
112. The Restaurants/Dance Bar owners also have to obtain
licenses/permissions as listed below:
i. Licence and Registration for eating house under the
Bombay Police Act, 1951.
ii. License under the Bombay Shops and Establishment Act,
1948 and the Rules thereunder.
iii. Eating House license under Sections 394, 412A, 313 of the
Bombay Municipal Corporation Act, 1888.
iv. Health License under the Maharashtra Prevention of Food
Adulteration Rules, 1962.
v. Health License under the Mumbai Municipal Corporation
Act, 1888 for serving liquor;
vi. Performance License under Rules 118 of the Amusement
Rules, 1960 ;
vii. Premises license under Rules 109 of the amusement Rules;
viii. License to keep a place of Public Entertainment
under Section 33(1), clause (w) and (y) of the Bombay
Police Act, 1951 and the said Entertainment Rules;
ix. FL III License under the Bombay Prohibition Act, 1949 and
the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or
a Form “E” license under the Special Permits & Licenses
Rules for selling or serving IMFL & Beer.
x. Suitability certificate under the Amusement Rules.
113. Before any of the licenses are granted, the applicant has to
fulfil the following conditions :
(i) Any application for premises license shall accompanied by
the site-plan indicating inter-alia the distance of the
site from any religious, educational institution or
hospital.
(ii) The distance between the proposed place of amusement and
the religious place or hospital or educational
institution shall be more than 75 metres.
(iii) The proposed place of amusement shall not have been
located in the congested and thickly populated area.
(iv) The proposed site must be located on a road having width
of more than 10 metres.
(v) The owners/partners of the proposed place of amusement
must not have been arrested or detained for anti-social
or any such activities or convicted for any such
offenses.
(vi) The distance between two machines which are to be
installed in the video parlour shall be reflected in the
plan.
(vii) No similar place of public amusement exists within
a radius of 75 metres.
(b) The conditions mentioned in the license shall be
observed throughout the period for which the license is
granted and if there is a breach of any one of the
conditions, the license is likely to be cancelled after
following the usual procedure.
114. The aforesaid list, enactments and regulations are further
supplemented with regulations protecting the dignity of women. The
provisions of Bombay Police Act, 1951 and more particularly
Section 33(1)(w) of the said Act empowers the Licensing Authority
to frame Rules ‘”licensing or controlling places of public
amusement or entertainment and also for taking necessary steps to
prevent inconvenience to residents or passers-by or for
maintaining public safety and for taking necessary steps in the
interests of public order, decency and morality.”
115. Rules 122 and 123 of the Amusement Rules, 1960 also prescribe
conditions for holding performances.
“Rule 122 – Acts prohibited by the holder of a Performance
Licence : No person holding a performance Licence under these
Rules shall, in the beginning, during any interval or at the end
of any performance, or during the course of any performance,
exhibition, production, display or staging, permit or himself
commit on the stage or any part of the auditorium :-
(a) any profanity or impropriety of language ;
(b) any indecency of dress, dance, movement or gesture;
Similar conditions and restrictions are also prescribed under
the Performance Licence :
“The Licensee shall not, at any time before, during the course
of or subsequent to any performance, exhibition, production,
display or staging, permit or himself commit on the stage or in
any part of the auditorium or outside it :
(i) any exhibition or advertisement whether by way of
posters or in the newspapers, photographs of nude or
scantily dressed women;
(ii) any performance at a place other than the place
provided for the purpose;
(iii) any mixing of the cabaret performers with the
audience or any physical contact by touch or otherwise with
any member of the audience;
(iv) any act specifically prohibited by the rules.”
116. The Rules under the Bombay Police Act, 1951 have been framed in
the interest of public safety and social welfare and to safeguard
the dignity of women as well as prevent exploitation of women.
There is no material placed on record by the State to show that it
was not possible to deal with the situation within the framework
of the existing laws except for the unfounded conclusions recorded
in the Preamble as well the Objects and Reasons. [See: State of
Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra)], wherein
it is held that the standard of judging reasonability of
restriction or restrictions amounting to prohibition remains the
same, except that a total prohibition must also satisfy the test
that a lesser alternative would be inadequate]. The Regulations
framed under Section 33(w) of the Bombay Police Act, more so
Regulations 238 and 242 provide that the licensing authority may
suspend or cancel a licence for any breach of the license
conditions. Regulation 241 empowers the licensing authority or any
authorised Police Officer, not below the rank of Sub Inspector, to
direct the stoppage of any performance forthwith if the
performance is found to be objectionable. Section 162 of the
Bombay Police Act empowers a Competent Authority/Police
Commissioner/District Magistrate to suspend or revoke a license
for breach of its conditions. Thus, sufficient power is vested
with the Licensing Authority to safeguard any perceived violation
of the dignity of women through obscene dances.
117. From the objects of the impugned legislation and amendment itself,
it is crystal clear that the legislation was brought about on the
admission of the police that it is unable to effectively control
the situation in spite of the existence of all the necessary
legislation, rules and regulations. One of the submissions made
on behalf of the appellants was to the effect that it is possible
to control the performances which are conducted in the
establishments fall within Section 33B; the reasons advanced for
the aforesaid only highlight the stereotype myths that people in
upper strata of society behave in orderly and moralistic manner.
There is no independent empirical material to show that propensity
of immorality or depravity would be any less in these high class
establishments. On the other hand, it is the specific submission
of the appellants that the activities conducted within the
establishments covered under Section 33A have the effect of
vitiating the atmosphere not only within the establishments but
also in the surrounding locality. According to the learned counsel
for the appellants, during dance in the bars dancers wore
deliberately provocative dresses. The dance becomes even more
provocative and sensual when such behaviour is mixed with alcohol.
It has the tendency to lead to undesirable results. Reliance was
placed upon State of Bombay Vs. R.M.D. Chamarbaugwala & Anr.
(supra), Khoday Distilleries Ltd. & Ors. Vs. State of Karnataka &
Ors. (supra), State of Punjab & Anr. Vs. Devans Modern Breweries
Ltd. & Anr. (supra), New York State Liquor Authority Vs. Dennis
BELLANCA, DBA The Main Event, Et Al.(supra), Regina Vs. Bloom
(supra) to substantiate the aforesaid submissions. Therefore,
looking at the degree of harm caused by such behaviour, the State
enacted the impugned legislation.
118. We are undoubtedly bound by the principles enunciated by this
Court in the aforesaid cases, but these are not applicable to the
facts and circumstances of the present case. In Khoday
Distilleries Ltd. (supra), it was held that there is no
fundamental right inter alia to do trafficking in women or in
slaves or to carry on business of exhibiting and publishing
pornographic or obscene films and literature. This case is
distinguishable because the unfounded presumption that women are
being/were trafficked in the bars. The case of State of Punjab &
Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with
liquor trade, whereas the present case is clearly different. The
reliance on New York State Liquor Authority (supra) is completely
unfounded because in that case endeavour of the State was directed
towards prohibiting topless dancing in an establishment licensed
to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with
indecent performances in a disorderly house. Hence, this case will
also not help the appellants. Therefore, we are not impressed with
any of these submissions. All the activities mentioned above can
be controlled under the existing regulations.
119. We do not agree with the submission of Mr.
Subramanium that the impugned enactment is a form of additional
regulation, as it was felt that the existing system of licence and
permits were insufficient to deal with problem of ever increasing
dance bars. We also do not agree with the submissions that whereas
exempted establishments are held to standards higher than those
prescribed; the eating houses, permit rooms and dance bars operate
beyond/below the control of the regulations. Another justification
given is that though it may be possible to regulate these permit
rooms and dance bars which are located within Mumbai, it would not
be possible to regulate such establishments in the semi-urban and
rural parts of the Maharashtra. If that is so, it is a sad
reflection on the efficiency of the Licensing/Regulatory
Authorities in implementing the legislation.
120. The end result of the prohibition of any form of dancing in the
establishments covered under Section 33A leads to the only
conclusion that these establishments have to shut down. This is
evident from the fact that since 2005, most if not all the dance
bar establishments have literally closed down. This has led to the
unemployment of over 75,000 women workers. It has been brought on
the record that many of them have been compelled to take up
prostitution out of necessity for maintenance of their families.
In our opinion, the impugned legislation has proved to be totally
counter productive and cannot be sustained being ultra vires
Article 19(1)(g).
121. We are also not able to agree with the submission of Mr.
Subramanium that the impugned legislation can still be protected
by reading down the provision. Undoubtedly, this Court in the case
of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)
(supra) upon taking notice of the previous precedents has held
that the legislature must be given freedom to do experimentations
in exercising its powers, provided it does not clearly and
flagrantly violate its constitutional limits, these observations
are of no avail to the appellants in view of the opinion expressed
by us earlier. It is not possible to read down the expression “any
kind or type” of dance by any person to mean dances which are
obscene and derogatory to the dignity of women. Such reading down
cannot be permitted so long as any kind of dance is permitted in
establishments covered under Section 33B.
122. We are also unable to accept the submission of Mr.
Subramanium that the provisions contained in Section 33A can be
declared constitutional by applying the doctrine of severability.
Even if Section 33B is declared unconstitutional, it would still
retain the provision contained in Section 33A which prohibits any
kind of dance by any person in the establishments covered under
Section 33A.
123. In our opinion, it would be more appropriate that the State
Government re-examines the recommendations made by the Committee
which had been constituted by the State Government comprising of a
Chairman of AHAR, Public and Police Officials and chaired by the
Principal Secretary (E.I.), Home Department. The Committee had
prepared a report and submitted the same to the State Government.
The State Government had in fact sent a communication dated 16th
July, 2004 to all District Judicial Magistrates and Police
Commissioner to amend the rules for exercising control on Hotel
Establishments presenting dance programmes. The suggestions made
for the amendment of the Regulations were as follows :
(1) Bar girls dancing in dance bars should not wear clothes
which expose the body and also there should be
restriction on such dancers wearing tight and provocative
clothes.
(2) There should be a railing of 3 ft. height adjacent to the
dance stage. There should be distance of 5 ft. between
the railing and seats for the customers. In respect of
dance bars who have secured licences earlier, provisions
mentioned above be made binding. It should be made
binding on dance bars seeking new licences to have
railing of 3 ft. height adjacent to the stage and leaving
a distance of 5 ft. between the railing and sitting
arrangement for customers.
(3) Area of dance floor should be minimum 10 x 12 ft. i.e.
120 sq. ft. and the area to be provided for such dancer
should be minimum of 15 sq. ft. so that more than 8
dancers cannot dance simultaneously on the stage having
area of 12- sq. ft.
(4) If the dancers are to be awarded, there should be a ban
on going near them or on showering money on them. Instead
it should be made binding to collect the said money in
the name of manager of the concerned dancer or to hand
over to the manager.
(5) Apart from the above, a register should be maintained in
the dance bar to take entries of names of the girls
dancing in the bar every day. Similarly, holders of the
establishment should gather information such a name,
address, photograph and citizenship and other necessary
information of the dance girls. Holder of the
establishment should be made responsible to verify the
information furnished by the dance girls. Also above
conditions should be incorporated in the licences being
granted.
124. Despite the directions made by the State Government, the
authorities have not taken steps to implement the recommendations
which have been submitted by AHAR. On the contrary, the impugned
legislation was enacted in 2005. In our opinion, it would be more
appropriate to bring about measures which should ensure the safety
and improve the working conditions of the persons working as bar
girls. In similar circumstances, this Court in the case of Anuj
Garg (supra) had made certain observations indicating that instead
of putting curbs on women’s freedom, empowerment would be more
tenable and socially wise approach. This empowerment should
reflect in the law enforcement strategies of the State as well as
law modeling done in this behalf. In our opinion, in the present
case, the restrictions in the nature of prohibition cannot be said
to be reasonable, inasmuch as there could be several lesser
alternatives available which would have been adequate to ensure
safety of women than to completely prohibit dance. In fact, a
large number of imaginative alternative steps could be taken
instead of completely prohibiting dancing, if the real concern of
the State is the safety of women.
125. Keeping in view the aforesaid circumstances, we are not inclined
to interfere with the conclusions reached by the High Court.
Therefore, we find no merit in these appeals and the same are
accordingly dismissed.
126. All interim orders are hereby vacated.
…………………………CJI.
[Altamas Kabir]
…………………………….J.
[Surinder Singh Nijjar]
New Delhi;
July 16, 2013.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2705 OF 2006
1 State of Maharashtra & Anr. … Appellants
Vs.
2 Indian Hotel & Restaurants Assn.
3 & Ors. … Respondents
4 WITH
5
6 Civil Appeal No. 2704 of 2006
7 and
8 Civil Appeal No.5504 of 2013
9 [Arising out of S.L.P. (C) No. 14534 of 2006]
10
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Having had an opportunity of going through the masterly exposition of
the law in the crucible of facts relating to the violation of the
provisions of Articles 19(1)(a), 19(1)(g) and 21 of the Constitution read
with the relevant provisions of the Bombay Police Act, 1951, I wish to pen
down some of my thoughts vis-a-vis the problem arising in all these matters
requiring the balancing of equities under Articles 19(1)(g) and 21 of the
Constitution.
2. The expression “the cure is worse than the disease” comes to mind
immediately.
3. As will appear from the judgment of my learned Brother, Justice
Nijjar, the discontinuance of bar dancing in establishments below the rank
of three star establishments, has led to the closure of a large number of
establishments, which has resulted in loss of employment for about seventy-
five thousand women employed in the dance bars in various capacities. In
fact, as has also been commented upon by my learned Brother, many of these
unfortunate people were forced into prostitution merely to survive, as they
had no other means of survival.
4. Of course, the right to practise a trade or profession and the right
to life guaranteed under Article 21 are, by their very nature, intermingled
with each other, but in a situation like the present one, such right cannot
be equated with unrestricted freedom like a run-away horse. As has been
indicated by my learned Brother, at the very end of his judgment, it would
be better to treat the cause than to blame the effect and to completely
discontinue the livelihood of a large section of women, eking out an
existence by dancing in bars, who will be left to the mercy of other forms
of exploitation. The compulsion of physical needs has to be taken care of
while making any laws on the subject. Even a bar dancer has to satisfy her
hunger, provide expenses for her family and meet day to day expenses in
travelling from her residence to her place of work, which is sometimes even
as far as 20 to 25 kms. away. Although, it has been argued on behalf of
the State and its authorities that the bar dancers have taken to the
profession not as an extreme measure, but as a profession of choice, more
often than not, it is a Hobson's choice between starving and in resorting
to bar dancing. From the materials placed before us and the statistics
shown, it is apparent that many of the bar dancers have no other option as
they have no other skills, with which they could earn a living. Though
some of the women engaged in bar dancing may be doing so as a matter of
choice, not very many women would willingly resort to bar dancing as a
profession.
5. Women worldwide are becoming more and more assertive of their rights
and want to be free to make their own choices, which is not an entirely
uncommon or unreasonable approach. But it is necessary to work towards a
change in mindset of people in general not only by way of laws and other
forms of regulations, but also by way of providing suitable amenities for
those who want to get out of this trap and to either improve their existing
conditions or to begin a new life altogether. Whichever way one looks at
it, the matter requires the serious attention of the State and its
authorities, if the dignity of women, as a whole, and respect for them, is
to be restored. In that context, the directions given by my learned
Brother, Justice Nijjar, assume importance.
6. I fully endorse the suggestions made in paragraph 123 of the judgment
prepared by my learned Brother that, instead of generating unemployment, it
may be wiser for the State to look into ways and means in which reasonable
restrictions may be imposed on bar dancing, but without completely
prohibiting or stopping the same.
7. It is all very well to enact laws without making them effective. The
State has to provide alternative means of support and shelter to persons
engaged in such trades or professions, some of whom are trafficked from
different parts of the country and have nowhere to go or earn a living
after coming out of their unfortunate circumstances. A strong and
effective support system may provide a solution to the problem.
8. These words are in addition to and not in
derogation of the judgment delivered by my learned Brother.
...................CJI.
(ALTAMAS KABIR)
New Delhi
Dated: July 16, 2013.
-----------------------
[1] (1990) 4 SCC 366
[2] (2003) 9 SCC 358
[3] AIR 1964 SC 416
[4] AIR 1958 SC 538
[5] 232 U.S. 138 (1914)
[6] 234 U.S.224 (1913)
[7] 264 U.S. 292 (1924)
[8] AIR 1958 SC 731
[9] (1983) 1 SCC 51
[10] 413 U.S. 49 [1973]
[11] 1954 SCR 30
[12] AIR 2006 SC 212
[13] (1986) 3 SCC 20
[14] [1953] 4 SCR 290
[15] AIR 1957 SC 699
[16] (1995) 1 SCC 574
[17] (2004) 11 SCC 26
[18] 452 U.S. 714 (1981)
[19] 1961 3 W.L.R. 611
[20] AIR 1981 SC 344
[21] AIR 1952 SC 196
[22] (2003) 7 SCC 309
[23] (1998) 8 SCC 227
[24] (1995) 6 SCC 289
[25] AIR 1951 SC 41
[26] (1997) 2 SCC 453
[27] (2008) 4 SCC 720
[28] AIR 1962 SC 955
[29] (2007) 2 SCC 1
[30] (1962) 3 SCR 842
[31] (2008) 3 SCC 1
[32] (1995) 4 SCC 520
[33] (1981) 2 SCC 600
[34] (1960) 2 SCR 375
[35] (1970) 1 SCC 248
[36] (1978) 1 SCC 248
[37] (2001) 7 SCC 630
[38] (1983) 1 SCC 305
[39] (1983) 1 SCC 147
[40] (1989) 4 SCC 155
[41] AIR 1955 SC 191
[42] (1974) 1 SCC 19
[43] (2005) 1 SCC 394
[44] (1997) 8 SCC 114
