FOURM AGAINST OPPRESSION OF WOMEN AND ORS. vs. STATE OF MAHARASHTRA AND ANR.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WRIT PETITION NO.2450 OF 2005 WRIT WRIT PETITION NO.2450 OF 2005 PETITION NO.2450 OF 2005
(ORDINARY ORIGINAL CIVIL JURISDICTION)
Indian Hotel & Restaurants )
Association (AHAR), an )
Association duly registered )
under the provisions of )
the Trade Unions Act,bearing )
No.BB-11-7920, having its )
office at B-2, Wadala Shri Ram)
Industrial Estate, Ground )
Floor, G.D. Ambedkar Road, )
Near Wadala Telephone Exchange)
Wadala, Mumbai-400 031. )
2.Jagdish V. Shetty, General )
Secretary ofIndian Hotel & )
Restaurants ) Association )
(AHAR), an ) Association duly )
registered under the provisions )
of the Trade Unions Act, )
bearing No.BY-11-7920, having )
its office ) at B-2, Wadala )
Shri Ram Industrial Estate, )
Ground Floor, G.D. Ambedkar )
Road, Near Wadala Telephone)
Exchange, Wadala,Mumbai-400 031)..PETITIONERS
Versus
1.The State of Maharashtra )
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through the Hon’ble Minister, )
Home Affairs, Home Department, )
Mantralaya, Mumbai-400 032. )
2.The Commissioner of Police, )
having his office at Opp.Crawford)
Market, Mumbai-1. )..RESPONDENTS
WITH WITH WITH
WRIT PETITION LODGING NO.2052 OF 2005 WRIT WRIT PETITION LODGING NO.2052 OF 2005 PETITION LODGING NO.2052 OF 2005
(ORDINARY ORIGINAL CIVIL JURISDICTION)
Bharatiya Bargirls Union, )
a Registered Trade Union, )
through its Honorary President )
Varsha Kale, having its office )
at D-3, 303, Pancharatna )
Soc., Anand Nagar, Panduranga )
Wadi, Manpada Road, Dombivili )
(East)0421 201. )..PETITIONER
Versus
1.The State of Maharashtra )
through the Hon’ble Minister, )
Home Affairs, Home Department, )
Mantralaya, Mumbai-400 032. )
2.The Commissioner of Police, )
having his office at Opp.Crawford)
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Mumbai-1. )..RESPONDENTS
WITH WITH WITH
WRIT PETITION LODGING NO.2338 OF 2005 WRIT WRIT PETITION LODGING NO.2338 OF 2005 PETITION LODGING NO.2338 OF 2005
(ORDINARY ORIGINAL CIVIL JURISDICTION)
1.Forum Against Oppression of )
Women, 29, Bhatia Building, )
Babrekar Marg, Off. Gokhale )
Road (North), Dadar (West), )
Mumbai-400 028. )
2.Aawaz E Niswan, having their )
office at Jain High School, )
84, Hazrat Abbas Galli, Dongri, )
Mumbai. )
3.Women’s Centre having their )
office at 104B, Sunrise Apts., )
Nehru Rd., Vakola, Santacruz )
(E), Mumbai-400 055. )
4.Akshara, having its office at )
Neelambari 501, Road No.86, )
Gokhale Road, Dadar West, )
Mumbai-400 028. )
5.Womens Action and Research )
Group, 101, Zaithunvilla, Behind)
Air View Building, Near Vakola )
Market, Santacruz (E),Mumbai. )
6.India Centre for Human Rights )
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& Law, having its office at )
Jain Schoo, 84, Hazrat Abbas )
Galli, Dongri, Mumbai. )..PETITIONERS
Versus
1.State of Maharashtra )
through the Hon’ble Minister, )
Home Affairs, Home Department, )
Mantralaya, Mumbai-400 032. )
2.The Commissioner of Police, )
having his office at Crawford )
Mumbai-1. )..RESPONDENTS
WITH
WRIT PETITION NO.2587 OF 2005
(ORDINARY ORIGINAL CIVIL JURISDICTION)
1.The Sanmitra Trust, )
Malvani Project, A registered )
Trust having its office )
Karimi Park, Shalimar Apartments)
3/B, 17, Oshiwara Garden Lane, )
Jogeshwari (W)-400 102. )
2.Ekta Self Help Group, )
an unregistered Association )
of Women Bar Dancers through )
their Chairperson having its )
address at, Karimi Part, )
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Shalimar Apartments, 3/B, 17 )
Oshiwara Garden Lane, )
Jogeshwari (W), Mumbai-400 102. )..PETITIONERS
Versus
1.State of Maharashtra )
through the Hon’ble Minister, )
Home Affairs, Home Department, )
Mantralaya, Mumbai-400 032. )
2.The Commissioner of Police, )
having his office at Crawford )
Mumbai-1. )
3.Maharashtra State AIDS Control)
Society )
4.Mumbai District AIDS Control )
Society, both Respondent Nos.3 &)
4 have their office at Acworth )
Complex, R.A.Kidwai Marg, )
Wadala,(W), Mumbai-400 031. )
5.National AIDS Control )
Organisation, 9th Floor, )
Chandralok Building, 36, Janpath)
New Delhi-1100 001. )..RESPONDENTS
WITH
WRIT PETITION NO.5503 OF 2005
Ramnath Vishnu Waringe, )
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of Pune,Aged 39 years,Proprietor)
of M/s.Hotel Gurudev (Lovebird) )
at Kamhe Phata, Vadgaon, Maval, )
Pune. )..PETITIONER
Versus
1.The State of Maharashtara, )
through the Hon’ble Minister, )
Home Department, Mantralaya, )
Mumbai-400 032. )
2.The Sub-Divisional Magistrate,)
Maval Sub Division, Pune-1. )..RESPONDENTS
3.The District Collector of )
Pune, Pune. )
WITH
WRIT PETITION NO.5504 OF 2005
Ajit Chandrakant Satkar )
of Pune,Aged 29 years,Proprietor )
of M/s.Ajit Motels & Resorts )
Private Limited at Post Kanhe, )
Taluka Maval, Dist. Pune. )..PETITIONER
Versus
1.The State of Maharashtara, )
through the Hon’ble Minister, )
Home Department, Mantralaya, )
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Mumbai-400 032. )
2.The Sub-Divisional Magistrate,)
Maval Sub Division, Pune-1. )..RESPONDENTS
3.The District Collector of )
Pune, Pune. )
WITH
CRIMINAL WRIT PETITION NO.1971 OF 2005
(APPELLATE SIDE)
Fight for Rights Bar Owners )
Association c/o.Karishma )
Restaurant and Bar (Through )
its President Shri Manjeetsingh )
s/o.Moolsingh Sethi, aged 57 )
years, Occ. Business, R/o.C/o. )
Karishma Restaurant & Bar, )
Naiagon Gross Road, Dadar (East))
Mumbai-400 014. )..PETITIONER
Versus
1. The Union of India through )
its Ministry,Home Department, )
New Delhi. )
2.The State of Maharashtra, )
(Through its Principal Secretary)
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Home Department, Mantralaya, )
Mumbai-32. )
3.The Advocate General of )
Maharashtra, High Court Building)
Annexe, Mumbai. )
4.Shri R.R. Patil, Deputy )
Chief Minister and Home Minister)
of Maharashtra, Mantralaya, )
Mumbai-32. )
5.Shri Vilas Satam, Age 32 years)
Occ. Business Vice President, )
NCP Kurla Unit, Kurla Dist.Thane)
At presently residing at )
Kurla(West), Mumbai-400 070 )
6.Shri Paresh C.Patil @ Majugale)
Aged 45 years, Occ. Interior )
Decorator, C/o. NCP Head Office )
Opp. to Mantralaya, Mumbai-32. )
At present residing at 5th Floor)
Near Sarva Mangal Maryalaya, )
Gangapur Road, Nashik. )..RESPONDENTS
7.Central Bureau of )
Investigation (Through its )
Director) New Delhi. )
8.The Commissioner of Police, )
Mumbai. )
WITH
WRIT PETITION NO.6930 OF 2005
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(NAGPUR BENCH)
Smt.Chhayadevi w/o.Suresh )
Jaiswal, Aged about 60 years, )
Occ. Business, Proprietor of )
M/s.Golden Spoon Bar and )
Restaurant, Abhayankar Road, )
Sitabuildi, Nagpur. )...PETITIONER
Versus
1.State of Maharashtra through )
a) Chief Secretary, )
b) Home Secretary, )
Mantralaya, Mumbai. )
2.Commissioner of Police, Nagpur)..RESPONDENTS
WITH
WRIT PETITION NO.6931 OF 2005
(NAGPUR BENCH)
Manoj S/o.Jainarayan Sharma, )
Aged about 36 years, )
Occ. Business, Partner of )
M/s.Lahoree Delux Bar and )
Restaurant, West High Court, )
Dharampeth, Nagpur. )..PETITIONER
Versus
1.State of Maharashtra through )
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a) Chief Secretary, )
b) Home Secretary, )
Mantralaya, Mumbai. )
2.Commissioner of Police, )
Nagpur )..RESPONDENTS
Mr. V.R. Manohar, Senior Advocate, with Mr. R.D.
Soni, Mrs. Veena B. Thadani and Mr. Vishal B.
Thadani for Petitioners in Original Side Writ 2450 of
2005 and Appellate Side Writ Petition No.5503 of 2005
and Writ Petition No.5504 of 2005.
Mr.Aspi Chinoy, Senior Advocate with Mr. A.M.
Sethna and Ms. Elavia Agnes for Petitioners in
Original Writ Petition Lodg.No.2952 of 2005
Mr. Anand Grover, Senior Advocate with Mr. Prakash
Mahadik, for petitioenrs in Original Side Writ
Petition No.2587 of 2005
Mr. Mihir Desai for Petitioners in Original Side
Writ Petition Lodg. No.2338 of 2005
Mr.S.B. Talekar with Mr. Jagdish G. Reddy for
Petitioners in Appellate Side Criminal Writ Petition
No.1971 of 2005.
Mr.S.S. Voditel for the Petitioner in Writ Petition
No.6930 of 2005 and Writ Petition No.6931 of 2005
Mr. Ravi M. Kadam, Advocate General with Mr. A.A.
Kumbhakoni, Associate Advocate General, Mr. R.M.
Sawant, Govt. Pleader and Mr. N.P. Deshpande
A.G.P. for the State in All Petitions.
Mr. Rafiq A. Dada, Special Counsel with Mr. A.R.
Patil, A.G.P. for Respondent No.8 Commissioner of
Police in Criminal Writ Petition No.1971 of 2005.
Mr. S.R. Borulkar, Public Prosecutor with Mr. D.S.
Mhaispurkar, A.G.P. for Respondent No.2 in Appellate
Side Criminal Writ Petition No.1971 of 2005
Mr. V.C. Kotwal, Special Counsel with Mr. P.A.
Pol, AGP for Respondent No.4 in Appellate Side
Criminal Writ Petition No.1971 of 2005
Mr. R.F. Lambhay for Respondent No.1 and 7 in
Appellate Side Criminal Writ Petition No.1971 of 2005
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Mr. A.P. Mundargi, Senior Advocate with Mr. M.S.
Karnik, for Respondent No.6 in Appellate Side
Criminal Writ Petition No.1971 of 2005
Mr. C.J. Sawant, Senior Advocate, with Mr. S.K.
Dubey, Mr. A.K. Jalisatgi and Mr. Amol B. Desai
for Applicants in Chamber Summons NO.217 of 2005 in
Original Side Writ Petition No.2450 of 2005 and in
Chamber Summons No.218 of 2005 in Original Side Writ
Petition Lodging No.2052 of 2005 and in Civil
Application No.2751 of 2005 in Appellate Side Civil
Writ Petition No.5503 of 2005
Mr. S.R. Ganbavale and Mr. S.S. Yadav for
Applicant in Chamber Summons NO.225/05, Chamber
Summons No.226 of 2005 in Original Side Writ Petition
No.2450 of 2005 in Chamber Summons No.226 of 2005,
Writ Petition Lodging No.2052 of 2005 and in Civil
Application No.2752 of 2005 and Civil Application
No.2753 of 2005 in Appellate Side Civil Writ Petition
No.5504 of 2005.
Mr. A.J. Almeida for Applicant in Chamber Summons
No.262 of 2005 in Original Side Writ Petition No.2450
of 2005.
Mr. Ishwarprasad G. Khandehwala, represetnative of
Applicant in Chamber Summons No.231 of 2005 in
Original Side Writ Petition No.2450 of 2005, Chamber
summons No.232 of 2005 in Original Side Writ Petition
Lodging No.2052 of 2005, Chamber Summons No.238 of
2005 in Original Side Writ Petition No.2587 of 2005
and Chamber Summons No.233 of 2005 in Original Side
Writ Petition Lodging No.2338 of 2005.
CORAM: F.I. REBELLO & CORAM: CORAM: F.I. REBELLO & F.I. REBELLO &
MRS.ROSHAN DALVI, JJ. MRS.ROSHAN MRS.ROSHAN DALVI, JJ. DALVI, JJ.
RESERVED ON: 14TH DECEMBER, 2005
PRONOUNCED ON:12TH APRIL,2006.
JUDGMENT (PER F.I. REBELLO, J):
. The challenge in all these petitions is to
the constitutional validity of Sections 33A and 33B
of the Bombay Police Act, as amended by the Bombay
Police (Amendment) Act, 2005. The bill was passed by
the Legislative Assembly on 21st July, 2005 and by
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the Legislative Council on 23rd July, 2005 and has
now come into force. The Sections under challenge
may be gainfully reproduced:-
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
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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,
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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) A person aggrieved by an order of the
Licensing Authority cancelling the
Certificate of Registration and the licence
under sub-section (3), may, within a period
of 30 days from the date of receipt of the
order, appeal to the State Government. The
decision of the State Government thereon
shall be final.
(5)Any person whose performance licence
stands cancelled under sub-section (1), may
apply to the Licensing Authority, who has
granted such licence, for refund of the
proportionate licence fee. The Licensing
Authority, after making due inquiry shall
refund the licence fee on pro-rata basis,
within a period of 30 days from the date of
the receipt of such application.
(6) The offence punishable under this section
shall be cognizable and non-bailable.
33B. Subject to the other provisions of this
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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."
2. The challenges as formulated in the Writ
Petitions, may now be set out before adverting to the
facts. Writ Petition No.2450 of 2005 has been filed
by the Indian Hotel & Restaurant Association (AHAR)
and Shri J.V. Shetty, General Secretary. AHAR is an
Association of various hotel owners and bar owners
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and/or conductors of the same, who carry on business
of running restaurants and bars in Mumbai. The
grounds of challenge to the constitutional validity
of the Act, and the various other contentions raised
in Writ Petition No.2450 of 2005, may be summarised
as under:-
(1) Maharashtra Act No.35 of 2005 is not
applicable to the petitioners members;
(2) The amendment violates Article 19(1)(g)
of the Constitution of India by imposing
restrictions by way of total prohibition on
the petitioners fundamental right to practice
any profession or to carry on any occupation,
trade or business;
(3) Section 33B exempts certain
establishments from the ban imposed by
Section 33A; The amended Section 33A is
violative of Article 14 of the Constitution
of India;
(4) Affidavit in reply dated 1st October,
2005 does not comply with the provisions of
Order 19 Rule 3 of the Code of Civil
Procedure. Hence the contentions in the
return filed being based on mere hearsay and
being without personal knowledge cannot be
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relied upon or admitted in evidence;
(5) Material portions of the petition have
not been denied by the respondents and
consequently are deemed to have been
admitted. To the extent contentions have not
been controverted, the petition will have to
proceed based on uncontroverted facts in the
petition. The allegations about trafficking,
showering of money by customers, vulgarity
and immorality have been made without any
personal knowledge and/or investigation being
carried out by the Government. The
allegations about exploitation of girls or
trafficking have appeared for the first time
in the return filed by the Government. The
statement of objects and reasons does not
refer to trafficking.
. The challenges in W.P. No. 5503/20045 and
5504/2004 are similar.
3. Writ Petition Lodging No.2052 of 2005 is
filed by Bharatiya Bargirls Union, a registered trade
union bearing No.Kamgar Upa Ayuktha/Thane/945/2004
under the Trade Union Act. It is represented by Ms.
Varsha Kale, Honorary President. It claims a
membership of 5000, who work as bar girls in
different parts of Maharashtra. It is their
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contention that there are approximately 75,000 women
working in around 2500 bars and hotels in or around
Mumbai city as well as in other districts of
Maharashtra. The principal contentions as urged are
that:-
(1)the amendment is violative of the right of
the bar girls to carry on an occupation or
profession within the meaning of Article
19(1)(g) of the Constitution of India. The
restriction amounts to a total prohibition
and consequently is violative of the
fundamental rights to carry on an occupation
or profession.
(2) The impugned amendment is arbitrary and
discriminatory in as much as it permits
performance of dance in a drama theatre,
cinema theatre and auditorium or sports club
or gymkhana or three starred and above hotel,
while completely prohibiting the same in an
eating house, permit room or beer bar. The
classification created has no reasonable
nexus to the aims and objects it is supposed
to achieve and is not founded on any
intelligible differentia, having a nexus with
the object sought to be achieved, namely
prohibiting dancing in an eating house, beer
bar and permit room and consequently is
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violative of article 14 of the Constitution
of India.
4. In Writ Petition Lodging No.2338 of 2005, six
petitioners are co-petitioners. The petitioner No.1
is the Forum Against Oppression of Women (FAOW),
claiming to be an autonomous, voluntary, non-funded
group, working on women’s issues for the last 25
years. FAOW, as the petitioner’s No.1 abbreviated
name is known, is a part of the National Networking
of Autonomous Women’s Groups and has been organising
and participating in six National Conferences of
Women’s Movements in India. It functions with a
discussion and campaign group, actively networking
and campaigning around all issues concerning
discrimination against women and other related
activities.
. The petitioner No.2 is Aawaaz-e-Niswan (AEN),
a registered women’s organisation dedicated towards
fighting injustices inflicted upon women and has been
in existence for 17 years. AEN grew from the need
for a space for Muslim women to come together and
share their experiences.
. The petitioner No.3 emerged out of the
women’s movement in the City of Mumbai in the year
1980 and is a registered public trust. It was set up
to further the cause of women’s rights and to make
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society aware of the oppressions suffered by women of
different sections.
. The petitioner No.4 is known as Akshara and
has been functioning since 1980s and grew out of the
1980s women’s movement’s campaigns against rape and
dowry. Their objective is in changing society by
changing people and encouraging collective
functioning.
. Petitioner No.5, the Women’s Research and
Action Group (WRAG) is a group of committed women
working towards the promotion of the social and legal
status of women from marginalized, disadvantaged,
unrepresented and under-represented communities. It
was founded in Mumbai in April, 1993 and is
registered as a public trust.
. The Petitioner No.6 is the India Centre for
Human Rights and Law (ICHRL) and registered under the
Bombay Public Trust Act. It works among the most
vulnerable and marginalized people to ensure their
access to rights and is a collective of lawyers and
activists.
. Petitioners have raised the following
contentions.(1) The amendment violates the right to
life, livelihood of bar dancers as set out under
Article 21 of the Constitution of India while
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prohibiting dancing in eating house, beer bars and
permit rooms no rehabilitation or compensation has
been provided under the amendments or any other
policies. (2) The amendment is violative of the bar
dancers right to an occupation or profession. The
restriction imposed is unreasonable and the
respondents have failed to produce material to show
that the restriction falls within permissible
restrictions.(3) The amendment is violative of
Article 14 of the Constitution of India as there is
hostile discrimination between dancers in various
establishments.(4) The amendment is violative of the
rights of the bar dangers right to freedom of
expression. The prohibition sought to be imposed on
the grounds of obscenity, decency and morality in the
absence of the State discharging its burden amounts
to an unreasonable restriction.
5. Writ Petition No.2587 of 2005 is by two
petitioners. Petitioner No.1 is a trust registered
under the Public Trust Act and has been working for
many years with sex workers in Malvani area of Malad
in Mumbai providing HIV/AIDS and S.T.D. related
services like condom promotion, setting up of
clinics, etc. They have initiated 10 self groups
with each group having 10 bar dancers. The
petitioner No.2 is the Ekta Self Group consisting of
10 bar dancers. Their principal contentions may be
set out as under:-
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(i) Section 33A and 33B is violative of
Article 19(1)(a) and not protected by Article
19(2) of the Constitution.
(ii) The prohibition of all types of dancing
whether vulgar or not is ipso facto violative
of Article 19(1)(g) and imposes a complete
ban on people choosing dancing in dance bars
as an occupation and cannot be construed as a
reasonable restriction under Article 19(6) of
the Constitution.
(iii) Clubbing of all forms of dance
performed in eating house, beer bars and
permit rooms whether decent or indecent in
one class is violative of Article 14 of the
Constitution of India. Secondly dividing the
establishments into those covered under
Section 33A on the one hand and on the other
those excluded under Section 33B, makes the
classification unreasonable and not based on
an intelligible differentia and having no
nexus with the object sought to be achieved.
The object for the exemption provided under
Section 33B is for holding dance performance
in sports club, gymkhana and three starred
and above hotel by renowned national and
international artists having acquired skill
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in western dance form. The respondents have
failed to show how the establishments
exempted under Section 33B can have only
non-obscene, decent, non-vulgar dance
performance and why the dance performance in
the establishments prohibited under Section
33A cannot be decent.
(iv) Dancing is a legitimate source of
livelihood. The impugned amendment has
deprived the bar dancers of their right to
carry on a profession of their choice and
deprives them of their legitimate right of
livelihood. The impugned amendment does not
meet the test of substantive fairness. It
does not provide for any alternative
employment or occupation for the dancers much
less does it make any alternate profession as
is required to be made by the State as far as
their right to livelihood is concerned.
Prohibiting dancing in an eating house, beer
bar and permit room is violative of article
14 of the Constitution of India. The
amendment also does not meet the test of
procedural fairness, as it imposes a blanket
ban on all dance performances in dance bars
without providing a procedure under which
their fundamental rights to earn a livelihood
is assured and also protection of the other
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fundamental rights guaranteed under Article
19. The amendment depriving the bar dancers
their right to livelihood has put them in a
position where they might, out of necessity,
have to engage in unprotected sex work. Thus
they would be highly vulnerable to contact
sexually transmitted diseases including HIV.
(v)The right to livelihood under Article 21
of the Constitution includes the right to
health. The prohibition imposed by Section
33A is, therefore, violative of their health
guaranteed by Article 21 of the Constitution.
Section 33A and 33B cannot be construed as
reasonable restriction under Article 19(6) of
the Constitution. Dancing is not "res-extra
commercium" whereas liquor has been held to
be "res-extra commercium". The restriction,
therefore, imposed in the establishment
against dancing and permitting the sale of
liquor cannot be construed as reasonable
restriction as it violates the right of the
bar dancers to practice an occupation or
profession. If the object was to prohibit
vulgar dancing then by prohibiting all types
of dancing, the amendment violates Article
19(1)(g) of the Constitution of India.
(vi). The prohibition of dancing in eating
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25
house, beer bar and permit rooms under
Section 33A is violative of the right of the
bar dancers to express themselves by dancing.
The restriction imposed is not reasonable
because no opportunity is provided to the
person against whom an order is made to have
the same removed by asking that it could not
and should not have been made. The
restriction could only have been imposed on
the ground of decency, morality and public
order. The onus of proving the restriction
as reasonable was on the State. The State
has failed to discharge that burden. The
prohibition, therefore, is not protected by
Article 19(2) of the Constitution of India.
(vii) Article 15(1) of the Constitution sets
out that the State shall not discriminate
against any citizen on grounds only of
religion, race, caste, sex, place of birth or
any of them. Women constitute an
overwhelming majority of bar dancers. The
effect of Section 33A is to infringe the
fundamental right under Articles 19(1)(a),
19(1)(g), 21 and 14 of the Constitution. The
effect of the State action is brought about
by a distinction based on a prohibited ground
and as such constitutes discrimination on a
prohibited ground. The impugned amendment
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26
imposes disproportionate impact on women on
the basis of their sex. It, therefore,
constitutes discrimination on the ground of
sex under Article 15, despite being couched
in facially neutral language.
6. Criminal Writ Petition No.1971 of 2005 is by
the Association of Dance Bar Owners duly registered
under the Trade Union Act, 1926. It is their
contention that they are a non-political service
organisation, aimed at providing economic and social
welfare of its members including its employees. The
most important objective is to promote and protect
the interest of its members engaged in hotel industry
and dance bars. They have as members 344 dance bars.
The challenge in the petition to Section 33A of the
Bombay Police Act, 2005 may be summarised as under:-
(I) Section 33A of the Bombay Police Act 2005
does not fall within the legislative
competence of the State Legislature as it is
enacted in respect of an entry in the VIIth
Schedule on which the State was incompetent
to legislate.
(II) The subject of the legislation is
already covered by Central Legislation. Once
Parliament has enacted laws on the same
subject including Indian Penal Code, Immoral
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27
Traffic (Prevention) Act, 1956 Juvenile
Justice Act and the Code of Criminal
Procedure so as to prevent obscenity,
indecency, depravity or immorality as well as
exploitation of women including minor girls
the field is already occupied. Therefore, to
the extent that the State Act impinges on
Central Laws already in force, the said law
is non-est being repugnant to the Central
Act.
(III) Section 33A amounts to a colourable
exercise of power. The State Legislature by
inserting Section 33A under the guise of
public order has impliedly amended Section
294 of the Indian Penal Code. The State
Legislature although had a power to amend
Section 294, such power could not have been
exercised, unless Section 294 of I.P.C.
itself is amended and the amendment had
received the assent of the President. The
amendment, therefore, amounts to colourable
exercise of power.
(IV). The power to legislate must exist in
the State Legislature and the same cannot be
arrogated to itself by usurping the law
making power of Parliament. If the exercise
of Constitutional power conferred on the
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28
State Legislature is for extraneous reasons
and/or for ulterior motive, it is nothing but
sheer abuse of power or fraud on power.
(V). Implementation of International
Convention on Immoral Trafficking in Women
and Girls is within the exclusive domain of
Parliament within the meaning of Article 253
and Entry No.14 of List 1 of VIIth Schedule.
If, therefore, it is the contention of the
State that the amendment was brought about to
implement International Convention on
Prevention of Women Trafficking it was beyond
the competence of the State Legislature and
consequently Section 33A and 33B are
unconstitutional.
(VI) Section 33A discriminates between
artists i.e. girls dancing in bars and
Thamasha theatres and at the same time
discriminates between viewers visiting dance
bars and Thamasha performances. Although the
performance of dance is prohibited in dance
bars such an activity, howsoever vulgar and
indecent, can go on in Thamasha theatres.
Dance in three starred and above hotel and
discos are not prohibited. The same girl may
dance either in Thamasha theatre or any other
exempted place. Dance performance in such
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29
place is neither prohibited nor made
punishable. Section 33A is, therefore,
arbitrary, artificial or evasive and in any
case is based on no intelligible differentia
which distinguishes persons visiting dance
bars on one hand and Thamasha theatre, three
starred and above hotel on the other.
Similar distinction between dance bars on one
hand and Thamasha theatres, three starred and
above hotel is again based on no intelligible
differentia. The basis of classification
between a person visiting dance bars,
Thamasha theatre and a person visiting three
starred and above hotel as well as places
such as dance bar on the one hand and
Thamasha theatre on the other hand has no
nexus with the object sought to be achieved
by the amendment of the Bombay Police Act.
The classification is artificial and has no
rational or reasonable nexus with the object
sought to be achieved.
(VI). Section 33A(2) in as much as it
imposes restrictions on the Court in
sentencing, interferes with the independence
of the judiciary (AIR 1999 S,.C. 3265) and,
is, therefore, violative of the basic
features of the constitution.
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30
(VII). The statement of the President of the
petitioner Shri Manjeetsingh as recorded by
the Police discloses an offence against
respondent No.4 who is the Deputy Chief
Minister and Home Minister of the State of
Maharashtra. It should be handed over to
Central Bureau of Investigation and the
respondent No.7 be directed to register
offence against respondents 4 to 6 and to
carry out further investigation in regard to
the demand of gratification of Rs.12.00 crore
and to complete the same within a specified
time limit.
7. Writ Petition No.6930 of 2005 and 6931 of
2005 are by the Proprietors of two establishments who
are affected by introduction of Sections 33A and 33B
to the Bombay Police Act. Their challenges to the
amendments are as under:-
I. That the prohibition imposed on dancing
in eating house, beer bars and permit rooms
amounts to an unreasonable restriction on the
petitioners right to carry on trade or
business under Article 19(1)(g) of the
Constitution of India.
II. The amendment prohibiting the petitioner
from having dance performance in its
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31
establishment amounts to infringement of the
petitioners right to life under Article 21 of
the Constitution of India.
III. The classification of establishment
into eating house, permit rooms and beer bars
on the one hand where dancing is totally
prohibited and exclusion of three starred
hotels and above disco lounges, gymkhana,
sports club on the other hand is unreasonable
in as much as the classification does not
have nexus with the object, namely of
prohibiting dancing in eating house, beer bar
and permit room and is, therefore, violative
of Article 14 of the Constitution of India.
8. From the pleadings and the submissions made,
the common challenges that are required to be
considered can be formulated as under:-
(a) Was the amendment, within the competence
of the State Legislature? Further, is the
subject matter of the amendment already
covered by laws enacted by the Parliament
under List III and if so is Section 33A
repugnant to the law made by the Parliament,
considering Article 246 of the Constitution
of India?
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32
(b) Does the proviso to Section 33A (2)
amount to interference with the independence
of the judiciary which is a basic feature of
the Constitution and consequently void?
(c) Should the affidavit dated 1st October,
2005 filed by Youraj Laxman Waghmare having
not complied with the provisions of Order 19
Rule 3 of the C.P.C. be rejected?
(d) Does Maharashtra Act 35 of 2005 not apply
to an ’eating house’ and consequently not
applicable to the petitioners establishments
as submitted in Writ Petition No.2450 of
2005?
(e) Is Section 33A and consequently Section
33-B violative of Article 14 of the
Constitution of India and consequently void?
(f) Is Section 33A violative of Article 15 of
the Constitution of India and consequently
void?
(g) Does the prohibition imposed, amount to
an unreasonable restriction of freedom of
speech and expression guaranteed by Article
19(1)(a) of the Constitution of India?
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33
(h) Does the amendment amount to a total
prohibition on the bar owners, carrying on
their trade or business; Similarly, does the
amendment amount to total prohibition on the
bar girls carrying on their profession and or
occupation and hence violative of their
fundamental right under Article 19(1)(g)?
(i) If the prohibition amounts to a
restriction, is it a reasonable restriction
within the meaning of Article 19(6) of the
Constitution of India?
(j) Is the amendment violative of the bar
dancers right to life, which includes
livelihood and protected by Article 21 of the
Constitution of India?
(k) Have Petitioenrs in Criminal W.P. No.
1971/2005 have made out a case for referring
the matter to C.B.I.?
Parties have relied on several judgments. We have
adverted to them, to the extent necessary.
9. Before we discuss the relevant issues we may
note, that each freedom has different dimensions and
merely because limits of interference with one
freedom is satisfied, the law is not free from the
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34
necessity to meet the challenges of the other
freedoms. When the petitioners allege violation of
various fundamental rights, the test to be applied is
the direct and inevitable consequence and effect of
the impugned State action on the fundamental rights,
of the petitioners. It is possible that in a given
case the pith and substance of the State action may
deal with a particular fundamental right, but the
direct and inevitable effect may be on another
fundamental right and in that case, the State action
would have to meet the challenge of the latter
fundamental right. In testing the validity of the
State action with reference to fundamental rights
what the Court must consider is the direct and
inevitable consequence of the State action.
10. The challenge to the competency of the State The challenge to the competency of the State The challenge to the competency of the State
Legislature: Legislature: Legislature:
. The petitioners’ arguments and/or contentions
on the ground of challenge to the competence of the
Legislature can be briefly summed up under these
heads:-
A. The amendment does not fall within the
legislative competence of the State
Legislature, as there is no entry ‘morality’
in List II of the VIIth Schedule to the
Constitution of India.
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35
B. Even if the doctrine of pith and
substance is applied, at the highest it may
fall within the concurrent list. The subject
matter is covered by law made under the
concurrent list in respect of which there are
already Central Legislation in force. The
amendment to the Bombay Police Act i.e.
Section 33A is inconsistent with the laws
made by parliament. The Bombay Act was not
reserved for consent of the President of
India, nor assented to by the President of
India. It would, therefore, be repugnant to
the Central Law and consequently invalid or
unconstitutional under Article 254 of the
Constitution of India.
C. The amendment is nothing but a colourable
legislation in colourable exercise of powers.
D. The amendment amounts to a fraud on the
Constitution, as the State Legislature though
was incompetent to pass the amendment has
usurped the power, by encroaching on the law
making power of the parliament.
E. The amendment, considering the affidavits
filed, is to prevent human trafficking based
on International Covenants. Parliament alone
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36
under Article 253 of the Constitution has
power to make a law on Trafficking to give
effect to International covenants and as such
the amendment is unconstitutional.
. On behalf of the State, the learned Advocate
General submits that the amending Act falls under
Entry 1, List II of the VIIth Schedule which deals
with public order. A bare perusal of the preamble to
the Bombay Police Act, 1951 makes it manifest that
the act is meant for maintenance of public order.
The Rules made, are for licensing and regulating
places of public amusement other than cinema and
performance of public amusement including melas and
Tamasha. They are meant to uphold public decency,
morality and public order. Regulating performance by
licensing is an essential part of public order. The
submission that the amendment would fall in the
residuary entry namely Entry 97 List I is
misconceived and unsustainable. To resort to Entry
No.97, the incompetence of the State Legislature must
be first established by applying the doctrine of Pith
and Substance. The amending Act deals with public
order. Merely because some portion of the subject
matter of the legislation may touch upon an entry in
another list, the same cannot be a ground for holding
that the Legislation is beyond the competence of the
State Legislature.
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37
. On behalf of the Commissioner of Police,
Mumbai, it is submitted that the Bombay Police Act
has been enacted by the State Legislature and can be
justified by Entry Nos.1 and 2 and 8 of List II viz.
entry relating to public order. Policing and control
of the manufacture, sale and distribution of
intoxicant liquors is within the competence of the
State Legislature. It is submitted that the State
mechanism which controls the sale of intoxicant
liquor in bars cannot be misused by the licensees by
exploiting women by committing acts which are
derogatory to the dignity of women. Under Article 51
of the Directive Principle of State Policy, it is the
duty of the State to implement all international
treaties and covenants. Section 33A and 33B are not
laws passed to enforce international covenants, but
have been passed to regulate the conduct of eating
house, permit room or beer bar, taking into account
the fact, that under the administrative policy it is
also required to ensure that the dignity of women is
preserved and they are not exploited. This is the
value which is prescribed in several international
covenants. Section 33A and 33B which is the part of
police functions independently subserves the
covenants which India has entered into in the matter
of International law. Section 33A and 33B are not
laws passed in Pith and substance to enforce
International Treaty or covenants. It is a law
passed to regulate conduct of bars and as a part of
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38
police functions. It helps to subserve the
international covenant relating to women’s dignity
and prevention of exploitation.
11. On behalf of the Deputy Chief Minister and
Home Minister, who is the Respondent No.4 in Criminal
Writ Petition NO.1971 of 2004, learned Counsel
submits that the law would squarely fall within the
entries in List II and the following fields of
legislation:-
List: Entry: List: List: Entry: Entry: Subject/aspect: Subject/aspect: Subject/aspect:
II 33 Entertainment or Amusement
II 2 Police
II 8 Intoxicants
II 1 Public Order
II 6 Public Health
II 64 Offences against laws
with respect to above
matters.
It is submitted that the statutory provisions are "in
respect of" an activity of exploitation of women
conducted for financial gain or advancement by a
number of bar owners and other intermediaries which
was projected as business of holding live
entertainment or amusement by women in public places,
licensed as eating houses, permit rooms or beer bars,
where food or drinks or intoxicants were served. The
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39
institutionalised activity was having ill effects on
society and in particular on safety, public health,
crimes traceable to material welfare, disruption of
cultural pattern, fostering of prostitution,
infiltration of crime, problems of daily life of
customers and their dependents and self abasement
apart from the degradation of the women themselves.
The provisions are intended to abolish the evil and
immoral practices to give effect to the
constitutional aims. The statute prohibits live
entertainment in such places after the commencement
of the act and makes the holding of dance performance
an offence. Entry No.33 deals with entertainment and
must be given its widest amplitude so as to include
power to prohibit or restrict a particular kind of
entertainment in particular places of public
entertainment where the need is felt most.
Considering Entry No.8 the scope of the legislative
power under these entries must include within their
ambit all aspects of entertainment activity which may
result in or are likely to result or have resulted in
disorderly behaviour, danger to safety of the people
in neighbourhood, crimes traceable to the evil,
opening of avenues for fostering of prostitution,
infiltration of criminal activities. The State in
such circumstances is not legislating in respect of
the offences themselves but is removing the
malignancy itself. It is the duty of the State to
take steps to protect public health and this will
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40
include the secondary effects on the dancers and the
patrons as well as the general public. Coming to
entry No.64 it is submitted that this entry covers
sub-section (2) of Section 33A, if the State has
legislative competence to enact the main provision.
It is then submitted that considering the width of
entry 8 of List II as the State Government has
exclusive privilege to deal in liquor, it has also to
be borne in mind that it has a constitutional and
legal duty to safeguard the public interest and
public health. A positive obligation is cast on the
State that any activity in dealing with liquor must
strictly conform to the public interest and ensure
public health, welfare and safety. On a combined
reading of Entry 8 and Entries 1, 2, 26, and 33, the
Legislative Competence of the State is apparent.
12. Before we deal with the entries, let us examine
some contentions urged on behalf of the petitioners.
The issue of the expressions, "colourable
legislation, fraud on power/fraud on the
Constitution" are well understood. We may gainfully
refer to some observations of the Apex Court in the
case of S.S. Bola & Others vs. B.D. Sardana & Ors. S.S. Bola & Others vs. B.D. Sardana & Ors. S.S. Bola & Others vs. B.D. Sardana & Ors.
AIR 1997 S.C. 3127. AIR AIR 1997 S.C. 3127. 1997 S.C. 3127.
"Colourable legislation would emerge only
when a legislature has no power to legislate
on an item either because it is not included
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41
in the List as assigned to it under the
respective Entries in the Seventh Schedule of
the Constitution or on account of limitations
imposed either under Part III of the
Constitution relating to Fundamental Rights
or any other power under the Constitution.
As the legislature enacts a statute on an
assumption of such power, but when on
examination, if it is found that it has
travelled beyond its power or competence or
in transgression of the limitations imposed
by the Constitution itself, such an enactment
is called a colourable legislation. It has
reference only to the legislative
incompetence and not to the power as such.
If the legislature enacts law in the pretext
of the exercise of its legislative power,
though actually it did not possess such
power, the legislation to that extent becomes
void as the legislature makes its Act only in
presence of and in purported colourable
exercise of its power."
"The doctrine of fraud on power means that
the legislature really has the power but does
not exercise that power. It merely pretends
to have exercised the power. In the eye of
the law, such an Act is not a law at all, but
it is mere pretence of law and the Court will
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42
not take notice of such law. The doctrine of
fraud on the Constitution is altogether a
different facet and a serious charge. It
would mean that when there is a
constitutional restriction or prohibition to
make a legislative enactment but the
legislature in spite of the prohibition and
restriction makes such law, it is a fraud on
the Constitution. Therefore, the distinction
between the fraud on power and the fraud on
the Constitution is clear and unambiguous."
"The Courts have applied the doctrine of
‘pith and substance’ and in some cases the
doctrine of "incidental" or "ancillary" or
"subsidiary power" of the legislature to
uphold the law or to validate the law
declared by the Courts as invalid. Thereon,
one of the doctrines is applied when the
Court finds that the law in pith and
substance is within the legislative
competence but incidentally trenches upon
another subject of legislation. Equally, the
doctrine of "ancillary or ancillary power"
the legislature is applied when the Court
records a finding that the impugned Act is
substantially within the legislative
competence or within the assigned field of
legislation dealt with under a particular
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43
subject specified in the respective lists of
the Seventh Schedule to the Constitution, but
incidentally, it trenches upon another
subject of legislation assigned either to the
Parliament or the Legislature of a State as
the case may be. However, the said doctrines
cannot be employed to uphold a law that
directly nullifies the declaratory law made
by the Court in exercise of the power of
judicial review or to make the writ of
mandamus or direction ineffective or
unenforceable, unless its invalidity is
properly and constitutionally removed by
employing the appropriate language so as to
make a new law within the constitutional
limits or limitations or competence of the
legislature."
13. The question which the Court has to answer is
whether the Petitioners have discharged the burden
placed on them to show that the Legislature was
incompetent to pass the amendment Act. The Apex
Court in Charanjit Charanjit Charanjit Lal Lal Lal Chowdhury Chowdhury Chowdhury vs. vs. vs. The The The Union Union Union of of of
India India India and and and Ors., Ors., Ors., AIR AIR AIR 1951 1951 1951 SC SC SC 41 41 41 has set out that
presumption is always 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.
In Welfare Welfare Welfare Association, Association, Association, A.R.P. A.R.P. A.R.P. Maharashtra Maharashtra Maharashtra & & & Another Another Another
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44
vs. vs. vs. Ranjit Ranjit Ranjit P. P. P. Gohil Gohil Gohil & & & Ors., Ors., Ors., (2003) (2003) (2003) 9 9 9 SCC SCC SCC 358 358 358 the
said principle has been reiterated in the following
words:-
There is a presumption that the Legislature
does not exceed its jurisdiction. The burden
of establishing that the Act is not within
the competence of the Legislature, or that it
has transgressed other constitutional
mandates, such as those relating to
fundamental rights, is always on the person
who challenges its vires. If a case of
violation of a constitutional provision is
made out then the State must justify that the
law can still be protected under a saving
provision. The Courts strongly lean against
reducing a statute to a futility. As far as
possible, the courts shall act to make a
legislation effective and operative."
. It is now well settled that the various
entries in the three lists of the Seventh Schedule
are legislative heads defining the fields of
legislation and should be liberally and widely
interpreted. Not only the main matter but also any
incidental and ancillary matters are available to be
included within the field of the entry. The settled
rules of interpretation governing the entries do not
countenance any narrow and pedantic interpretation.
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45
The judicial opinion is for giving a large and
liberal interpretation to the scope of the entries.
In interpreting a constituent or organic statute
indeed that construction which is most beneficial to
the widest possible amplitude of its powers must be
adopted. None of the items in the lists is to be
read in a narrow or restricted sense and all
ancillary or subsidiary matters referable to the
words used in the entry and which can fairly and
reasonably be said to be comprehended therein are to
be read in the entry.
. One of the proven methods of examining the
legislative competence of an enactment is by the
application of the doctrine of pith and substance.
This doctrine is applied when the legislative
competence of a legislature with regard to a
particular enactment is challenged with reference to
the entries in various lists and if there is a
challenge to the legislative competence, the courts
will try to ascertain the pith and substance of such
enactment on a scrutiny of the Act in question. In
this process, it is necessary for the courts to go
into and examine the true character of the enactment,
its object, its scope and effect to find out whether
the enactment in question is genuinely referable to
the field of legislation allotted to the State under
the Constitutional Scheme. (See E.V. Chinnaiah vs. See E.V. Chinnaiah vs. See E.V. Chinnaiah vs.
State of A.P. & Ors, (2005) 1 SCC 294. State State of A.P. & Ors, (2005) 1 SCC 294. of A.P. & Ors, (2005) 1 SCC 294.
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46
14. The entire argument of the petitioner on the
ground of legislative incompetence is to contend that
the expression ‘morality’ is not included in any of
the lists of the Seventh Schedule and consequently
the power to legislate would be referable to the
residuary Entry 97 of List I and that being the case
it is Parliament alone which was competent to make
the law.
. This argument proceeds on a basic fallacy.
Before exclusive legislative competence can be
claimed for Parliament by resorting to the residuary
entry the legislative incompetence of the State
Assembly must be clearly established. Entry 97 of
List I of the Seventh Schedule itself is specific
that a matter can be brought under the entry only if
it is not enumerated in List II or List III and in
the case of a tax, if it is not mentioned in either
of those lists. In a Constitution like ours where
there is a division of legislative subjects but the
residuary power is vested in Parliament, such
residuary power cannot be so expansively interpreted
as to whittle down the power of the State
legislature. That might affect and jeopardise the
very federal principle. The federal nature of the
constitution demands that an interpretation which
would allow the exercise of legislative power by
Parliament pursuant to the residuary powers vested in
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47
it to trench upon State Legislation and which would
thereby destroy or belittle State autonomy must be
rejected.
. The preamble of the Bombay Police Act, 1951
and the amendments, may now be set out as under:-
"...AND WHEREAS it is necessary to
consolidate and amend the law relating to the
regulation of the said Force and the exercise
of powers and performances of functions by
the State Government and by members of the
said Force for the maintenance of public
order.
AND WHEREAS it is necessary to provide for
certain other purposes hereinafter appearing
........"
The Preamble annexed to the Amendment Bill reads as
under:-
"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
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48
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.
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49
15. The question, therefore, that we are called
upon to answer is whether the amendment does not fall
in any of the entries in list II of the Seventh
Schedule as contended on behalf of the petitioners
and as such would fall within the residuary entry
No.97 of list I of even if it falls within List III
it is occupied by Central Legislation and hence the
law having not been reserved for Presidential assent
is repugnant to the Central law and consequently
unconstitutional. or as has been submitted on behalf
of the respondents that it squarely falls within the
entries 33, 2, 8, 1, 6 and 64 of List II.
. The Bombay Police Act as originally enacted
under Section 33 conferred power on the authority set
out therein. Sub-section (1)(w) confers power on the
Competent Authorities to license or control places of
public amusement or entertainment. By the amendment
introduced by Act Bom.20 of 1953 power was conferred
under sub-section (1)(wa) to license or control in
the interest of public order, decency or morality or
in the interest of the general public, with such
exceptions as may be specified, the musical, dancing,
mimetic or the artical or other performances for the
public amusement, including melas and tamashas.
Sub-clause (ii) of sub-section (wa) confers power to
regulate in the interest of public order, decency or
morality or in the interest of the general public,
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50
the employment of artists and the conduct of the
artists and the audience at such performance. There
was also provision for prior scrutiny of such
performances and of the scripts in respect thereof.
It would thus be clear that licensing and regulating
entry in a place of public amusement or entertainment
and regulating the same, can be done in the interest
of public order, decency and morality and has been in
force since the main Act was amended or by the
amendment of 1953. The power, therefore, to regulate
and license, places of public entertainment or
amusement of artists working therein was never
doubted and this could not have been doubted
considering Entry 33 of List II and entries 1 and 2
of List II. If there be a power to legislate and
impose restrictions, the power to prohibit such
performance in the establishments surely cannot be
doubted. As noted by the Apex Court the entries must
be given a wide amplitude.
16. Entry 8 of List II is field of legislation
pertaining to Intoxicating liquors, that is to say,
the production, manufacture, possession, transport,
purchase and sale of intoxicating liquors. It is now
the settled law (though now there is some doubt
considering the dissenting opinions in State State State of of of
Punjab Punjab Punjab & & & Anr. Anr. Anr. vs. vs. vs. Devans Devans Devans Modern Modern Modern Brewaries Brewaries Brewaries Ltd. Ltd. Ltd. & & &
Anr. (2004) 11 SCC 26 Anr. Anr. (2004) 11 SCC 26) that it is the State alone (2004) 11 SCC 26
that has the exclusive privilege to deal in liquor.
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51
. Based on that, the contention urged is that
it is open to the State to regulate the form of
entertainment in a place where the privilege is being
exercised. For that purpose our attention was
invited to some judgments of the American Supreme
Court and the right of the State and the exercise of
powers under the Twenty-first amendment. In New New New York York York
State State State Liquor Liquor Liquor Auth Auth Auth vs. vs. vs. Bellanca, Bellanca, Bellanca, 452 452 452 U.S. U.S. U.S. 714, 14, 14, 717 717 717
(1981) where there was a regulation on artists (1981) (1981)
performance in Bars, that Court observed as under:-
"Common sense indicates that any form of
nudity coupled with alcohol in a public place
begets undesirable behaviour. This
legislation prohibiting nudity in public will
once and for all, outlaw conduct which is now
quite out of hand".
In Crowley vs. Christensen, (1890) 34 Law Ed. 620 Crowley vs. Christensen, (1890) 34 Law Ed. 620 Crowley vs. Christensen, (1890) 34 Law Ed. 620
the Court observed:-
"The state, under its regulatory powers, has
the right to prohibit absolutely every form
of activity in relation to intoxicants - its
manufacture, storage, export, import, sale
and possession. In all their manifestations,
these rights are vested in the State and
indeed without such vesting there can be no
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52
effective regulation of various forms of
activities in relation to intoxicants......It
is a question of public expediency and public
morality, and not of federal law."
The Court then observed as under:-
"These observations have our entire
concurrence and they completely negative the
contention raised on behalf of the
petitioner. The provisions of the regulation
purport to regulate trade in liquor in all
its different spheres and are valid."
From the above observation it may be noted that in
the U.S.A. Courts have taken a view that in matters
pertaining to places where liquor is sold, it is open
to the State in exercise of its power to impose
restriction on the form of entertainment in places
where liquor is served or sold more so in cases where
public expediency and public morality demands. We
will examine whether this principle can be adopted in
the present case in our discussion to challenges
under Article 19(1)(g).
17. It is no doubt true that the preamble notes
that dances in indecent manner is derogatory to the
dignity of women and likely to disrupt, corrupt or
injure public morality or morals. It is also set out
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53
that such performances are giving rise to
exploitation of women. As has rightly being pointed
out, it is always open to the State to bear in mind
the constitutional principles including directive
principles, fundamental duties as also international
covenants while enacting a legislation. The State
Legislature while enacting a law can take note of
international covenants and treaties to which India
is a party and/or signatory, as long as the law which
it makes falls within its competence or traceable to
a right under Part III and or in furtherence of the
directive principles. If the law falls within its
competence it would not be a law enacted to bring
into force international covenants and treaties.
Such a power only flows to Parliament under Article
253 read with Entries 13 and 14 of List I. Both
Lists II and List III contain innumerable entries in
respect of which Central Government as the Federal
Government may have signed treaties and conventions.
If the State Legislature while enacting a law within
its competence, bears in mind the principles as
contained in those conventions or treaties, as long
as the law made is within its competence, it cannot
be said that this would impinge on the domain of
parliament and such an exercise of power would either
be a colourable exercise of power or fraud on the
Constitution. What the State Legislature in fact
does, is to enact a law within its field of
competence, but bearing in mind while enacting such a
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54
law, international treaties or conventions to which
India is a signatory or a convention which by passage
of time has reached the status of customary
international law. The other aspect of the matter is
that once the Legislation is referable to entries in
the IInd Schedule, the mere fact that it may also
impinge on some entries in List I or List II by
itself would not make the legislation
unconstitutional. The doctrine of pith and substance
will have to be applied. If so applied and as we
were examining the entries in list II, the present
law substantially is referable to entries 2, 8, 33,
and 64 of List II. We have, therefore, no hesitation
in holding that the State Legislature had competence
in enacting the law.
18. That brings us to the other issue raised on
competency, namely repugnancy between a Central Act
and the State Act. Article 254 of the Constitution
would only be attracted if the law made by the state
Assembly is pursuant to a power conferred on it under
List III of the Constitution of India and in respect
of which Parliament has also made a law. As we have
noted earlier, the law made by the State Assembly is
traceable to the power conferred on it under entries
in List II of the Constitution. We may only refer to
the judgment in The The The Bar Bar Bar Council Council Council of of of U.P. U.P. U.P. vs. vs. vs. State State State
of U.P. & Another 1973 S.C. 231 of of U.P. & Another 1973 S.C. 231 where in the matter U.P. & Another 1973 S.C. 231
of repugnancy, the Apex Court observed as under:-
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55
"The question of repugnancy can only arise in
matters where both the Parliament and the
State Legislature have legislative competence
to pas laws. In other words when the
legislative power is located in the
Concurrent List the question of repugnancy
arises."
It will thus be clear that considering the finding
recorded by us, in the earlier part of this Judgment,
the law made is within the law making power conferred
on the State Assembly in List II. The issue of
repugnancy, therefore, would not arise.
19. The challenge on the ground that curtailing The The challenge on the ground that curtailing challenge on the ground that curtailing
of of of judicial judicial judicial discretion discretion discretion interferes interferes interferes with with with the the the
independence of the Judiciary and as such the basic independence independence of the Judiciary and as such the basic of the Judiciary and as such the basic
feature of the Constitution. feature feature of the Constitution. of the Constitution.
. The next contention is that the State
Legislature by curtailing judicial discretion has
interfered with the independence of judiciary which
is a basic feature of the Constitution. Reliance for
that is placed on the Judgment in Registrar Registrar Registrar
(Administration) (Administration) (Administration) High High High Court Court Court of of of Orissa, Orissa, Orissa, Cuttak Cuttak Cuttak vs. vs. vs.
Siser Siser Siser Kanta Kanta Kanta Satapathy Satapathy Satapathy (dead) (dead) (dead) by by by L.Rs. L.Rs. L.Rs. and and and Anr., Anr., Anr., AIR AIR AIR
1999 1999 1999 SC SC SC 3265. 3265 3265 In our opinion the contention is
totally misplaced. Once it is open to the State
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56
Legislature to enact the law, it was open to the
State Legislature also to amend the law. While
amending the law it will also be open to the
Legislature in the matter of sentencing, to provide
in what cases the punishment should act as a
deterrent and a case where discretion is conferred to
issue lesser punishment, then to give reasons for the
same. Such an exercise of power is not unknown to
legislation in India. If there be power to fix a
term of imprisonment it is an incidental power to
regulate sentencing. At any rate this does not
interfere with the judicial power of the Court in
conducting trial or holding the person guilty. All
that the law stipulates is once the Court holds the
person to be guilty, in the matter of sentencing, if
it proposes to give a lesser punishment considering
the discretion conferred, then to give reasons for
its decision. The Criminal Procedure Code provides
for hearing before sentencing, it also provides in
certain kind of cases that the person convicted,
instead of being sentenced to imprisonment be placed
under probation. There are several other
illustrations, including in the Indian Penal Code.
The contention that the law infringes the basic
feature of the Constitution, the argument must be
rejected without any further discussion.
20. Affidavit in reply not verified according to Affidavit Affidavit in reply not verified according to in reply not verified according to
law: . law: law: A submission was made that the affidavit in
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57
reply dated 1st October, 2005 had not complied with
the provisions of Order 19 Rule 3 of the Code of
Civil Procedure. Subsequent to the contention being
urged, on behalf of the respondents State an
additional affidavit was filed by Youraj Laxman
Waghmare dated 23rd November, 2005. In that
affidavit the practice followed on the Original Side
of this Court has been set out. It is not necessary
for us to decide whether such a practice is in
consonance with the provisions of the Code of Civil
Procedure. The requirement for verification is to
enable the Court to know whether the affiant is
deposing to the facts based on his personal knowledge
or based on information conveyed to him and which he
believes to be true and/or based on records. If such
an affirmation is not made and it is affidavit
evidence which the Court must consider, it will be
impossible for the Court to decide whether the
petitioner has made a false statement before it and
if so whether the facts can be relied upon. Also in
the absence of verifying the paragraphs as set out
earlier, it may not be possible to proceed against
the petitioner for perjury or contempt. Mr.
Waghmare, however, has now added a verification
clause subsequent to the argument, rectifying the
irregularity. No additional arguments have
thereafter been advanced after verification. Once
that be the case in our opinion it is not necessary
to further answer the said issue. The failure to
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58
affirm an affidavit was an irregularity which was
curable. The respondents have taken steps to cure
the irregularity. The Court has taken the affidavit
on record. Once that be so it is not necessary for
this Court to refer to the various judgments relied
upon by the learned Counsel for the petitioner in
Writ Petition NO.2459 of 2005. Even otherwise in a
challenge to a Legislation, affidavit is not the only
material relied upon by the Court. That argument,
therefore, must be rejected.
21. Maharashtra Act No.35 of 2005 is not Maharashtra Maharashtra Act No.35 of 2005 is not Act No.35 of 2005 is not
applicable to the petitioners members: applicable applicable to the petitioners members: to the petitioners members:
. Writ Petition No.2450 of 2005 was amended by
adding the following prayer clause:-
(aa) that this Hon’ble Court be pleased by an
appropriate Writ/Direction to declare that
the provisions of the amending Act XXV of
2005 amending the provisions of the Bombay
Police Act, 1951 by introducing Section 33(A)
and Section 33(B) are not applicable to the
establishments of the members of the
Petitioners’ Association who hold the
requisite licences under Section 2(9) and
2(10) of the Bombay Police Act, 1951."
It is submitted on behalf of the petitioners that the
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59
establishments of the members are places of public
entertainment as defined under Section 2(10) and
places of public amusement as defined under Section
2(9) and are not ‘eating houses’ as defined under
Section 2(5A) of the Bombay Prohibition Act, 1951. A
room in the place of public entertainment is
demarcated and separated from the rest of the
establishment for service of liquor where only permit
holders are allowed to enter and no amusement
performances are permitted there. Hence the activity
of sale of liquor is distinct and separate. The 1st
petitioner has pleaded that its members have three
different activities in their respective
establishments which are independent of each other:-
(i) Service of food;
(ii) performance of music and dance; and
(iii) service of liquor in an independent and
demarcated room approved by the
Collector/Licensing Authority.
For the purpose of carrying on the above mentioned
separate and independent activities, the petitioners’
members are required to obtain licences from:-
(i) the Mumbai Municipal Corporation for
selling and serving food;
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60
(ii) from the Commissioner of Police for
Premises, Performance and Entertainment
Licences; and
(iii) from the Collector under the Bombay
Prohibition Act, 1949 read with the Bombay
Foreign Liquor Rules, 1953 for selling
liquor.
To serve liquor in the establishment, a person is
required to apply for a licence in Form FL III under
Rule 44 of the Bombay Foreign Liquor Rules, 1953
framed under the provisions of the Bombay Prohibition
Act, 1949. Along with the application, a Plan of the
Restaurant is submitted to the Licensing Authority
showing a room or an enclosed area independent of the
rest of the establishment for "sale and consumption
of Foreign Liquor". The application is then placed
before a Statutory Committee for consideration and
the Collector then considers the recommendation of
the statutory committee and after satisfying himself
that the "premises where it is proposed to sell
Foreign Liquor" are in conformity with the Rules,
sanctions an FL III licence under Rule 45 of the
Bombay Foreign Liquor Rules, 1953. The Plan of the
proposed premises showing and demarcating the room
where liquor is to be served, is then approved by the
Collector by affixing his stamp and signature on the
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61
plan. It is also submitted that the guide-lines
dated 26th April, 1989 issued by the Government
prescribe various conditions which are required to be
fulfilled for being considered for grant of an FL III
license. The entry to the said room duly licensed to
sell and serve liquor is restricted to permit holders
only.
Rule 52 of the Bombay Foreign Liquor Rules, 1953
prescribes as follows:-
"52.Sale and consumption of foreign liquor-
(1) Foreign liquor may be sold in pegs or
bottles to a foreigner or a permit-holder at
a hotel or restaurant for consumption only in
the room or rooms assigned for that purpose
and approved by the licensing authority for
the use of foreigners and permit-holders
only. Foreign liquor may also be sold in
pegs or hotels to a resident in such hotel,
for consumption in his room;
Provided that, wines may be served only to
foreigners for persons holding valid liquor
permits in the dining rooms of such hotel or
restaurant."
(2) Foreign liquor may be sold in pegs or
bottles at a club to any member thereof for
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62
his guest holding permit for consumption only
in the room or rooms assigned for that
purpose and approved by the licensing
authority and to any member of the club
residing therein only for consumption in his
room;
Provided that, mild liquor may be served to
any member including his guest (such member
or guest being not below twenty-one years of
age) for consumption at any place within the
premises of the club, which is not within
view from any public place."
It is, therefore, submitted that the activity of sale
and consumption of foreign liquor is an activity
independent of the rest of the establishment and is
restricted to the demarcated and designated room
approved by the Collector for sale and consumption of
liquor. On certain days sale of liquor is
prohibited. On such days the demarcated room or
rooms for the sale of liquor are kept closed and the
rest of the establishment is allowed to function and
other activities of the Restaurant like sale of food
and amusement performances are not disturbed. It
will, therefore, be apparent, it is submitted, that
the sale of liquor is an independent activity and
other activities can continue even when liquor is not
served. It is submitted that the right to trade in
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63
liquor may not be a fundamental right, but in so far
as the State of Maharashtra is concerned, a law
having been enacted for carrying on trade in liquor
by Licensees holding valid licences issued under the
Bombay Prohibition Act, 1949 read with the Bombay
Foreign Liquor Rules, 1953, the petitioners’ members,
who are the holders of such licences, have a
statutory right which can be invaded only in
accordance with the law. The amendment only
prohibits holding of a performance of dance of any
kind or type in an Eating House, Permit Room or Beer
Bar. The expression "Permit Room" and "Beer Bar"are
not defined either in the Bombay Police Act, 1951 or
in the Bombay Prohibition Act, 1949. Similarly, the
term "Dance Bar" is also not defined in the Bombay
Police Act, 1951 or the Bombay Prohibition Act, 1949.
These terms can, therefore, at best be considered as
"phrases of convenience" and are, therefore, capable
of being moulded to suit the convenience of the
occasion. If the room approved for sale or
consumption of liquor is construed for the purposes
of convenience as "Permit Room" or "Beer Bar", only
the designated "permit room" or "Beer Bar" room will
be covered under the prohibition contemplated by the
impugned amendment. The petitioners members do not
have any dance performances in the room assigned for
sale and consumption of foreign liquor or beer.
Dance and music are performed only in the remaining
portion of the place of public entertainment
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64
excluding the said permit room and as such the
impugned amendment would not apply to them as their
establishment is excluded from the definition of
eating house by Section 2(5A) of the Bombay Police
Act, 1951 and consequently the declaration as prayed
for.
22. On behalf of the State, the learned Advocate
General submitted that the definition of ‘eating
house’ as contained in Section 2(5A) and of "place of
public entertainment" in section 2(10), would
demonstrate that the reason for exclusion of place of
public entertainment from the definition of eating
house, is because liquor or any other substance
cannot be served in an eating house which has a
license for keeping a place of public entertainment.
Thus to differentiate between restaurant which sells
food but does not sell liquor the legislature has
excluded place of public entertainment from the
definition of eating house. In so far as a place of
public entertainment is concerned the licence is
issued to an eating house, which enjoys an additional
facility to serve liquor, wine and beer. In other
words a place of public entertainment includes an
eating house. A Division Bench of this Court in D.S. D.S. D.S.
Mudaliyar Mudaliyar Mudaliyar vs. vs. vs. State State State of of of Maharashtara Maharashtara Maharashtara & & & Ors., Ors., Ors., in in in Writ Writ Writ
Petition Petition Petition No.24 No.24 No.24 of of of 1998 1998 1998 decided on 4th October, 2004
has held that though eating house may not be included
as a place for public entertainment, nevertheless a
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65
place of public entertainment includes an eating
house and this question therefore is no longer res
integra. It is also pointed out that under the Rules
liquor can only be served for consumption in the
permit room and at or near the eating house. The
area/room assigned has to be approved for that
purpose by the licensing authority. It is submitted
that the argument advanced on behalf of the
petitioners that they are serving liquor in an area
not covered by FL III licence or based on an
illegality ought not to be countenanced by the Court.
23. An establishment, which has an eating house, FL
III Licence and a place of public entertainment
licence, can be divided into two parts:-
(a) The area of the premises of eating house
i.e. fully covered by the FL III licence and
where liquor can be served; and
(b) the remaining area not covered by the FL
III licence where liquor cannot be served.
. Can the submission on behalf of the
petitioners in Writ Petition NO.2450 of 2005 that the
Act is not applicable to the petitioners’ members be
sustained? For the purpose of considering the same
let us consider the various definitions which are
involved. Under the provisions of the Bombay Police
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66
Act, 1951.
"Section 2(5A) "eating house" means any place
to which the public are admitted, and where
any kind of food or drink is supplied for
consumption in the premises by any person
owing or having an interest in or managing
such place, and include a refreshment room,
boarding-house, coffee-house or a shop where
any kind of food or drink is supplied to the
public for consumption in or near such shop;
but does not include "place of public
entertainment".
"Section 2(10) "place of publi
entertainment: means a lodging-house,
boarding and lodging house or residential
hotel, and includes any eating house in which
any kind of liquor or intoxicating drug is
supplied (such as a tavern, a wine shop, a
beer shop or a spirit, arrack, toddy, ganja,
bhang or opium shop) to the public for
consumption in or near such place."
"Section 2(9) "place of public amusement"
means any place where music, singing,
dancing, or any diversion or game, or the
means of carrying on the same, is provided
and to which the public are admitted either
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67
on payment of money or with the intention
that money may be collected from those
admitted and includes a race course, circus,
theatre, music hall, billiard room, bagatelle
room, gymnasium, fencing school, swimming
pool or dancing hall."
We have earlier reproduced Section 33A which clearly
sets out that holding of performance of dance of any
kind or type is prohibited in an eating house, permit
room or beer bar. The submission as noted earlier on
behalf of the petitioners is that their place is not
an eating house as they have a license for a place of
public entertainment and further no activity of dance
is carried out in the permit room or beer bar. The
question that therefore emerges is, if dance and
music are performed only in the remaining portion of
the place of public entertainment not covered by FL
III licence, for which they have a license as an
eating house, can the activity of dancing or music be
prohibited? In such a situation let us examine the
process of interpretation of a statute. The object
of interpreting a statute is to ascertain the
intention of the Legislature. If there be casus
omissus, it cannot be supplied by the Court except in
case of clear necessity and where reasons for it is
found in the four corners of the statue itself. At
the same time a casus omissus should not be readily
inferred and for that purpose all the parts of the
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68
Statue or Section, must be construed together so that
the construction to be put to a particular provision
makes a consistent enactment of the whole statute.
This is more so in a case where the literal
construction would lead to a manifest absurdity or
analogous result which would not have been intended
by Legislature. A casus omissus ought not to be
created by interpretation, save and except in case of
necessity. On a construction of the definitions
earlier reproduced it is clear that eating house does
not include a place of public entertainment.
However, the definition of place of public
entertainment, includes an eating house where liquor
or intoxicant drug is supplied for consumption to the
public in or near such place. Therefore, it would be
clear that a place of public entertainment would
include an eating house. An eating house to which is
attached a permit room or beer bar to serve liquor or
intoxicants can be a place of public entertainment.
It would therefore not be correct to accept the
submission that in a place of public entertainment,
the area where liquor or intoxicants are not served
is not an eating house and, therefore, the Act is not
applicable. What the Court must examine while
considering the amending Act, is the object behind
the Act. In the instant case the object is to
prohibit all forms of dancing in an eating house,
beer bar or permit room which are derogatory to women
as also expolitation of women. It must be presumed
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69
that the Legislature was aware of the various
definitions. Otherwise if the argument on behalf of
the petitioners is accepted, it may amount to an
absurdity that the place where no liquor or drugs are
sold is prohibited from having dance performance of
any kind but in respect of those who have a license
for public entertainment including an eating house
having an attached permit room or beer bar there is
no such ban. Such a construction also would defeat
the main object of the legislation. The object is to
ban dancing for reasons earlier stated in certain
categories of hotels having an eating house and FL
III licence where liquor is sold. If the
construction urged on behalf of the petitioner is
accepted it would defeat this very object. The
contention, therefore, as urged on behalf of the
petitioners that their establishments are not covered
by Section 33A of the Act has to be rejected.
24. Does Prohibition of dancing, amount to Does Does Prohibition of dancing, amount to Prohibition of dancing, amount to
discrimination against women and, therefore, discrimination discrimination against women and, therefore, against women and, therefore,
violative of Article 15(1): violative violative of Article 15(1): of Article 15(1):
. The submission of the petitioners is that the
State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of
birth or any of them as enshrined in Article 15(1) of
the Constitution of India. Women, it is submitted,
constitute an overwhelming majority of bar dancers.
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70
The primary object and the direct and inevitable
effect is the prohibition of dance performance by
women in dance bars and thereby denial of employment
opportunity mostly to women. Therefore, the State
action in prohibiting dancing, infringes their
fundamental right, by practising discrimination on
them which is prohibited under Article 15(1) of the
Constitution of India. In the present case the
effect of the impugned amendment is that it
disproportionately impacts women, on the basis of
their sex and this was clearly foreseen and intended
by the Legislature to so impact. It invades their
right to equality, right of freedom of speech and
expression, right to occupation or profession or
right to livelihood. If the object of Article 15(1)
is considered it is bar on the State, amongst others
not to discriminate against any citizen on the ground
of sex. In the instant case is it so? From the
averments of the petitioners and material which has
come on record it would be clear that dancing in the
exempted establishments was mostly performed by
women.
. The law banning dancing in som
establishments and exempting other establishments,
however, is not traceable to banning dances performed
by women only. It is true that the preamble, the
objects and reasons clause, and the reply of the
State, indicates that it is to ban dancing by women,
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71
as will be discussed whilst discussing Article 14 of
the Constitution of India. That, however, does not
mean that dancing is being prohibited only on the
ground of sex. What is being prohibited is dancing
in identified establishments. No dancing is
permitted in the establishments say by males. The
argument could have been accepted if in the banned
establishments dancing by males were permitted. The
law makes no such distinction. The Act prohibits all
types of dances in the banned establishments by any
person or persons. Whether such a blanket ban is
possible need not be answered, whilst answering the
issue. Apart from that the direct and inevitable
consequences on the fundamental rights of the dancers
of carrying on the occupation or profession are being
independently examined. The prohibition, therefore,
applies to both men and women. That being the case,
the argument advanced on behalf of the petitioners of
violation of Article 15(1) has no merits and
consequently must be rejected.
25. The Ban amounts The The Ban amounts Ban amounts to an unreasonable toto an unreasonable an unreasonable
restriction restriction restriction on on on the the the fundamental fundamental fundamental right right right of of of the the the bar bar bar
owners and bar dancers of free speech and expression owners owners and bar dancers of free speech and expression and bar dancers of free speech and expression
guaranteed under Article 19(1)(a): guaranteed guaranteed under Article 19(1)(a): under Article 19(1)(a):
. The petitioners in Writ Petition Lodging
No.2338 of 2005, Writ Petition No.2587 of 2005 and
Criminal Writ Petition No.1971 of 2005 have also
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72
raised an issue that totally banning the performance
of any form of dance in the banned establishments, is
violative of the freedom of expression guaranteed by
the Constitution under Article 19(1)(a). The
arguments proceeds on the basis that dance is a form
of expression and that cannot be disputed. Dancing,
as an act of entertainment, is deeply rooted in this
Nation’s history and tradition. Dancing is almost
regarded as a national heritage. The stone carvings
and pictures in "Kailash Temple" at Ellora, Khajuraho
and paintings at Ajanta, stands out as an evidence of
history, traditions and cultural heritage of India.
The Vedas, Upanisadas, Sruties, Smrities, Puranas and
other religious teachings or moral codes, along with
traditions, followed in Ancient India, bears
testimony to the fact that dancing has been
considered as a mode of entertainment and has had
earned social sanction even in the early vedic age.
There is nothing brought on record to show that the
dance performance in bars by its very nature is
vulgar obscene or indecent. That burden was on the
State, which has not been discharged. It is further
submitted that the freedom of expression means the
right to express one’s convictions and opinions
freely by word of mouth, writing, printing pictures
or any other mode. This freedom to appeal to reason
is the basis of democracy. The freedom of singing
and dancing is an important medium of expression and
an integral part of freedom of speech and expression
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73
guaranteed under Article 19(1)(a), in as much as it
protects the right of the performer to perform and
also protects the right of the viewer to view and
watch to the performance. Reliance for that is
placed in the judgment of in Maneka Maneka Maneka Gandhi Gandhi Gandhi vs. vs. vs. Union Union Union
of of of India, India, India, AIR AIR AIR 1978 1978 1978 S.C. S.C. S.C. 597. 597. 597. where the Apex Court
has held dance to be a part of the right guaranteed
under Article 19(1)(a). This is what the Court
said:-
"Similarly, the right to paint or sing or
dance or to write poetry or literature is
also covered by Article 19(1)(a), because the
common basic characteristic in all these
activities is freedom of speech and
expression, or to put it differently, each of
these activities is an exercise of freedom of
speech and expression. It would thus be seen
that even if a right is not specifically
named in Article 19(1), it may still be a
fundamental right covered by some clause of
that Article, if it is an integral part of a
named fundamental right or partakes of the
same basic nature and character as that
fundamental right."
A learned single Judge of the Calcutta High Court
applied that principle in Mrs. Usha Uthup vs. State Mrs. Usha Uthup vs. State Mrs. Usha Uthup vs. State
of West Bengal, AIR 1984 Calcutta 268 of of West Bengal, AIR 1984 Calcutta 268. West Bengal, AIR 1984 Calcutta 268
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74
26. It is then sought to be pointed out that the
prohibition and/or restriction is impermissible and
not protected by Article 19(2) of the Constitution
and in these circumstances the total banning of dance
in the prohibited establishments affects the owners
and the dancers of freedom of expression and is
consequently violative of Article 19(1)(a) of the
Constitution of India.
. To consider this argument let us first
examine as to whether dancing in dance bars would
fall within the meaning of the word, the right to
freedom of speech and expression or is dancing merely
an occupation or profession. The issue as to what
would fall within the expression ’freedom of speech
and expression’ had come up for consideration before
the Apex Court in Hamdard Hamdard Hamdard Dawakhana Dawakhana Dawakhana & & & Anr. Anr. Anr. Vs. Vs. Vs. The The The
Union Union Union of of of India India India & & & Ors., Ors., Ors., AIR AIR AIR 1960 1960 1960 S.C. S.C. S.C. 554. 554 554 The issue
before the Apex Court arose from the provisions of
the Drugs and Magic Remedies (Objectionable
Advertisements) Act. The preamble to the Act set out
that it was an Act to control the advertisement of
drugs in certain cases and to prohibit the
advertisement of magic qualities which the drug
alleged to possess and to provide for matters
connected therewith. The contention of the
petitioner was that on the Act coming into force,
they were experiencing difficulties in the matter of
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publicity for their products, as various objections
were raised by the authorities in regard to their
advertisements and they were informed that they had
violated the provisions of the Act and consequently
they were called upon to recall their products sent
to various stations. Various representations
thereafter followed and as no relief was granted, the
Act was assailed amongst others on the ground that it
infringed the right of free speech under Article
19(1)(a) and also the right to carry on trade and
business. The Apex Court relied upon the judgments
of the American Supreme Court for consideration of
the issue of the nature of rights. The Apex Court in
paragraph 17 of the Judgment observed thus:-
"An advertisement is no doubt a form of
speech, but its true character is reflected
by the object for the promotion of which it
is employed. It assumes the attributes and
elements of the activity under Article 19(1)
which it seeks to aid by bringing it to the
notice of the public. When it takes the form
of a commercial advertisement which has an
element of trade or commerce, it no longer
falls within the concept of freedom of speech
for the object is not propagation of
ideas-social political or economic or
furtherance of literature or human thought,
but as in the present case the commendation
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of the efficacy, value and importance in
treatment of particular diseases by certain
drugs and medicines".
The Court then observed as under:-
"It cannot be said therefore that every
advertisement is a matter dealing with
freedom of speech nor can it be said that it
is an expression of ideas. In every case one
has to see what is the nature of the
advertisement and what activity falling under
Article 19(1) it seeks to further. The
advertisements in the instant case relate to
commerce or trade and not to propagating of
ideas; and advertising of prohibited drugs
or commodities of which the sale is not in
the interest of the general public cannot be
speech within the meaning of freedom of
speech and would not fall within Article
19(1)(a). The main purpose and true intent
and aim, object and scope of the Act is to
prevent self- medication or self-treatment
and for that purpose advertisements
commending certain drugs and medicines have
been prohibited......."
The Court then proceeded to observe that:-
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77
"Freedom of speech goes to the heart of the
natural right of an organised freedom-loving
society to "impart and acquire information
about that common interest". If any
limitation is placed which results in the
society being deprived of such right then no
doubt it would fall within the guaranteed
freedom under Article 19(1)(a). But if all
it does is that it deprives a trader from
commending his wares it would not fall within
that term".
. Hamdard Davakhana (supra) was explained by
the Apex Court in Tata Tata Tata Press Press Press Limited Limited Limited vs. vs. vs. Mahanagar Mahanagar Mahanagar
Telephone Telephone Telephone Nigam Nigam Nigam Ltd. Ltd. Ltd. & & & Ors., Ors., Ors., AIR AIR AIR 1995 1995 1995 SC SC SC 2438. 2438. 2438. The
question before the Apex Court was whether commercial
speech is denied the protection of Article 19(1)(a)
of the Constitution of India, merely because the
advertisements are issued by businessmen. The Court
observed that "Commercial speech" cannot be denied
the protection of Article 19(1)(a) of the
Constitution merely because the same are issued by
businessmen. The Court observed that so far as the
economic needs of a citizen are concerned, their
fulfilment has to be guided by the information
disseminated through the advertisements. The
protection of Article 19(1)(a) is available to the
speaker as well as to the recipient of the speech.
The recipient of "commercial speech" may be having
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much deeper interest in the advertisement, than the
businessman who is behind the publication. An
advertisement giving information regarding a life
saving drug may be of such more importance to general
public than to the advertiser who may be having
purely a trade consideration. Therefore, "commercial
speech" is a part of the freedom of speech and
expression guaranteed under Article 19(1)(a). In
that case on behalf of the respondents relying on the
observations in Hamdard Dawakhana (supra) it was
contended that commercial advertisement is outside
the concept of freedom of expression. The Court held
that Hamdard Dawakhana’s case primarily relied on the
judgment of the United States Supreme Court in
Valentine v. Chrestensen (1941(86) Law Ed. 1262)
that purely commercial advertising is not protected
by Article 19(1)(a) of the Constitution. It was
pointed out, that since then, the United State
Supreme Court has accepted purely commercial
advertisement for a protection of the first
amendment. Reference was then made to a judgment in
Indian Indian Indian Express Express Express Newspapers Newspapers Newspapers (Bombay) (Bombay) (Bombay) Private Private Private Ltd. Ltd. Ltd. & & &
Ors. Ors. Ors. vs. vs. vs. Union Union Union of of of India, India, India, AIR AIR AIR 1986 1986 1986 SC SC SC 515 515 515 wherein
Hamdard Dewakhana was explained by holding that the
object of that Act was the prevention of
self-medication and self-treatment by prohibiting
instruments which may be used to advocate the same or
which tended to spread the evil. The Apex Court then
observed that it was of the view that all commercial
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advertisements cannot be denied the protection of
Article 19(1)(a) of the Constitution merely because
they are issued by businessmen. Having said so the
Court held that a reading of Hamdard Dawakhana’s case
(supra) and the Indian Express Newspaper’s
case(supra) led to the conclusion that "commercial
speech" cannot be denied the protection of Article
19(1)(a) of the Constitution.
27. Dance admittedly is a form of expression
whatever be the civilization aspect. Maneka Gandhi
(supra) has recognised dance as part of fundamental
right to freedom of speech and expression. It is,
therefore, now accepted that dancing is a part of the
fundamental right, being the "right to express". The
question then would be whether dance in the form of
entertainment for commercial purposes can be regarded
as a part of "right of expression. Let us take an
illustration. Firstly a group of people with a view
to put across their point of view organise an
entertainment programme which could be a dance
performance with a view to attract an audience and
not to economically benefit from the same, but raise
issues of concern which may be political, social or
economic, amongst those who participate or a wider
audience through any form of media, electronic, press
or any other form. They may or may not charge a fee
for entrance. The Second illustration would be as in
the instant case. A person running a business or
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trade with a view to attract a large clientele or to
increase profit volumes or the like, organises or
allows an entertainment programme with his business
activities or as a part of or ancillary to his trade
or business, as in the instant case in an eating
house having a liquor license. In the first
illustration the entertainment normally should fall
within the expression "the right to speech and
expression’ as it is organised for putting across a
point of view for those desirous of attending it. In
the second case, it is ancillary to the right to
carry on trade or business and in a case of the dance
performers, right to an occupation or profession as
the activity intends to promote the businessmen’s
trade and the dancers right to practice a profession
or carry out an occupation. In a case where more
than one fundamental right under Article 19 is
involved or overlapping of fundamental rights, the
doctrine of pith and substance could be applied as
observed by H.M. Seervai in Constitutional Law of
India, placing reliance in the judgment of Mathew J.
in Bennet Bennet Bennet Colmen Colmen Colmen & & & Co. Co. Co. vs. vs. vs. Union Union Union of of of India, India, India, AIR AIR AIR 1973 1973 1973
S.C.106. S.C.106. S.C.106. In the present case the owner of a premises
having a licence for entertainment, contends that
dancing apart from forming part of right to trade or
business also forms a part of the fundamental right
of freedom of expression. Applying the doctrine of
pith and substance, on the facts and material on
record, it will be open to the Court to record a
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finding of fact as to which fundamental right is
being infringed. The fundamental rights conferred by our
Constitution are not absolute. Article 19 has to be
read as a whole. The fundamental rights enumerated
under Article 19(1) are subject to the restrictions
mentioned in clauses (2) to (6) of the said article.
Hence, the correct way to describe the fundamental
rights under Article 19(1) is to call them qualified
fundamental rights.
28. Freedom of speech and expression is the
foundational basis from which all other fundamental
rights spring and can be enjoyed. It will,
therefore, be not possible to place limitations or
boundaries on such a valuable right of expression
except to the extent provided under Article 19(2) as
it is indispensible to all freedoms. This right is
the basis of human personality and its advancement.
Right of dissemination and information has
constituted significantly to the onward march of
civilisation. Freedom to express is integral to any
democracy. It is not meant only, to refer to an
individual right, but rather the right of community
to be heard and be informed. Therefore, dancing as a
form of entertainment would be an expression of one’s
thoughts and feelings conveyed to an audience or for
ones own pleasure. An artistic expression is a part
of right of speech and expression and continues to be
so, if the artist does it purely as a part of an art
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or incidental thereto and even if the artist seeks to
commercially gain from it or as a part of an
occupation, as long as it is not sought to be
exercised in a premises which is licensed to another
for carrying on trade and/or business or occupation,
in which event that right would on the doctrine of
pith and substance form a part of the right to
freedom of occupation or profession.
29. The petitioners have relied on several other
judgments. We may advert to some of them. Reference
may now be made to judgment of the single Judge of
the Calcutta High Court in Mrs. Mrs. Mrs. Usha Usha Usha Utup Utup Utup vs. vs. vs. State State State
of of of West West West Bengal Bengal Bengal & & & Ors., Ors., Ors., AIR AIR AIR 1984 1984 1984 Calcutta, Calcutta, Calcutta, 268. 268. 268. In
that case the petitioner an artist was refused
permission to use a hall of a trust for a music
performance. The learned Judge was considering both
Article 19(1)(a) and 19(1)(g). The Court held that
the public authority could not deny permission to the
petitioner from performing the music performance as
it violated Article 19(1)(a). The Court also held
that by refusing permission it amounted to violation
of the fundamental right to practice a profession or
to carry on an occupation and this would be violative
of Article 19(1)(g) of the Constitution.
. We may now refer to the judgment in
Fertilizer Fertilizer Fertilizer Corporation Corporation Corporation Kamagar Kamagar Kamagar Union Union Union v. v. v. Union Union Union of of of
India India India (supra) to test the correctness of the view
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that we have held, as to why on the facts of the case
the fundamental right to ’expression’ is not
attracted. In that case the company wanted to sell
certain plants and equipments which were redundant.
The Union sought to intervene on the ground that they
were persons aggrieved as their fundamental rights
would be affected as it would jeopardise the
employment of several thousand workers, who would
subsequently face retrenchment and as such the right
of the petitioners to carry on an occupation. Though
this was a judgment under Article 19(1)(g), to an
extent, it indicates the rights of a party who also
pleads violation of Article 19(1)(a). The contention
of the workmen was rejected by holding that 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 the sale, it will be open to them to
pursue their rights and remedies under the Industrial
Laws. However, 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 by Article 19(1)(g) of
the Constitution. The Court further held that even
assuming that some of the workers may eventually have
to be retrenched,it will not be possible to say that
their right to carry on an occupation has been
violated. It would be open to them, though
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undoubtedly it will not be easy, to find out other
avenues of employment as industrial workers. Article
19(1)(g) confers a broad and general right which is
available to all persons to do work of any particular
kind and of their choice. It does not cover the
right to hold a particular job or to occupy a
particular post of one’s choice. Similarly if
employed or on contract, a person is allowed to
’dance’ in the licensed establishment of such others
then in that event on that person losing the license
the dancer who is prohibited from dancing cannot
complain of violation of freedom, speech and
expression, assuming that he could do so.
30. In the instant case the dancers are not
individuals contending that they are prevented from
dancing. They dance or have a dance performance in
premises of another, who had a performance licence.
The law enacted by the State is not to have dancing
in the prohibited establishments. The owner of a
premises earlier could permit the activity of
dancing, consequent on obtaining a license. The
other activity is of eating house and permit room.
The bar owner organises dance performance, for those
who frequent his establishment by way of
entertainment. The guest could partake services of
eating house or permit room or could be visiting the
establishment for the dance performance itself. The
artists were, therefore, carrying on a profession in
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the licensed premises which are known as place of
public entertainment pursuant to the licence held by
the bar owner. Their right, therefore, flows from
the right of the bar owner to have a licence for
dance performance. The dancers are not prohibited or
restricted from dancing elsewhere. Though dancing
forms a part of speech and expression, it will not be
possible to hold that every dancer who wishes to
perform in a licensed premises of another, if denied
the right to perform, such an act would be violative
of the dancers right under Article 19(1)(a). The
distinction in such an event will have to be made as
to what was the main object of the dancer in dancing
Was the object to dance, as right to an occupation or
profession or in the exercise of the right of speech
or expression. That would depend on the facts and
issues involved. A Lecturer in a college
disseminating information to students or teaching
them may be using his freedom of speech and
expression, yet what he is doing in a lecture room is
practising a profession. In the instant case the
artistic expression of dance being prohibited in a
particular establishment, which has no licence
pursuant to the licence being cancelled, would not
attract the right to freedom of speech and
expression. On the facts of the instant case it
would have to be held that the dancers presence in
the premises was not with a view to espousing their
right of speech or expression, but to carry on an
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86
occupation or profession. In fact in Writ Petition
(Lodging) No.2338 of 2005, the Petitioner
organisations have argued that bar dancers are
capable of dancing to existing Hindi films tunes.
This is the only skill most of them possess and at
the highest is a profession and/or vocation or
occupation.
31. Thus dance performed by the dancer is not to
express views held by the dancer or express their
thoughts through the medium of dancing. What the
dancer does by dancing is as an occupation or
profession. In other words dance performed by the
bar dancer would not fall within the expression
speech and expression as the dancers activities are
mainly to earn their livelihood by engaging in a
trade or occupation. We are, therefore, of the
opinion that the prohibition and/or restriction
imposed does not directly interfere with the freedom
of speech and expression and consequently there is no
direct abridgement of the right of speech, but it
incidentally interferes with such right and
consequently there is no interference with Article
19(1)(a) as it would not be attracted. We,
therefore, have no hesitation in holding that in the
instant case on the facts involved herein,the
fundamental right affected is the right to carry on
an occupation or profession guaranteed under Article
19(1)(g) and not the fundamental right of speech or
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87
expression under Article 19(1)(a). The amending Act,
therefore, need not be tested as to the requirements
of Article 19(2).
32. Does the amendment violate the bar dancers Does Does the amendment violate the bar dancers the amendment violate the bar dancers
right under Article 21 of the Constitution?: right right under Article 21 of the Constitution?: under Article 21 of the Constitution?:
. On behalf of the petitioners, espousing the
cause of the bar dancers and the bar dancers
themselves , it is submitted that under Article 21 of
the Constitution no person can be deprived of right
to life except according to procedure established by
law. The deprivation can be if there be a
substantive law authorising such deprivation and the
law provides for the mode for deprivation i.e.
proceedings prior to deprivation. This is because
the right to livelihood is a component of right to
life as envisaged under Article 21 of the
Constitution. (See (See (See Olga Olga Olga Tellis Tellis Tellis and and and ors. ors. ors. vs. vs. vs. Bombay Bombay Bombay
Municipal Municipal Municipal Corporation Corporation Corporation & & & Ors., Ors., Ors., (1985) (1985) (1985) 3 3 3 SCC SCC SCC 545 545 545 and and and
Consumer Consumer Consumer Education Education Education & & & Research Research Research Centre Centre Centre & & & Ors. Ors. Ors. vs. vs. vs.
Union Union Union of of of India India India & & & Ors., Ors., Ors., (1995) (1995) (1995) 3 3 3 SCC SCC SCC 42. 42. 42. The ban on
dance in the place of public establishment has
undoubtedly taken away the bar dancers’ right to
livelihood. It is submitted that such deprivation
can only be if the law meets the requirement of
substantive as well as procedural due process. The
substantive due process would be violated if (a)
there is no possible alternative source for the
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dancers; (b) There is no rehabilitation or adequate
compensation provided for the dancers; and (c) the
ban is going to affect the dancers of their
livelihood. In the instant case the Legislature has
not provided for rehabilitation or compensation in
the amending Act. In so far as the alternative
source of livelihood, it must be borne in mind that
most of the bar dancers are illiterate and do not
possess any other skills. The impact of the ban has
directly affected their livelihood. The earnings of
the bar dancers were not very high and their expenses
being very high. According to the contention they
have no savings to fall back upon. This has to be
considered in the background that dancing as an
occupation or profession is recognised as a
fundamental right and until the impugned legislation
came into force, it was a legitimate source of
livelihood for the bar dancers, who are now rendered
unemployed. While enacting a law, even if it be in
furtherance of a directive principle, it cannot take
away or affect what is set out in other directive
principles like Article 39A which states that all
citizens men and women equally have the right to
adequate means of livelihood and Article 41 which
states that the State within its economic capacity
and development, has to make effective provision for
securing the right to work, to education and to
public assistance in cases of unemployment. In
response to the State’s contention that they will
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89
provide for rehabilitation, it is submitted that such
plan should have been before the amendment of the Act
and in the absence of that the amendment cannot be
rescued by subsequently formulating a scheme. It is
sought to be pointed out that the statement of the
State cannot be relied upon as in the past the
Government inspite of making promises to
rehabilitate, over 1.25 lakh mill workers rendered
jobless due to closure of mills did not do so. It is
also pointed out that in respect of the devastating
earthquake at Latur and the 27th July, 2005 deluge in
Mumbai, no effective rehabilitation measures were
taken and apart from that in respect of all major
projects undertaken by the Government there never has
been any effective rehabilitation. Considering that
and as it would be difficult to prove the identity of
bar dancers, many of them who were not employees the
submission should not be accepted.
33. On behalf of the State the learned Advocate
General has made the following statement:-
(1) The Government of Maharashtra is aware of and
sympathetic to the need to rehabilitate bar girls
affected by the provisions of the Bombay Police
(Amending Act) 2005. With a view to ensure their
effective rehabilitation and provide them with a
dignified alternative vocation, the State Government
will set up a special dedicated Cell to counsel,
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90
train and assist the bar girls to avail of the
benefit of the various Government Schemes for
employment including self employment so as to find an
alternative vocation. This Cell shall be part of the
Women and Child Welfare Department.
(2) If necessary, Government is also agreeable to
set up a Special Committee to investigate into and
suggest ways and means of providing a suitable
dignified alternative vocation to the Bar girls who
may have been displaced by the aforesaid legislation.
. The Government has also annexed the material
and government resolutions showing the various
schemes that are in force for providing a means to
livelihood.
34. In the instant case the right to livelihood
is affected on account of the direct effect of the
Act, banning dancing in the prohibited
establishments. The direct effect of such closure
has impacted the livelihood of the bar dancers. The
question which we have to really answer is, whether
by such closure the right to livelihood has been
taken away. We may gainfully refer to the
observation of the Apex Court in Sodan Singh (supra).
The Apex Court observed as under:-
"We do not find any merit in the argument
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91
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."
In In In the the the case case case of of of Sodan Sodan Sodan Singh Singh Singh (supra) (supra) (supra) the the the issue issue issue was was was of of of
hawking. hawking. hawking. The prevention of hawking activities
directly affected the right to livelihood of the
hawkers. The Court accepted that the right to
hawking forms a part of the expression, occupation,
trade or business. It would thus be clear that
Article 21 would be attracted in a case where the
petitioners claim a fundamental right to carry on
trade, business, occupation or profession. At the
same time the Apex Court in Sodan Singh (supra) also
observed as under:-
"An alarming percentage of population in
India is still living below poverty line.
There are millions of registered unemployed.
Government, in spite of constitutional
mandate is unable to provide them with
employment. But when, by gathering meagre
resources, they try to employ themselves as
hawkers or street traders they cannot be
stopped on the pretext that they have no
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right, rather the Government should render
all help to rehabilitate them."
In the instant case as we have noted earlier these
are women who are mostly semi-literate coming from
socially and economically poor background. Many of
them are widows, others have faced exploitation at
the hands of their husbands or families. Still
others have been unable to secure a job to maintain
themselves and their families. In these
circumstances even if they cannot claim right to
livelihood it does not mean that while dealing with a
marginalised section of the society, whose right to
livelihood is taken away, the State is precluded from
providing rehabilitation or taking steps for the
rehabilitation. In Neeraja Neeraja Neeraja Choudhary Choudhary Choudhary vs. vs. vs. State State State of of of
M.P. M.P. M.P. AIR AIR AIR 1984 1984 1984 SC SC SC 1099 1099 1099 in the matter of rescuing the
bonded workers whilst preparing a scheme for
rehabilitation, the Court observed that in such
matters it is necessary to involve social action
groups so as to identify the downtrodden and work
towards their rehabilitation. In Vishal Vishal Vishal Jeet Jeet Jeet vs. vs. vs.
Union Union Union of of of India, India, India, AIR AIR AIR 1990 1990 1990 SC SC SC 1412 1412 1412 the Apex Court in
the matters pertaining to sex exploitation and
children issued various directions to the State
Government and Central Government to constitute
Committees and set up welfare programmes for their
benefit. In Gaurav Gaurav Gaurav Jain Jain Jain vs. vs. vs. Union Union Union of of of India, India, India, AIR AIR AIR
1997 1997 1997 SC SC SC 3021 3021 3021 the Apex Court again was pleased to
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issue direction for rehabilitation through various
welfare measures so as to ensure their dignity of
person, their means of livelihood and socio-economic
empowerment. . In Consumer Education & Research Consumer Education & Research Consumer Education & Research
Centre Centre Centre & & & Ors. Ors. Ors. vs. vs. vs. Union Union Union of of of India India India & & & Ors. Ors. Ors. (1995) (1995) (1995) 3 3 3
SCC SCC SCC 42, 42, 42, the issue before the Apex Court was in the
matter of asbestos industry and the right of such
workers to medical aid and service thereafter. The
Apex Court held that in those cases where workers
were found to be suffering occupational health
hazards, their right to health and medical aid is a
fundamental right. In so holding the Court relied
upon the preamble to the Constitution, the directive
principle of State Policy and Universal Declaration
of Human Rights. The Court observed that if the
right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of
depriving a person of his right to life would be to
deprive him of his means of livelihood to the point
of abrogation. Such deprivation would not only
denude life of its effective content of meaingfulness
but it would make life impossible to live, leave
aside what makes life liveable.
. The Committee, if it needs to be appointed,
can be on the basis of the statement made on behalf
of the State of Maharashatra and the direction issued
in the case of Gaurav Jain vs. Union of India, Gaurav Jain vs. Union of India, Gaurav Jain vs. Union of India,
(1997) 8 SCC 114. (1997) (1997) 8 SCC 114. 8 SCC 114.
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35. An additional argument was advanced that
because of the prohibition of dancing by the dancers
in the dance bars, their right to earn a livelihood
is impaired and because their right to livelihood is
affected they would be vulnerable to HIV/AIDs and
other STI. It is true that bar dancers constitute a
vulnerable section of the marginalised society.
That,however, by itself does not mean that once their
right of gainful employment or carrying on an
occupation or profession in a particular place is
prohibited, the probability of they seeking another
profession endangers their health or the right to
earn a livelihood. This argument at least would not
be available when a person seeks to carry on a
profession or occupation of a sex worker, as sex work
is recognised as immoral or an activity which is ’res
extra commercium’ and there can be no fundamental
right to carry on an occupation or profession which
is immoral as will be seen when we discuss Article
19(1)(g). Therefore, that issue will have to be
examined in the context as to whether the prohibition
imposed by Section 33A, has affected the right to
livelihood of the bar dancers. If the argument of
the petitioner bar girls are accepted, then in a case
of closure of industries, loss of crops on account of
famine, where the earning capacity of the person is
lost, thereby affecting means of health care the
right to livelihood would be infringed. This the
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State provides in the form of health care in public
hospitals and dispensaries and thus to a large extent
takes care of the health of its citizen. The right
to health is no doubt incidental to the right to
life. Considering the above in our opinion that
issue really does not arise.
36. IsIsIs the impugned amendment violative of the impugned amendment violative of the impugned amendment violative of
Article 14 of the Constitution of India. Article Article 14 of the Constitution of India. 14 of the Constitution of India.
. The following contentions will have to be
examined in order to answer the issue:-
(1) What is the object of the Legislation;
(2) Is the classification founded on an
intelligible differentia which distinguishes
persons or things that are grouped together
from others left out of the group.
(3) Does such differentia have a rational
nexus and/or relation to the object sought to
be achieved by the Statute in question.
(4) Classification being merely a judicial
formula for deciding whether a legislation or
administrative action is arbitrary, is the
prohibition on dancing, imposed by Section
33A unreasonable and/or arbitrary.
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. We may advert to the pleadings in Writ
Petition No.2450 of 2005 for that purpose. The
dances, performed in various ‘dance bars,’ as called
in colloquial language, are usually performed by
artistes who imitate dances performed in various
Hindi Movies. The dresses worn by dancers in these
bars are usually traditional Indian Dresses like
sarees, ghagra cholis or salwar kameez unlike the
dresses worn by dancers in movies. Similarly the
movements and gestures are far more decent and
orthodox than those in movies. The dances performed
in dance bars are neither obscene, vulgar nor
indecent. The dance performances as held in the
establishments of the members of the petitioner No.1
and as described in Writ Petition No.2450 of 2005 is
as under:-
1. Girls/women wearing traditional Indian
outfits like salwar kameez, sarees or ghaghra
cholis etc. dance on a stage provided in the
Restaurants.
2. There is no physical contact between
dancers and customers.
3. Utmost precaution is taken that no
customer touches any dancer.
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4. Songs are played by either a live
Orchestra and Band or by recorded music. The
songs played are from Hindi films and neither
the lyrics nor the music is changed in any
manner.
5. Dancers perform in a manner similar to
the dances in films and their gestures and
movements are the same as those made by
artistes in the songs.
6. Customers desiring to give tips, hand
over the same to waiters who hand the same
over to the dancers, hence there is no scope
for any physical contact between dancers and
customers.
7. Separate air-conditioned,
changing/dressing rooms with attached toilets
are provided for dancers;
8.Escorted conveyance is provided to dancers
to and from their respective homes to the
Restaurants.
9. Food and beverages are provided to the
artistes.
. In contrast, it is set out that in
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Discotheques, young boys and girls wearing hardly any
clothes and revealing dresses, dance in each others
arms. The said couples are known to consume alcohol
and even new age drugs and all kinds of immoral
activities are being openly carried on there. During
Navratri festival there are programmes called Dandiya
Nights where young boys and girls wearing revealing
and sexy outfits, dance in proximity to each other.
There are no restrictions on these youngsters about
the dresses worn by them or the gestures made by
them. The ban does not cover these dances. The
State, it is set out, is adopting double standards by
allowing these activities where indecent clothes,
movements and immoral activities in the name of high
society are permitted whereas, establishments where
there is no physical contact are sought to be closed
down. The ban seeks to completely wipe out the
performance of dances which as a form of
entertainment/amusement, is accessible to the common
man while the same dancers can perform the same
dances for the rich audiences in Three Star Hotels
and above. The establishment of the petitioners are
frequented by tourists from all over the world who
come to watch the dance. Impressed and inspired by
the dance bars of Mumbai, Restaurants and Bars having
music and dance have opened up in Dubai, Singapore,
London, Malasya, Muscat, Bahrein, Sri Lanka, etc.
where dancers are specially taken from India and
other parts of the world to perform there. The
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excuse sought to be given for exempting hotels of
Three Star and above categories from the ban also
does not hold good. The ban which seeks to ban
dancing in Restaurants and Bars alone, is
discriminatory and violative of Article 14, which
prescribes that the differentia has to be
intelligible.
. Dances are permitted in Three Star Hotels and
above and also in clubs or gymkhanas. . Entry is
permitted in clubs and gymkhanas not only for members
but also for their guests. They are permitted to
hold dance performances. Hence although they are
similarly situated to carry on business, they have
been exempted from the said ban. The fact that dance
performance can be permitted in Three Star and Five
Star hotels and/or any Gymkhana, etc., clearly shows
that the purpose is not to curb exploitation of women
and/or avoid vulgarity, but the same is to promote
the interests of hotels with larger resources at the
cost of eating houses, permit rooms and beer bars
with moderate resources, which cater to all classes
of people. The amending Act, therefore, is clearly
discriminatory and there is no nexus between the
proposed prohibition and the intended result. The
impugned amendment, therefore, has to be struck down
on the touchstone of Article 14 of the Constitution
of India as being clearly discriminatory. In
addition in Criminal Writ Petition No.1971 of 2005,
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it is pleaded that the State has not banned Tamashas.
37. On behalf of the State of Maharashtra Youraj
Laxman Waghmare, Deputy Secretary, has filed an
affidavit in reply. It is set out that the concept
of dance bars thrived after 1980s. The owners of
permit rooms and beer bars with a view to attract
customers, introduced dance shows where extremely
young girls many of whom are minors, started dancing
to tunes of recorded music tunes. It was brought to
the attention of the Government that these eating
houses, permit rooms or beer bars to whom licence to
hold dance performances has been granted were
permitting the performance of dances in an indecent,
obscene and vulgar manner. The dancing girls
invariably used to be clad in dresses, apparently for
name’s sake traditional, but truly revealing female
anatomy. These girls would dance in a peculiar
manner with constant eye contact with certain
customers and with such body movements so as to
attract the attention of customers and entice them,
so that they would be showered with currency notes by
the customers. There used to be virtually a
competition amongst the dancing girls to attract the
attention of the customers so as to be showered with
the maximum amount of currency notes. These girls
were found to be using various tactics to lure the
customers and attract their attention. With the kind
of cash money that was being generated every night
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after night after night at such places, the dance bar
activity started being afflicted by various crimes
and became pick up joints for prostitution by the bar
girls. The group of female dancers mingle with the
customers sitting in these restaurants and bars or
even in the passages, on the loud and sensuous music.
During the dance performance, these female dancers
come close and in physical contact with the customers
present. They deliberately dance in such a manner so
as to lure the passion of the customer in a
derogatory manner in order to solicit handsome cash
rewards in return. The dance steps are vulgar and of
a manner that are unknown to any known or established
dance form and is performed with the sole objective
of rousing the physical lust amongst the customers
present. The customers in that state are being
provoked and prompted to shower the currency notes.
The bar owners provide the facility of changing large
currency notes of Rs.500/- or Rs.1000/- into bundles
of Rs.10/-, or Rs.50/- or Rs.100/- to the customers.
The customers would then themselves stand next to the
girls while they were dancing and shower these
currency notes on the girl who they fancied. After
showering notes, the waiters and employees of the
bar, after each song was over, would pick up the
currency notes from the floor and stash them away.
The money which was showered would be shared between
the bar owners and the dancers in varying ratios
depending from dance bar to dance bar.The customers
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who showered the money would very often be favoured
for extra attention by the dance girls. The sole
object of conducting these dances was not amusement,
but collection of huge cash from the customers, which
was thereafter shared between the dancers and the bar
owner. These dance performances were neither
entertainment nor art. Many of these establishments
were running beyond the time prescribed and
invariably permitting indecent dance performances.
Establishment of such place of public entertainment
having such performances were creating numerous
problems including problems of law and order.
Performance of these dances were nothing but
exploitation of women at very young age many of whom
were minors. With the object to prevent the eating
houses, permit rooms or beer bars from conducting
dances which were derogatory to the dignity of women
and to prevent depravity, corruption or injury to
public morality or morals, the said amendment has
been brought about. Complaints had been received to
point out that under the guise of dance bars
prostitution was being conducted in the places. Bar
owners were exploiting the bar girls for commercial
gain. Many dance bars were situated on the ground
floor of residential buildings and women and young
girls from the building were subjected to daily
harassment, stress and mental trauma whenever they
returned home in the evening or late at night after
dinner, etc., to face a crowd of lascivious men
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customers who would hang around in and outside the
dance bars and make indecent comments and gestures.
Various cases were registered under the PITA Act as
also under Section 294 of I.P.C. Number of offences
were also committed in dance bars and also vicinity
thereof. It is thus averred that the Legislature has
treated dance performance being conducted in eating
houses, permit rooms or beer bars as a separate class
by itself. At the exempted establishments also, such
performances are not being permitted under Section
33(B). The dominant object of the amended Act is to
prevent dance performances which are derogatory to
the dignity of women and likely to deprave, corrupt
and injure the public morality and morals. The
exempted establishments are also not permitted to
conduct any form of such dances, which are derogatory
to the dignity of women and likely to deprave,
corrupt and injure the public morality and morals.
In the exempted establishments also such dance
performances are not going to be permitted even under
Section 33(B). The exemption to these establishments
in other words is not an indirect licence to the
exempted establishments to perform dances as in the
prohibited establishments but to conduct performance
by persons who have acquired skill in western
classical and Indian classical dance forms. The
exempted establishments are subjected to the
conditions of obtaining necessary permission, licence
from various authorities for each performance they
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intend to hold in their establishments. The
authorities have an opportunity to screen and
supervise the nature of performances in these
establishments. The exemption for holding dance
performances in the three starred or above hotels is
with the object of encouraging tourism and the same
is in consonance with the tourism policy of Central
and State Government. Even otherwise five star
hotels are a class by themselves and cannot be
compared with dance bars. It is a distinct category.
The persons visiting these hotels or establishments
stand on different footing and cannot be compared
with people who attend the establishments which are
popularly known as dance bar. They belong to
different strata of society and are class by
themselves. There are only six such star hotels,
holding licence and covered by the exemption provided
under Section 33(B) of the amended provisions. The
class of establishment covered by Section 33(B) are
those conducted by responsible persons/management who
are conscious of their social commitments and
obligations. These are the types of establishment,
which have never conducted any activity of the kind
that was being conducted at the dance bars. The
establishments covered by Section 33B are clearly
distinguishable and separable from the establishments
of dance bars. If the object of the amendment is
taken into consideration it will be clear that the
dance performances that may be conducted at
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establishments covered by Section 33(B) are not like
the one that are intended to be prohibited by the
impugned amendment.
38. In rejoinder on behalf of the petitioners the
allegations as set out in the affidavit in reply of
Waghmare have been denied. It is set out that a
perusal of the gestures and dance performance in the
exempted establishments, would prove beyond
reasonable doubt that the respondents were adopting
hostile attitude towards the dance bars and the
allegations about indecency and vulgarity are all
aimed at the petitioners members, whereas obscene and
indecent activities in the form of fashion shows and
beauty pageants, dance and performances by dance
troupes from abroad are considered to be ’decent’
only because the Venue is in Star Hotels and High
Class places which are visited by film stars, the
very rich and elite families.
. The averments and pleadings of the
petitioners in the other petitions are more or less
same or similar and hence need not be adverted to.
39. Before dealing with the challenge we may
briefly consider the law on the touch stone of the
test of classification. We may set out some of the
tests as were reiterated by the Apex Court in
Shashikant Shashikant Shashikant Laxman Laxman Laxman Kale Kale Kale & & & Anr. Anr. Anr. vs. vs. vs. Union Union Union of of of India India India & & &
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Anr., (1990) 4 SCC 366, Anr., Anr., (1990) 4 SCC 366, by quoting from the decision (1990) 4 SCC 366,
in Re the Special Courts Bill, 1978:-
(a) The State, in the exercise of its
governmental power, has of necessity to make
laws operating differently on different
groups or class of persons within its
territory to attain particular ends in giving
effect to its policies, and it must possess
for that purpose large powers of
distinguishing and classifying persons or
things to be subjected to such laws.
(b) The constitutional command to the State
to afford equal protection of its laws sets a
goal not attainable by the invention and
application of a precise formula. Therefore,
classification need not be constituted by an
exact or scientific exclusion or inclusion of
persons or things. The Courts should not
insist on delusive exactness or apply
doctrinaire tests for determining the
validity of classification in any given case.
Classification is justified if it is not
palpably arbitrary.
(c) The principle underlying the guarantee of
Article 14 is not that the same rules of law
should be applicable to all persons within
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the Indian Territory or that the same
remedies should be made available to them
irrespective of differences of circumstances.
It only means that all persons similarly
circumstanced shall be treated alike both in
privileges conferred and liabilities imposed.
Equal laws would have to be applied to all in
the same situation, and there should be no
discrimination between one person and another
if as regards the subject-matter of the
legislation their position is substantially
the same.
(d) The law can make and set apart the
classes according to the needs and exigencies
of the society and as suggested by
experience. It can recognise even degree of
evil, but the classification should never be
arbitrary, artificial or evasive.
(e) The classification must not be arbitrary
but must be rational, that is to say, it
must not only be based on some qualities or
characteristics which are to be found in all
the persons grouped together and not in
others who are left out but those qualities
or characteristics must have a reasonable
relation to the object of the legislation.
In order to pass the test, two conditions
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must be fulfilled, namely, (1) that the
classification must be founded on an
intelligible differentia which distinguishes
those that are grouped together from others
and (2) that that differentia must have a
rational relation to the object sought to be
achieved by the Act.
(f) The differentia which is the basis of the
classification and the object of the Act are
distinct things and what is necessary is that
there must be a nexus between them. In
short, while Article 14 forbids class
discrimination by conferring privileges or
imposing liabilities upon person arbitrarily
selected out of a large number of other
persons similarly situated in relation to the
privileges sought to be conferred or the
liabilities proposed to be imposed, it does
not forbid classification for the purpose of
legislation, provided such classification is
not arbitrary in the sense abovementioned.
(g) Classification necessarily implies the
making of a distinction or discrimination
between persons classified and those who are
not members of that class. It is the essence
of a classification that upon the class are
cast duties and burdens different from those
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109
resting upon the general public. Indeed, the
very idea of classification is that of
inequality, so that it goes without saying
that the mere fact of inequality in no manner
determines the matter of constitutionality."
40. The submissions on behalf of the petitioners
may now be briefly set out.
. Section 33(B) of the impugned act seeks to
exempt certain establishments from the ban imposed
under Section 33A. Hence the mask of purported
immorality alleged against the bar dancers can
continue in the establishments exempted under Section
33(B). The differentia must have a rational relation
to and should have a nexus to the object sought to be
achieved by the statute. No conditions have been
prescribed in respect of the establishments covered
under Section 33(B). The same rules and regulations
which governed the banned establishments are
alpplicable to the exempted establishments. As a
result the same dancers who are prohibited from
performing the same dance in a prohibited
establishment are permitted to dance in the exempted
establishments. The purported immorality gets
converted to virtue by a mere change of locus. For
breach committed by the Licensees in the category of
Section 33(B) at the highest their licences can be
cancelled, but in case of the petitioners’ members
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110
the business is completely closed. There is a
discrimination between the dancers in various
establishments and the distinction sought to be made
amounts to micro distinction between the class of
dancers who in terms of dancing are a homogenic lot
and class by themselves. (See (See (See A.V. A.V. A.V. Channaiah Channaiah Channaiah vs. vs. vs.
State State State of of of A.P. A.P. A.P. & & & Ors.2005 Ors.2005 Ors.2005 1 1 1 SCC SCC SCC 294). 294) 294) The object of
the impugned legislation as the State has urged is to
prohibit obscene, indecent and vulgar dance
performance. Section 33A and 33B have created two
classes of establishments. The net result is that
dance which is not obscene, vulgar and indecent is
not prohibited in the exempted establishment under
Section 33B whereas dancing in any form including
which is not obscene, vulgar and indecent is
prohibited in all establishments covered under
Section 33A. Equality is the basic feature of the
Constitution and any treatment of equals unequally,
or unequals as equals would be violative of Article
14, as the Article bars discrimination and prohibit
discriminatory laws. Section 33A discriminates
between artists i.e. dance girls dancing in dance
bars and Tamasha theatre and at the same time
discriminates between the viewers visiting dance bars
and Tamasha. Criminal cases under Section 110 of the
Bombay Police Act as also under Section 294 of the
I.P.C. have been registered against the Tamasha
theatre. If the object of prohibiting dance
performance in a dance bar was to prevent
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111
exploitation of women or women trafficking such
object cannot be achieved so long as Tamasha theatre,
three star and other exempted establishments are
allowed to hold dance performances. There was no
material before the legislature in support of banning
dance bars or permitting Tamasha theatre and dancing
in other exempted establishments. There can be no
different standards of morality for the affluent and
the rich for availing the means of entertainment in
the exempted establishments and any common person who
can afford to visit place of entertainment within
their reach. Reliance is placed in the case of
Charanjit Charanjit Charanjit Lal Lal Lal vs. vs. vs. Union Union Union of of of India, India, India, AIR AIR AIR 1951 1951 1951 S.C. S.C. S.C. 41; 41 41
to the Judgment in Shri Shri Shri Ram Ram Ram Krishna Krishna Krishna Dalmia Dalmia Dalmia vs. vs. vs. Shri Shri Shri
Justice Justice Justice S.R. S.R. S.R. Tendolkar Tendolkar Tendolkar & & & Ors., Ors., Ors., AIR AIR AIR 1958 1958 1958 S.C. S.C. S.C. 538, 538, 538,
as also to the State of U.P. Vs. Kaushalya & Ors., State of U.P. Vs. Kaushalya & Ors., State of U.P. Vs. Kaushalya & Ors.,
AIR 1964 S.C. 416. AIR AIR 1964 S.C. 416. 1964 S.C. 416.
41. The entire argument of the petitioners
proceeds on the footing that there is no rationale
for exemption in favour of the exempted
establishments as both are similarly situated and
consequently Section 33A is violative of Article 14
of the Constitution. A perusal of para.31 to 34 of
the reply filed by Youraj Laxman Waghmare shows that
there are only six Hotels from the exempted category
which have got public entertainment and public
amusement licence. No complaint of any kind has been
received against those six institutions. Is it
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112
possible to classify the establishment based on the
type of dance being performed in the establishments?
If the classification is possible then does it have a
rational nexus with the object of the amending Act.
42. In a challenge to a legislation under Article
14, there is no question of application of mind or
non-application of mind by the Legislature to the
material. Also there can be no question of malafides
or lack of good faith on the part of the legislature
whilst enacting the law. Even though the executive
in a given case may have an ulterior motive in moving
a legislation that cannot render the passing of the
law malafide. (See K. K. K. Nagaraj Nagaraj Nagaraj vs. vs. vs. State State State of of of A.P. A.P. A.P. & & &
Ors., Ors., Ors., AIR AIR AIR 1985 1985 1985 S.C. S.C. S.C. 551. 551. 551. If a reform is introduced
it can be done gradually. Not including all does not
make including some invalid. Javed & Ors. Vs.
State of Haryana (2003) 8 S.C.C. 369. While
considering a challenge to the constitutionality of a
provision, the Courts must bear in mind that there is
always a 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.
It must be 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. The Legislature is free to
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recognise degrees of harm and may confine its
restrictions to those cases where the need is deemed
to be the clearest. 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 fact which can be
conceived existing at the time of legislation. While
good faith and knowledge of the existing conditions
on the part of a 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 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. It is settled law that
there can be no objection to material being brought
to the notice of the Court by an affidavit along with
what is specified in the preamble and the statement
of object and reasons of the statute itself, in order
to ascertain whether there was any valid basis for
treating those covered by the Act or excluded by the
Act as a distinct class by itself.
43. The initial burden to prove that the
classification is unreasonable and/or has no nexus
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114
with the object sought to be achieved is on the
petitioners. The petitioners have to allege and
establish by cogent material that other persons or
establishments similarly situate, have been left out
and the petitioner and their establishments have been
singled out for discriminatory and hostile treatment.
(See See See Shri Shri Shri Ram Ram Ram Krishna Krishna Krishna Dalmia Dalmia Dalmia & & & Ors. Ors. Ors. vs. vs. vs. Shri Shri Shri
Justice Justice Justice S.R. S.R. S.R. Tendolkar Tendolkar Tendolkar & & & Ors.(supra). Ors.(supra) Ors.(supra) Once the
initial burden is discharged the State will have to
satisfy the Court that the twin tests are satisfied.
This finds support in the Constitution Bench judgment
of the Apex Court in D.S. D.S. D.S. Nakara Nakara Nakara & & & Ors. Ors. Ors. Vs. Vs. Vs. Union Union Union
of of of India, India, India, (1983) (1983) (1983) 1 1 1 SCC SCC SCC 305 305 305 which has been followed in
B. B. B. Prabhakar Prabhakar Prabhakar Rao Rao Rao & & & Ors. Ors. Ors. Vs. Vs. Vs. State State State of of of Andhra Andhra Andhra
Pradesh Pradesh Pradesh & & & Ors. Ors. Ors. 1985 1985 1985 (Supp.) (Supp.) (Supp.) SCC SCC SCC 432 432 432 and in State State State of of of
Maharashtra Maharashtra Maharashtra vs. vs. vs. Manubhai Manubhai Manubhai P.Vashi P.Vashi P.Vashi & & & Ors. Ors. Ors. (1995) (1995) (1995) 5 5 5
SCC SCC SCC 730. 730. 730. It may be noted that in Nakera (supra) the
Court noted that Article 14 does not merely forbid
discrimination, but the Act must not be arbitrary.
. The rule of parity is the equal treatment of
equals in equal circumstances. The rule of
differentiation is enacting laws differentiating
between different persons or things in different
circumstances. The circumstances which govern one
set of persons or objects may not necessarily be the
same as those governing another set of persons or
objects, so that the question of unequal treatment
does not really arise between persons governed by
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different conditions and different sets of
circumstances. The principle of equality does not
mean that every law must have universal application
for all persons who are not by nature, attainment or
circumstances in the same position and the varying
needs of different classes of persons require special
treatment. The rule of classification is not a
natural and logical corollary of the rule of
equality, but the rule of differentiation is inherent
in the concept of equality. Equality means parity of
treatment under parity of condition. Equality does
not connote absolute equality. A classification in
order to be constitutional must rest upon
discriminations that are substantial and not merely
illusory. The test is whether it has a reasonable
basis free from artificiality and arbitrariness
embracing all and omitting none naturally falling
into that category. (See State of Kerala & Anr. Vs. See State of Kerala & Anr. Vs. See State of Kerala & Anr. Vs.
N.M. Thomas & Ors., 1975 (2) SCC 310). N.M. N.M. Thomas & Ors., 1975 (2) SCC 310). Thomas & Ors., 1975 (2) SCC 310).
. While considering the validity of legislation
as we have noted earlier it is open to the State to
file affidavits and it is for the Courts to consider
the same. However, the validity of the legislation
is not to be judged merely by affidavits filed on
behalf of the State, but by all the relevant
circumstances which the Court may ultimately find and
more especially by what may be gathered from what the
legislature has itself said. Courts are not really
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to concern themselves with the hollowness or the
self-condemnatory nature of the statements made in
the affidavits filed by the respondents to justify
and sustain the legislation. The deponents of the
affidavits filed in the Court, may speak for the
parties on whose behalf they swear to the statements.
They do not speak for the Legislature. Once a
statute leaves the Legislative House, the Court is
the only authentic voice which may echo (interpret)
the interest of the Legislature. This the Court will
do with reference to the language of the statute and
other permissible aids. (See See See Sanjeev Sanjeev Sanjeev Coke Coke Coke
Manufacturing Company vs. M/s.Bharat Coking Coal Manufacturing Manufacturing Company vs. M/s.Bharat Coking Coal Company vs. M/s.Bharat Coking Coal
Ltd. & Anr., AIR 1983 SC 239). Ltd. Ltd. & Anr., AIR 1983 SC 239). & Anr., AIR 1983 SC 239).
44. An argument was advanced that the
establishments which are prohibited under Section 33A
and those which are exempted under Section 33B
constitute a class by themselves in as much as in all
these establishments liquor, beer and wine are sold.
The establishments have common characteristics. It
was,therefore, not open to the State to make mini
classifications amongst persons in the same group and
for that purpose reliance was placed on the judgment
of the Apex Court in E.B. E.B. E.B. Chinnaiah Chinnaiah Chinnaiah vs. vs. vs. State State State of of of
A.P. A.P. A.P. & & & Ors., Ors., Ors., (2005) (2005) (2005) 1 1 1 SCC SCC SCC 394. 394 394 In that case the
State of A.P. had enacted a legislation for
sub-classifying Scheduled Castes into sub-divisions.
The Court was examining whether such a sub-division
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within a class is permissible. The Court noted that
all the castes in the Schedule are deemed to be a
class. The issue, therefore, was whether further
classification amongst a class of scheduled castes
for the very same object of providing reservation is
permissible and if so, would it stand the test of
Article 14 of the Constitution. Relying on the
observation in the case of State of J. J. J. & & & K. K. K. v. v. v.
Triloki Triloki Triloki Nath Nath Nath Khosa, Khosa, Khosa, AIR AIR AIR 1979 1979 1979 SC SC SC 1, 1, 1, the Court held
that as members of scheduled caste form a class by
themselves any further sub classification would be
impermissible. While applying the principles of
classification the Court quoted the observations from
Triloki Nath Khosa, that mini-classifications based
on micro-distinctions are false to our egalitarian
faith and only substantial and straightforward
classifications plainly promoting relevant goals can
have constitutional validity. To overdo
classification is to undo equality. The Court then
held that the castes are recognised pursuant to the
Presidential Notification deserving of special
protection and once the constitution itself has
recognised the castes, it was not open for the State
to make a further sub classification.
. In the instant case what the Legislature has
done is to recognise the establishments having an
eating house, permit room or beer bar into two
distinct classes. The classification unlike in the
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case of E.B. Chinnaiah is not based on a
constitutional requirement. The classification is
based on the type of dancing in the establishment which
has a license for a place of public entertainment and
another license for a place of public amusement.
Such a classification is permissible. See State State State of of of
Kerala Kerala Kerala and and and Anr. Anr. Anr. vs. vs. vs. N.M. N.M. N.M. Thomas Thomas Thomas (1976) (1976) (1976) 2 2 2 SCC SCC SCC 310, 310, 310,
where Mathew J., observed that it is a mistake to
assume that there can be no classification within a
class. If there are intelligible differentia which
separate a group within that class from the rest and
that differentia has a nexus with the object of
classification, there is no objection to a further
classification. However, such classification must
meet the tests as set out earlier bearing in mind the
nexus with the object of the Act.
45. The judgment of the learned Division Bench of
the A.P. High Court was relied upon on behalf of the
petitioners in the case of Big Big Big Way Way Way Bar Bar Bar & & & Restaurant Restaurant Restaurant
and and and etc. etc. etc. vs. vs. vs. Commissioner Commissioner Commissioner of of of Police, Police, Police, Hyderabad Hyderabad Hyderabad and and and
Anr., Anr., Anr., 2003 2003 2003 Cri. Cri. Cri. L.J. L.J. L.J. 1360. 1360 1360 In that case the power
was conferred on the Commissioner to grant licences
under the Hyderabad Public Amusement Rules. The
Commissioner on the ground that some of the licences
were conducting dance in an obscene manner and cases
were booked against them for violation of conditions
of license, imposed total prohibition prohibiting
music and singing and dances in some establishments
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while permitting dancing in other establishments.
The establishments where licence could be granted for
music, singing and dancing were the four star and
five star hotels. It may be noted that in that case,
it was an exercise of power by the Commissioner, who
on account of activities in a class of bars took a
policy decision of imposing total prohibition. It
further appears that no material was placed by the
State in support of the classification. In the
present case it is the legislature which has
categorised the establishments having licences for
eating houses, beer bars or permit rooms into two
different classes. In paragraph 65 of the judgment,
the Court recorded a finding that neither the Act nor
the rules empower the Commissioner of Police to
completely prohibit conduct of singing, music and
dance programmes, in public places of amusement in
the interest of general public. The power conferred
on the Commissioner was to refuse to grant a licence
if, in his opinion, they are obscene or immoral. It
would thus be clear that the Commissioner though had
the power to frame the scheme for providing
guide-lines for running bars and restaurants and
providing punitive measures, had no power to totally
prohibit or restrict as has been done by the
legislature in the instant case and as such the
policy decision to prohibit dancing or music and
singing in a class of establishments was held to be
arbitrary. Though the judgment could be
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distinguished on the ground that there was no power
in the Commissioner, the observation quoted below
will have relevance in deciding the controversy in
issue. Dr. AR. Lakshmanan, J. (as his Lordship
then was) speaking for the Division Bench in the case
of exercise of discretion by the Police Commissioner
prohibiting dance in a challenge under Article 14
observed as under:-
"The policy decision of the respondents would
be unreasonable and cannot be sustained for
yet another reason. By reason of the
impugned policy decision not to grant any
amusement licences to any bars and
restaurants in the state other than four star
and five star hotels, an unreasonable
classification has been made between the two
sets of categories or hotels or restaurants.
There is no guarantee that the four star and
five star hotels will not indulge in such
activities. We are unable to comprehend what
object the State would like to achieve by
making such classification. The activity in
both the categories of hotels/restaurant is
one and the same. As rightly contended by
the learned Counsel appearing for the
petitioners the classification made by the
respondents between four star and five star
hotels as one group and the other star hotels
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as other group is not a reasonable
classification as in both the cases the
permission relate to only music, signing and
dancing. The action of the respondents, in
our considered opinion, would amount to
selective discrimination, offending the
provisions of Article 14 of the Constitution
of India. The classification is not founded
on an intelligible differentia and there is
no rational relation to the object sought to
be achieved by the policy decision under
challenge. As already indicated above, there
is no guarantee that the four star and five
star hotels will not indulge in prohibited
activities. Further, the Act nor the Rules
framed thereunder allow such classification
between the same set of persons."
46. We may now examine whether the petitioners
have prima facie discharged the burden placed on them
to show that the classification is not founded on any
intelligible differentia. The classification may be
based on conditions which are geographical or
according to object or occupation or the like. The
contention on behalf of the State and as argued
before this Court by the Advocate General sets out
that the impugned Act is aimed at prohibiting
activities which are harmful and/or have a tendency
and capacity to be even more harmful to public morals
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and morality and exploitation of women and the
legislature has, therefore, in its wisdom taken a
conscious decision. The object of the impugned
legislation is to prohibit dances which are vulgar,
obscene, indecent and as such derogatory to the
dignity of women and are likely to deprave, corrupt
and injure public morality and morals and further
exploitation of women.
. In the instant case, material had to be
placed by the petitioners, to show that dance as
performed in the banned establishments were also
being performed in the exempted establishments and or
the nature of the dance performed is irrelevant.
From the material placed on behalf of the
Commissioner of Police it would be clear that number
of licences issued in so far as the banned
establishments was 345 and in so far as exempted
establishments are only six. The petitioners,
however, contend that there are atleast another
1000-3000 establishments in which bar dancing is
going on and whose applications are pending before
the Competent Authority either pursuant to orders of
the Court or otherwise. This is seriously disputed
on behalf of the State. Whatever be the position
they belong to the class of banned establishment.
The exempted establishments having a P.P.A. license
as demonstrated by the figures are negligible.
Dancing is both an art and a form of relaxation.
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Dancing may partake of various forms. Couples may
dance together to relax or for entertainment of
others. Skate dancing as a sporting activity is one
illustration. Ballroom dancing another. There are
then other various forms of dancing embedded in the
culture of our regions. There could be a dance
performance by a homogenous groups of males and/or
females and or a heterogeneous group of female and
male dancers, watched by a participating audience and
or the like. The case of the petitioners themselves
is that in their establishments, what is being
performed are dances copied from Hindi films. In
other words a species of dance. The State has placed
material on record in the form of reports and the
affidavit of Waghmare to show that dancers in the
prohibited establishments are being showered by cash,
which money was collected and shared and appropriated
not only by the dancers themselves, but shared
between the owners of the establishments and the
dancers in varying percentages. Though there has
been denial by petitioners in Writ Petition No.2450
of 2005, nonetheless the specific averments by the
State have not been specifically denied. Apart from
that, the reports of Prayas and Chapekar would
clearly indicate that money is being thrown at the
bar dancers which is collected and shared between the
bar dancers and the bar owners. In other words the
owners of the establishment were themselves getting a
percentage of money from the dance performance of the
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dancers. The State’s contention is that such conduct
of dance is not amusement, but collecting of large
amounts of cash from the customers. It will not be
possible to accept the case of the State that this
would not amount to dancing. The fact, however,
would remain based on the various reports including
S.N.D.T. and Prayas that the persons who visit the
establishments of the petitioners atleast some of
them either voluntarily or otherwise part with money,
as the hotel owners themselves have made arrangements
to exchange high currency notes into low currency
notes. The money collected by the dancing girls is
shared between the girls and the bar owners in
varying percentage. It would thus be clear that the
type of dancing in the banned establishments has its
own characteristics. It cannot, therefore, be said
that the classification of the establishments in
which a particular type of dance is being performed
does not constitute two distinct classes and/or
amounts to mini classification amongst dancers and
consequently would be contrary to Article 14 of the
Constitution. We have earlier set out that the
object was to ban dance performances which tend to
deprave, corrupt and injure public morality and
morals and are thus derogatory to the dignity of
women. From the S.O.R. the other object is
exploitation of women. As women other than dancers
can work in the dance bars, the object would be
exploitation of women dancers.
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. The dances performed, therefore, in the prohibited
establishments have a characteristics and traits of
their own and can be said to constitute a distinct
class by themselves. The classification need not be
scientifically perfect or logically complete or which
may satisfy the expectations of all concerned. In
Welfare Welfare Welfare Association, Association, Association, A.R.P. A.R.P. A.R.P. Maharashtra Maharashtra Maharashtra & & & Anr. Anr. Anr. Vs. Vs. Vs.
Ranjit P. Gohil and Ors., (2003) 9 SCC 358. Ranjit Ranjit P. Gohil and Ors., (2003) 9 SCC 358. The P. Gohil and Ors., (2003) 9 SCC 358.
Apex Court observed as under:
"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."
. We thus hold that the exempted establishments
and prohibited establishments constitute two distinct
classes based on the type of dance performance. The
S.O.R. and the amendment itself, indicate the basis
of the classification on the type of dance performed
in the establishments. The establishments have not
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been closed down or prevented from obtaining a
licence for place of public amusement. The
prohibition is limited to the type of the dance
performed in the prohibited establishments. The
State, therefore, has treated the prohibited
establishments as a class by itself, distinct from
the exempted establishments.
47. Another argument advanced on behalf of the
petitioner is that respondents have clubbed all
disparate forms of dances that are performed in the
banned establishments both decent and indecent in one
class and this by itself would be violative of
Article 14 of the Constitution of India. It is
submitted that while all forms of dancing whether
decent or indecent is prohibited in the banned
establishments the dancing whether obscene, vulgar or
indecent performances are not prohibited in three
star and above hotels and it is for the State to
appropriately satisfy that the twin tests have been
satisfied. In the reply filed by Waghmare in Writ
Petition No.2027 of 2005, it is set out that the
exemption is for holding dance performance in sports
clubs, gymkhana and three star and above grade of
hotels by the renowned national and international
artists having acquired skills in the Western
classical and Indian Classical dance forms. As the
petitioners themselves have pointed out, for having a
dance performance, a licence has to be obtained. The
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license imposes conditions which bars indecent and/or
immoral dancing. There can, therefore, be no
question, of the State permitting dance in the
exempted establishments which are immoral or vulgar.
The submission, therefore, on the part of the
petitioners that the State has clubbed all dancing
both decent or indecent in the prohibited
establishments whilst allowing all forms of dances in
establishments which are exempted, really does not
arise as there cannot be dancing which is immoral or
vulgar in any establishments. The classification is
being upheld in view of the traits and
characteristics of the dance and not on the basis
whether it is vulgar or indecent.
48. The issue still remains and which requires to
be answered is whether the legislation prohibiting
all forms of dancing in the prohibited establishment
is arbitrary, as classification is merely a judicial
formula for testing whether the legislation is
arbitrary. Merely because there are two identifiable
classes will not satisfy the other requirement that
the classification has to have a reasonable nexus
with the object of the legislation. If the object of
the legislation is to prohibit dances which are
immoral, indecent, obscene being derogatory to woman
and or which exploit women, then how can a dance
which is not immoral, indecent, obscene and which
does not exploit women, be prohibited.
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. Classification, by itself is not sufficient
to relieve a statue from satisfying the mandate of
the equality clause of Article 14. To be within its
reach it must be demonstrated that the classification
is based on an exercise of intelligent care and
deliberation and bears a close nexus with the object
and is not arbitrary. The Act has treated the
distinct nature of dances performed in the two
establishments for the purpose of a valid
classification. The Act however, does not only
prohibit the type of dance, based on which
classification is upheld, but it goes on to prohibit
all forms of dancing in the prohibited
establishments. Was it permissible for the
Legislature to prohibit all forms of dancing in the
prohibited establishments irrespective of the type of
the dance, for example, the same or similar dances
that are being permitted in the exempted
establishments. That burden the State must discharge
both on the ground that it does not discriminate
between the two classes of establishments but also
that it is not arbitrary. How is a person having a
licence for a place of public entertainment which may
be upto a Grade II Hotel, different from a person who
is having a licence for a place of public
entertainment of Grade III and above as also a Club,
etc. Grading of the hotel depends on the money
invested to provide facilities to the customers.
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Waghmare in his affidavit states that the kind of
persons visiting the Three Star hotels, clubs and
other establishments which are exempted are different
and the owners of such establishments are known for
their social responsibilities. Waghmare was perhaps
not aware of what the Apex Court noted in Gaurav Gaurav Gaurav Jain Jain Jain
vs. vs. vs. Union Union Union of of of India India India & & & Ors.,1997 Ors.,1997 Ors.,1997 8 8 8 SCC SCC SCC 114 114 114 in the
matter of prostitution in five star hotels. This is
what the Apex Court said:
"Prostitution in five-star hotels is a
licence given to persons from higher
echelons."
This has only been set out to point out that
activities which the banned establishments are
accused off are also indulged in the exempted
establishments, in spite of the so-called strata of
society who visit them or in Waghmare’s words that
they are socially conscious or responsible.
Waghmare’s affidavit further sets out that it is only
dances which are not vulgar or obscene which only
will be allowed to be performed in the exempted
establishments. The provisions for controlling
obscene and vulgar dances are the same, whether they
be in the prohibited establishments or exempted
establishments.
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49. We may at this stage note that arguments were
advanced as to what is obscenity. For the purpose of
our discussion we may only refer to the judgment of
the Apex Court in Ranjit Ranjit Ranjit D. D. D. Udeshi Udeshi Udeshi v. v. v. The The The State State State of of of
Maharashtra, Maharashtra, Maharashtra, AIR AIR AIR 1965 1965 1965 SC SC SC 881. 881. 881. The Apex Court has
noted that the test of obscenity as laid down by
Cockburn C.J., has been unformally applied in India.
The test is:-
"....I think the test of obscenity is this
whether the tendency of the matter charged as
obscenity is to deprave and corrupt those
whose minds are open to such immoral
influences, and into whose hands a
publication of this sort may fall....It is
quite certain that it would suggest to the
minds of the young of either sex, or even to
persons of more advanced years, thought of a
most impure and libidinous character."
It is thus clear that stress is laid on the
expression ’tendency to deprave and corrupt’.
Admission to the prohibited establishments as also
the establishments which have a liquor permit or beer
bar is 25 years or 21 years respectively and
voluntarily. In other words it is only an adult
audience, who can frequent the place of public
entertainment having a performance licence to witness
the dance. The test, therefore, would be whether
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those dances in the minds of those who visit those
establishments can be said to have a tendency to
deprave and corrupt. The test of obscenity and
vulgarity will therefore, have to be judged from the
standards of adult persons who voluntarily visit
these premises. That does not mean that because only
adults frequent these premises the State cannot
impose restrictions. It has so done by making Rules
and it is within its competence to impose reasonable
restriction.
50. The Rules for licensing made under the Bombay
Police Act impose conditions to ensure that the dance
performance held are not obscene or against public
morals. The State, wherever there has been violation
of the terms of license has taken steps. Neither the
S.O.R. or the Preamble or the provisions of the Act
or the call attention motion, indicate that the
existing mechanism was not sufficient to prohibit
dances in the banned establishment. When the desire
was felt of putting additional restriction a
Committee was appointed which framed guidelines. The
Government directed the rule making Authorities to
notify the guidelines into Rules which was not done.
There is also power to suspend and cancel the
licence. The State from the material produced on
record has so acted. In these circumstances must the
establishments amongst the prohibited establishments
who have acted within the bonds of law be treated in
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the same manner with those who may have breached the
law? Even amongst those who may have breached hte
law, but whose licences has not been cancelled, must
they be prohibited from having similar dances as in
the exempted establishments. Amongst those who
violated the terms of the licence, the competent
authorities in most cases did not feel the need to
cancel the performance licence, but suspended the
licence or issued a warning. This indicates that the
dance performance was not such as to be derogatory to
women or immoral warranting cancellation of licence.
If, therefore, the kind of dance performed is the
basis of valid classification then how does the State
justify the prohibition of all forms of dancing in
the prohibited establishment.
51. Exploitation of women is a very wide expression.
If the S.O.R. is considered, what it sets out is
that there were complaints from people’s
representatives and members of the public that young
girls desirous of earning easy money were frequenting
these dance bars and that such girls are involved in
immoral activities. If that was a reason for
prohibition, then it cannot be explained why in the
same place of public entertainment, women can work as
waitresses, singers or other allied jobs. In these
circumstances it was the duty of the State to
establish that women dancers alone are being
exploited and not the other women working in those
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133
establishments and/or that the dancers alone amongst
the women who work in the establishments are involved
in immoral activities. The impairment of fundamental
right is dictated by the nature of the right, the
impact on the aggrieved party and the degree of harm
resulting from the said action. Impairment of the
right of the individual and not the object of the
Statute in taking the impugned action is the major
test. It may be noted that we have proceeded on the
presumption that the legislation is constitutional
and that the burden of establishing that the
Legislature has transgressed the constitutional
mandate is always on the person who challenges the
vires. The aforesaid principle is, however, subject
to the exception that if a citizen is able to
establish that Legislature has invaded a fundamental
right, then the State to support the law must place
cogent material in order to save the law. Extensive
reference has been made to the preamble and the
S.O.R. The validity of the Legislation is also being
tested under Article 19(1)(g) which also requires
that the restriction must be reasonable. We may
consider the test in such a case by referring to the
Judgment of the Apex Court in Collector Collector Collector of of of Customs Customs Customs
vs. Sampathu Chetty, AIR 1959 Madras 142. vs. vs. Sampathu Chetty, AIR 1959 Madras 142. The Apex Sampathu Chetty, AIR 1959 Madras 142.
noted that:-
"No doubt, there are situations when the
points regarding a violation of Article 14
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134
and an objection that a restriction is not
reasonable so as to conform to the
requirements of Article 19(5) or (6) may
converge and appear merely as presenting the
same question viewed from different angles.
Such, for instance,are cases when the denial
of equality before power vested, say, in an
administrative authority to affect rights
guaranteed to a citizen is arbitrary, being
unguided or uncanalised. The vesting of such
a power would also amount to the imposition
of an unreasonable restriction on the
exercise of the guaranteed right to trade or
carry on a business, etc. Where, however,
there is guidance and the legislation is
challenged on the ground that the law with
the definite guidance for which it provides
has oustepped the limits of the Constitution
by imposing a restraint which is either
uncalled for or unreasonable in the
circumstances, the scope and content of the
equality is far removed from the tests of
conformity to rational classification adopted
for judging whether the law has contravened
the requirement of equal protection under
Article 14."
For the present we will confine ourselves to the test
of discrimination under Article 14 as the
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135
reasonability of the restriction, will be separately
examined in the context of Article 19(1)(g) though
the test on occasions may overlap.
52. The Petitioners, having licence for place of
public entertainment have been able to establish that
the effect of the amendment impairs their fundamental
right to carry on their trade or business and the
dancers their occupation or profession. The State
had to produce material to satisfy this Court that
its action was not arbitrary and/or not
discriminatory. The distinction sought to be made by
the State based on the class of the establishments
and the kind of persons who frequent the
establishments or those who own them cannot be
supported by law or by our constitutional philosophy.
The financial capacity of an individual to pay or his
social status is repugnant to what the founding
fathers believed when they enacted Article 14 and
enshrined the immortal words, that the State shall
not discriminate. The law for application of a
licence both for place of public entertainment and or
performance makes no such distinction. All who apply
must meet the same tests. The classification has
been upheld on the ground of the distinct type of the
dance performed in the prohibited establishments. If
the dances, therefore, which are permitted in the
exempted establishments are also permitted in the
banned establishments then, considering the stand of
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the State, they would not be derogatory to women and
or amount to exploitation of women and are unlikely
to deprave or corrupt public morals. By using the
expression western classical or Indian classical in
the affidavit is of no consequence, as the Act and
the rules recognize no such distinction. All
applicants for a performance licence have to meet the
same requirements and are subject to the same
restrictions. We are, therefore, unable to
understand as to why non-vulgar and non-obscene
dances cannot also be permitted in the prohibited
establishments as they are still entitled to obtain a
performance licence. If women can work other than as
dancers and that does not amount to exploitation,
then how is it that it becomes exploitation, when
women dance to earn their livelihood. There is no
material to justify the basis for a conclusion, that
there is exploitation. If the test is now applied as
to whether the classification has a nexus with the
object, we are clearly of the opinion that there is
no nexus whatsoever with the object. 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. Section 33A and
consequently Section 33B have, therefore, to be held
to be void being violative of Article 14 of the
Constitution of India.
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53. The Challenge under Article 19(1)(g) by The The Challenge under Article 19(1)(g) by Challenge under Article 19(1)(g) by
the Bar Owners and Bar Dancers: the the Bar Owners and Bar Dancers: Bar Owners and Bar Dancers:
. The challenge can be formulated as under:
1. Section 33A in as much as it prohibits all
dances in the establishments of the bar owners
amounts to a total prohibition and is violative of
their right to carry on trade and business under
Article 19(1)(g) of the Constitution of India.
2. Banning dancing in any form in the
establishments prohibited under Section 33A deprives
the dancers in those establishments of their right to
carry on an occupation or profession and as such
amounts to a total prohibition to carry on their
occupation or profession and is consequently
violative of Article 19(1)(g) of the Constitution of
India.
3. If the prohibition on the facts, amounts to a
restriction then the restriction is not reasonable
and in the interest of the general public.
51. We may now set out the submissions as urged
on behalf of the petitioners Bar Owners in Writ
Petition No.2450 of 2005. Their learned Counsel has
submitted as under:-
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138
. The purpose for which total prohibition is
clamped can be achieved if the relevant authorities
carry out their duties by carrying out inspection and
effectively securing the compliance of the existing
rules. Failure on the part of the concerned
authorities to perform their duties cannot justify
the imposition of a total prohibition. Conducting a
place with music and dance for amusement is an
activity which is res-commercium. However,
activities which are res-extra commercium cannot be
carried on by any citizen. Being inherently harmful,
a citizen has therefore no fundamental right to do
such trade. Dance performance being res commercium
is a part of the petitioners right to carry on
business and it can be regulated, but not prohibited
by the State. The State itself by letter dated 16th
July, 2004 had suggested measures for amending the
Rules for exercising control on Hotel establishments
presenting dance performances. Despite the
communication no action has been initiated by the
concerned Licensing Authorities to amend the Rules.
To impose prohibition there must exist very
exceptional reasons and there must be scientifically
collected data See Hashmutulla Hashmutulla Hashmutulla vs. vs. vs. State State State of of of M.P. M.P. M.P.
(1996) (1996) (1996) 4 4 4 SCC SCC SCC 321. 321. 321. A Writ Court in considering the
data has to be very careful in deciding what data
should be accepted and relied upon. It is further
submitted that the ground of trafficking introduced
at the time of hearing is not contained either in the
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object or reasons clause or in the preamble or in the
call attention motion and it is an afterthought to
achieve the harsh action of imposition of a total
prohibition. However, when the exercise of a
fundamental right is prohibited the burden of proving
that the total ban alone will ensure the maintenance
of the general public interest lies heavily upon the
State.
54. In Writ Petition No.2052 of 2005 it is
submitted that the State has to produce all material
on the basis of which it seeks to justify the
necessity of its legislation and the extent of the
restriction sought to be imposed on the citizens
Fundamental Rights. In other words the
reasonableness of the restriction is required to be
established by an evaluation as to:-
(1) The direct and immediate impact of the
restraint /legislation on the fundamental
rights of the citizens affected thereby.
(2) The inherently pernicious nature of the
act prohibited or its capacity or tendency to
be harmful to the general public.
. Undertaking dance performances by ladies for
a living, is not and cannot be said to be inherently
pernicious or harmful to the general public. In fact
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ladies undertaking dance performances for the
entertainment of men, is part of the cultural
tradition of Maharashtra e.g. Lavnis, Tamashas, etc.
The performance of dances in places of public
entertainment were expressly permitted/licensed under
Section 33(1)(wa) of the Bombay Police Act and the
Rules framed thereunder. Dance performances have
been conducted by ladies in the prohibited
establishments for the past twenty years. The
Government of Maharashtra expressly
permitted/licensed and even encouraged the
establishment of such dance bars. The closing hours
have been extended from 12.30 a.m. to 1.30 a.m. to
2.00 a.m. The Government in exercise of its
appellate powers had granted performance licences
even in 2005 when the amending Act came into force.
The number of such licensed dance bars had increased
from 24 in 1985-86 to 210 in 1995-96 to 2500 in 2005.
75,000 women, earned their livelihood by undertaking
dance performances in such places of public
entertainment. These women supported families,
children and dependents. The petitioners members do
not perform dance in the area demarcated and notified
under the Bombay Prohibition Act. The direct and
immediate effect of the impugned legislation would be
to totally prohibit this lawful profession/calling of
undertaking dance performances in places of public
entertainment and thus deprive these women of their
livelihood. Neither the Act nor its objects and
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141
reasons nor the Government’s affidavit indicates what
changed in April, 2005 or why it was suddenly decided
to totally prohibit dance performances which had been
specifically permitted for the past twenty years. It
is also submitted that the impugned legislation
ex-facie does not indicate the exercise of
intelligent care and deliberation and the reasons
given by the State to impose the restriction/total
prohibition are not supported by any material the
State has placed on record.
. Similar arguments have been advanced on
behalf of the petitioners in Writ Petition Lodging
No.2338 of 2005 as also in Writ Petition No.2587 of
2005 and Criminal Writ Petition No.1971 of 2005
and Writ Petition No.6930 and 6931 of 2005.
55. On behalf of the State the learned Advocate-
General submits that the Act is not violative of
Article 19(1)(g) of the Constitution. In so far as
bar owners are concerned, it is settled law that
there is no fundamental right in them to carry on the
business or sale of liquor. The sale of liquor is a
privilege enjoyed by the Petitioners and hence any
regulation of the said business as is done by the
amending Act could never amount to a violation of
fundamental right, the main activity of the sale of
liquor itself, not being a fundamental right.
Reliance is placed in Khoday Khoday Khoday Distilleries Distilleries Distilleries Ltd. Ltd. Ltd. vs. vs. vs.
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State State State of of of Karnataka Karnataka Karnataka (1995) (1995) (1995) 1 1 1 SCC SCC SCC 574. 574 574 Even otherwise
their right to carry on trade is not prohibited at
the highest they are restricted from carrying on a
particular activity. It is therefore, not a
prohibition, but at the highest a restriction on
their right.
. Dealing with the violation of fundamental
rights of the bar dancers, it is submitted that the
overwhelming material evidence indicates that they
have not adopted this profession out of choice, but
have been forced or misled into the same by middlemen
or other exploitative factors. The element of a free
and informed choice of adoption of a profession is
absent. If the activity is invariably harmful to the
dancers and society and has its foundation in
exploitation of women, to claim to continue the said
activity as a fundamental right is inconsistent with
the constitutional objectives and mission. The
activity of bar dancers originates, exists and
culminates in actions which are contrary to the
constitutional mandate contained in Articles 19(2),
19(6), 23, 39(e) and 51A(e). Even a total
prohibition of such activity ought not to be
classified as a prohibition on a right to practice a
profession. The prohibition is not total and if the
dancer is skilled and a professional, she can dance
at any other place as there is no fundamental right
to practice a profession at a particular place.
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Dancing can be a profession but not bar dancing. The
restrictions imposed by the amending Act are
reasonable. The reasonability of the restrictions is
demonstrated by the fact that they fulfil the mandate
of the Directive Principles and also the mandate of
Article 23. As the Legislation is to implement the
directive principles, it is per se reasonable. The
expression in the interest of general public includes
legislation, in the interest of public order, decency
and morality. The restrictions imposed, satisfy the
test of reasonableness. Even if it is assumed that
bar dancing is a profession and the prohibition is
total, the material on record justifies even a total
prohibition on dance performance in bars and permit
rooms and the experience of the past years shows that
there is no other option. The recitals in the
preamble and SOR cannot be disputed and the Court
must take the same to be correct. The Court in order
to consider the validity of the legislation is not
circumscribed by the Preamble or the SOR and is
entitled to look at all material placed before it.
Every inference possible from the available material
may be drawn so that as far as possible the
legislative will is given effect to.
. On behalf of the Police Commissioner, it is
reiterated that there is no fundamental right atleast
in selling intoxicants like liquor. The bar owners
at best have a statutory right. In so far as bar
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144
dancers are concerned, it is submitted that the
overwhelming number of dancers are illiterate,
poverty stricken women of very tender age who are
driven to dance in bars. There is no professional
skill involved and hence they can seek employment
elsewhere. There is no fundamental right to work in
a particular establishment or place.
. On behalf of the Respondent No.4 in Criminal
Writ Petition No.1971 of 2005, learned Counsel has
submitted that the State action is to defend the
weaker sections from social injustice and all forms
of exploitation and to raise the standard of living
of the people. It necessarily implies that economic
activities,attired as trade or business or commerce,
can be de-recognised as trade or business. At this
point the legal culture and the public morals of a
nation may merge, economic justice and taboo of
traumatic trade may meet and jurisprudence may frown
upon any dark and deadly dealings. This submission
is based on the observations of the Apex Court in
Fatechand Fatechand Fatechand Himmatlal Himmatlal Himmatlal and and and Ors. Ors. Ors. vs. vs. vs. State State State of of of
Maharashtra, Maharashtra, Maharashtra, AIR AIR AIR 1977 1977 1977 S.C.1825. S.C.1825 S.C.1825 Permitting bar
dancing amounts to sexual exploitation of women. In
the instant case the House passed the Legislation
unanimously. It is further assumed that individual
Legislators took into consideration, all aspects
based on their judgment and on their own study of the
subject matter of the legislation, their
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145
communications with their constituents and their own
life experience and common sense. There was not even
a single dissenting voice and considering that, the
Court should accept the value judgment of the
Legislators and as such this Court ought not to
interfere. Reference is made to the observations of
Justice Justice Justice Cardozo Cardozo Cardozo in in in Steword Steword Steword Machine Machine Machine Co. Co. Co. vs. vs. vs. Davis, Davis, Davis,
301 301 301 U.S.548, U.S.548, U.S.548, 590 590 590 (1939) (1939) (1939) where the learned Judge
observed, that all laws in Western civilization are
"guided by a robust common sense". There was
material on record that the activity was detrimental
to the society in many respects and in these
circumstances it was open to the Legislature to act
on the corollary assumption that performance in dance
bars have tendency of being immoral and leading to
anti-social behaviour. It was open to the
Legislature to declare things or activities as being
res extra commercium. Business activities in which
there is dealing in alcohol, lotteries and gaming are
res extra commercium. In the instant case the moral
justification is accompanied by additional legitimate
State interest in matters like safety, public health,
crimes traceable to evils, material welfare,
disruption of cultural pattern, fostering of
prostitution, infiltration of crime, problems of
daily life and the like. Considering the material
before the Court, the legislative determination to
disregard the activity or treat it as not deserving
the status of business or trade should not be
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146
faulted. It is then submitted that it was open for
the Legislature to have prohibited activity of what
has been argued as "Societal harms". The
constitution, it is submitted, has made the
principles of morality the touchstone for judging
reasonableness of a statute and the expression public
interest has always been construed as including,
amongst others, principles of morality. It is
submitted that this is not the case where this Court
should entertain the question whether the
Government’s interest in morality alone would be
sufficient to justify the legislative action when
rights are claimed in respect of speech, expression
and business. If the argument advanced on behalf of
petitioner is accepted, then the State would not be
in a position to impose prohibition or restriction on
any of the freedoms contained in Article 19 and
Article 19 would be a dead letter. It is contended
that merely because the objects and reasons clause
uses the word "illegal bars", cannot be construed to
mean that legislation was intended to hit only the
illegal bars and not the legal bars.
56. From the statistics based on the records
produced by the State, it is seen that there are 345
establishments which have been given P.P.A.
Licenses. In Mumbai there are 307 establishments
having "Place of Public Amusement License". In
Mumbai in 159 establishments having P.P.A. Licenses
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there were altogether 4282 women working as dancers,
singers and waitresses. The figures of cases
registered for indecent behaviour and/or violation of
licensing conditions, are as under:-
-----------------------------------------------------
Sections Year Year Year Year Year Year Total of 2000
2001 2002 2003 2004 2005 Bombay Police Act,1951
-----------------------------------------------------
33(W) 767 559 460 374 410 223 2793
110 4427 2998 2971 2810 2051 2146 17403
-----------------------------------------------------
Total 5194 3557 3431 3184 2461 2369 20196
=====================================================
For offences under Section 110 of the Bombay Police
Act, the maximum punishment is a fine of Rs.1,200/-.
The record shows that there were about 5208
convictions. Offences registered under Section 294
I.P.C. between 2000 and upto 28.08.2005 involved
2995 females and 1957 males. The major arrests were
in 2004, when 1591 females and 1380 males were
arrested. Except for 11 minor girls taken in custody
in 2004 there was no case of minor girls being
arrested between 2000-2005. All cases are pending
trial. There has been no conviction so far. Figures
for cases regarding Immoral Trafficking (Prevention)
Act 1986, shows that in 2000-2001 there were no cases
registered. In 2002, 19 cases were registered, 313
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males and 657 females were arrested of which 08 were
minors. In 2003, 08 cases were registered, 120 males
191 females were arrested which included 16 minor
girls. In 2004, 06 cases were registered and 81
males and 80 females arrested amongst whom were 07
minors. All cases are pending trial. The number of
complaints of domestic violence due to dance bars
between 2002-2005 were 19 in number. Between 2000
and 2005 only 11 PL licences were cancelled and 49
PPEL licences. 90 P.L. Licenses and 341 P.P.E.L.
Llicenses were suspended and warning was issued to in
the case of 14 P.L. Licences and 50 P.P.E.L.
Licences. Whether Appeals were preferred and the
outcome of the appeals are not disclosed. A list of
25 criminal cases registered during 2001 - 2005
associated with dance bars are pending trial. There
is also a list of 21 cases registered between 2000 -
2005 which according to the Police are offences
leading to breach of public order. Regarding the
cases registered for offences amongst others, under
Section 33(W) of the Bombay Police Act, a learned
Judge of this Court Srikrishna J. (as his Lordship
then was) in Girija T. Shetty Vs. Assistant
Commissioner of Police, 1997 (1) All M.R. 256, had
observed as under:-
"The police raided the establishment on a
particular day, picked up 53 different
employees and charged them separately for the
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149
same incident and clock up 56 separate
offences. Unless statistics was being used
for an oblique purpose I see no point in the
manner in which the prosecutions were
launched."
. Taking Mumbai, with a population of 14
million people as a case study, can it be said that
this makes it a case of public order for the Mumbai
District or the locality where the establishments are
situated. The statistics indicate, that the presence
of minor females is between 0.7% to 3.5% depending on
the nature of offence. In offences registered under
Section 110, it appears all the girls and customers
were arrested. The conviction are not necessarily
for obscenity but also for violation of the rule and
terms of licenses. Registration of the cases
individually as observed by Srikrishna J., (as his
Lordship then was), is to inflate the number of
cases. In a case under Section 294 of I.P.C.where
the establishment had a license for cabarat dance, a
Division Bench of this Court in Narendra Narendra Narendra H. H. H. Khurana Khurana Khurana
& Ors. Ors. Ors. vs. vs. vs. The The The Commissioner Commissioner Commissioner of of of Police Police Police and and and Another Another Another
decided decided decided on on on 18th December, 2003 whilst answering a
reference being Criminal Application No.2773 of 2003
held, that to involve Section 294 of I.P.C, the
essential ingredient was "annoyance to others" even
if the act per se was indecent and obscene. The
prosecution before the regular criminal courts would
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150
indicate that there were no juveniles , as they could
not be charged before regular criminal court.
57. Before considering the arguments on the
factual matrix let us examine the effect of the
amending Act. By the legislation what the
Legislature has chosen to do is to ban dancing in any
form in the prohibited establishments. The
prohibited establishments are ‘eating houses’ having
a permit room or beer bar which are described as
places of public entertainment and also having a
license for Public Performance. They fall within the
expression place of public entertainment, as liquor
is served for consumption in or near such place. It
does not necessarily mean that liquor is being served
in the ‘eating house’ as under the provisions of the
Bombay Prohibition Act, liquor can only be served in
a permit room which is a specific demarcated place as
per the plan submitted and approved by the
Authorities where liquor can be served. The activity
of serving liquor itself is not banned, nor is other
amusement banned. In the place of public
entertainment, women are employed as dancers, singers
as also as waitresses. There is no ban in women
working as singers or waitresses or other jobs in the
prohibited establishments. What is banned is the
activity of dancing. Dancing in all eating houses,
beer bars or permit rooms is not totally banned. It
is permissible in the exempted establishments and
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151
such other establishments which the State may notify
for the purposes of tourism. The State, therefore,
has not banned all dancing, in establishments serving
liquor or beer which trade falls under the expression
‘res extra commercium’. The liquor or beer licences
have not been cancelled.
58. The Concept Concept Concept of of of Res Res Res Extra Extra Extra Commercium: Commercium: Commercium: On behalf
of the State learned Advocate General sought to
contend that the activity of young girls/women being
inducted as bar dancers is a de-humanizing process
and trafficking them into bar dancing, completely
lacks the element of conscious selection of a
profession. A activity which has harmful effect on
society cannot ever be classified as a profession or
trade for protection under Article 19(1)(g) of the
Constitution and such dances would be an activity
which is "Res Extra Commercium." In answer on behalf
of the petitioners it is submitted that dancing by
itself or because dancing is performed by young girls
cannot be inherently pernicious nor invariably or
inherently pernicious. Merely because there may be
some instance of prosecution of bar dancers and
establishments having license where dances are
performed by itself cannot result in the activity
being declared as activity which is res extra
commercium. In the earlier part of the judgment we
have adverted to the fact that dancing as a form of
art and expression has been known to our civilisation
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152
from times immemorial. It is reflected in our
cultural activities, carved out in stones and is a
source of a large number of books. The dance and
sculptures many a times are erotic or bordering on
the erotic. Dance, therefore, by itself per se,
cannot be said to be an activity which would be res
extra commercium. The petitioners have produced
voluminous documents, to show that dancing was common
both to religious and secular activities. The
petitioners point out that if we look at the
dictionary meanings of the expressions in the Oxford
Dictionary, they mean as under:-
"Pernicious" - means harmful or injurious;
"inevitable" means that which cannot be
avoided, that sure to happen;
"inherent" means existing as a natural and
permanent part;
"invariably" means never changing customs.
. Let us now understand as to how our Courts
have understood the meaning of the expression ’Res
Extra Communium’. In State of Bombay Vs.
R.M.D.Chambarbaugwala (supra) the Court observed that
activities which have been condemned in this country
from ancient times appear to have been equally
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153
discouraged and looked upon with disfavour in
England, Scotland, the United States of America and
in Australia. Dealing with the activity of gambling
the Court observed that it would be difficult to
accept the contention that those activities which
encourage a spirit of reckless propensity for making
easy gain by lot or chance, which led to the loss of
the hard earned money of the undiscerning and
improvident common man and thereby lowering his
standard of living and driving him into a chronic
state of indebtedness and eventually disrupt the
peace and happiness of his humble home, could
possibly have been intended by our
Constitution-makers to be raised to the status of
trade, commerce or intercourse and to be made the
subject-matter of a fundamental right guaranteed by
Article 19(1)(g). In Khoday Distilleries Ltd.
(supra) the Apex Court held that trading in liquor
would not amount to fundamental right, by holding
that there is no fundamental right to trade or
business in intoxicants. At the same time the Court
did observe that though the citizen has undoubtedly a
fundamental right to carry on business say in ghee he
would not have any fundamental right to carry on
business in adulterated ghee. Similarly, a citizen
has no right to trafficking in women or in slaves or
in counterfeit coins or to carry on business of
exhibiting and publishing pornographic or obscene
films and literature. This is so, because there are
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154
certain activities which are inherently vicious and
pernicious and are condemned by all civilised
communities. Similarly, there are goods, articles
and services which are obnoxious and injurious to the
health, morals, safety and welfare of the general
public. The matter again came up for consideration
before the Constitution Bench in State State State of of of Punjab Punjab Punjab and and and
Anr. Anr. Anr. V. V. V. Devans Devans Devans Modern Modern Modern Breweries Breweries Breweries Ltd. Ltd. Ltd. & & & Anr. Anr. Anr.
(2004) (2004) (2004) 11 11 11 SCC SCC SCC 26. 26. 26. It may be mentioned that though
the Constitution Bench held that there is no
fundamental right to trade in liquor, that was a by
majority opinion, with two learned Judges dissenting
with the view of the majority. We may refer to the
dissenting judgment of S.B. Sinha, J. The learned
Judge observed that the dictionary or legal meaning
of "res extra commercium" means those things which
had been dedicated to the public, such as public
roads, rivers, title of owners, etc. Commenting on
the observations in the judgment as to how the Court
had earlier come to the conclusion that trading in
liquor is an activity res extra commercium, the
learned Judge observed that for the purpose of
determining the issue, the Courts were required to
take into consideration, the history, the social
perceptions vis-a-vis the State policy and other
relevant factors before arriving at a decision that
it is a necessary "social evil". From the above
approach the test which may have to be applied is
whether the activity condemned by civilised society.
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155
An activity. therefore, to become res extra
commercium as per the minority view, will have to be
an activity which is condemned not by our national
notions of morality or decency, but whether those
notions are an accepted norm of civilised society
amongst the nations of the World. We will however,
have to proceed on the test applied in Khoday
Distilleries Ltd. (supra). Dancing as we have noted
earlier is one of the earliest form of human
expression and recognised by the Apex Court as a
fundamental right. If it is sought to be contended
that a particular form of dance performed by a
particular class of dancers is immoral or obscene
that by itself cannot be a test to hold that the
activity is res extra commercium. It can never be
inherently pernicious or invariably or inevitably
pernicious. If the notions of the State as to
dancing are to be accepted, we would have reached a
stage where skimpy dressing and belly gyrations which
today is the Bollywood norm for dance, will have to
be banned as inherently or invariably pernicious. We
think as a nation we have outgrown that, considering
our past approach to dancing, whether displayed as
sculpture on monuments or in its real form. Dancing
of any type if it becomes obscene or immoral, can be
prohibited or restricted. Dancing however would
continue to be a part of the fundamental right of
expression, occupation or profession protected by our
Constitution.
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156
59. The submission on behalf of the Respondents
to contend that the bar owners have no right to carry
on the activity is that the main activity is that of
sale of liquor in which there is no fundamental
right, placing reliance on the judgment in Khoday
Distilleries Ltd. (supra). The Apex Court in that
case was dealing with legislation made by several
States and the issue before the Apex Court was
whether the Appellants/Petitioners before it had a
fundamental right to carry on a trade or business in
liquor. The law was summarised thus, by the Apex
Court:-
(1) The right to practise any profession or
to carry on any occupation, trade or business
does not extend to practising a profession or
carrying on any occupation, trade or business
which is inherently vicious and pernicious,
and is condemned by all civilised societies.
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 business in
crime.
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157
(2) When the State permits trade or business
in the potable liquor with or without
limitation, if any, the State cannot make
discrimination between the citizens who are
qualified to carry on the trade or business.
(3) The State cannot prohibit trade or
business in medicinal and toilet preparations
containing liquor or alcohol. The State can,
however, under Article 19(6) place reasonable
restrictions on the right to trade or
business in the same in the interest of
general public.
The amending Act, as we have noted earlier, has
prohibited a class of establishments which have
permit room and beer bars from having the activity of
dancing. The Legislature under Section 33B has
exempted certain establishments having a permit room
and beer bar where dancing is permitted. The
argument based on Khoday Distilleries (Supra) perhaps
could have been tested, if dancing was carried on in
the permit room, beer bar. But even then, dancing,
because it is being performed in a place where the
State’s privilege is permitted to be exercised,
cannot cease to be a fundamental right, because there
is no fundamental right to trade in liquor. Dancing
in the instant case is not in the permit room or beer
bar, but in a place of public entertainment which is
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the eating house. As the Apex Court has recognised
dancing as a ’fundamental right’, dancing as we have
held earlier cannot be brought under the expression
’Res Extra Commercium as it is an activity res
commercium. However, it is open to the State to
impose restriction or prohibition as long as it is
reasonable and in the interest of the general public.
The burden in a case where the State seeks to
restrict or prohibit a fundamental right in an
activity which is res commercium, is on the State.
The State has to establish that the restriction is
reasonable and in the interest of the general public.
We may now advert to the judgment of the State State State of of of
Gujarat Gujarat Gujarat vs.Mirzapur vs.Mirzapur vs.Mirzapur Moti Moti Moti Kureshi Kureshi Kureshi Kassab Kassab Kassab Jamat Jamat Jamat & & & Ors., Ors., Ors.,
(2005) (2005) (2005) 8 8 8 SCC SCC SCC 534. 534. 534. A Bench of seven Judges was
constituted in view of the earlier Constitution
Benches which had taken the view that there could not
be total prohibition of slaughter of cattle progeny
as held in Mohd. Mohd. Mohd. Hanif Hanif Hanif Quareshi Quareshi Quareshi vs. vs. vs. State State State of of of Bihar, Bihar, Bihar,
AIR AIR AIR 1958 1958 1958 S.C. S.C. S.C. 731 731 731 known as Qureshi-I and subsequent
judgments. In that case, by the Bombay Animal
Preservation (Gujarat Amendment) Act, 1994 a total
prohibition was imposed on the slaughter of the
progeny of the cow. The earlier Constitution Bench
judgments had taken the view that a total ban on
slaughter of she-buffaloes, bulls and bullocks after
they ceased to be capable of yielding milk or of
breeding or working as draught animals could not be
supported as reasonable and in the interest of the
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general public and as such the total prohibition on
slaughter was struck down. The Court departing from
the view in Quereshi-I, held that now there was
enough scientific material placed before the Court
which showed that cow and its progeny even after the
purported age of sixteen are useful on account of
dung and urine that they generate. At the same time
in paragraph 79, the Apex Court observed 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 the general
public, yet, in the present case banning
slaughter of cow progeny is not a prohibition
but only a restriction."
This view was taken on the ground that the
prohibition in so far as the activity of butchers
(kasais) was not total, as the prohibition imposed
was only on the slaughter of cow and her progeny and
as such the ban was total only in regard to slaughter
of one particular class of cattle. Cattle included
buffalo whose slaughter was not banned. Apart from
that the trade in hides, skins and other allied
things could always be carried on and it was not
necessary that animals must be slaughtered to avail
those things. The animal, whose slaughter has been
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prohibited, would die a natural death even otherwise
and in that case their hides, skins and other parts
of body would be available for trade and industrial
activity based thereon. The Court further noted that
the question whether a restriction amounts to a
prohibition is a question of fact. Reliance was
placed in the case of Krishna Krishna Krishna Kumar Kumar Kumar Vs. Vs. Vs. Municipal Municipal Municipal
Corporation Corporation Corporation of of of Bhatapara Bhatapara Bhatapara (2005) (2005) (2005) 8 8 8 SCC SCC SCC 612, 612, 612, to hold
that when prohibition is only with respect to the
exercise of right referable only in a particular area
of activity there was no total prohibition. By
applying the test the Court took the view that only a
part of the activity of the Kasai was prohibited and
such prohibition was a restriction. We may here
itself note that the right to impose a reasonable
restriction includes the right to impose prohibition
as held in Narendra Kumar & Ors. vs. Union of India Narendra Kumar & Ors. vs. Union of India Narendra Kumar & Ors. vs. Union of India
& Ors., AIR 1960 S.C.430) Ors., AIR 1960 S.C.430) was reiterated. Ors., AIR 1960 S.C.430)
60. The activity of having dancing in an eating
house was a part of the business of the bar owner.
The business of the bar owners in so far as running
the permit room or eating house has not been
affected. There is also no prohibition on the bar
owner having entertainment activities except dancing.
It is still open to them to carry on that business.
What is, prohibited is part of an activity of having
dance performed in their establishments. Imposing a
prohibition on a part of the activity is not total
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prohibition but a restriction. The bar owners,
therefore, cannot contend that Section 33A imposes a
total ban or the same amounts to a total prohibition
though the activity of dancing in those places of
public entertainment is totally banned. We therefore
proceed on the basis that it is a restriction and as
such what has to be examined is, whether on the
material produced by the State on record, the
restriction is reasonable and in the interest of the
General Public.
61. We have earlier noted the contention of the
State, that there is no fundamental right to practice
a profession at a particular place and it will be
open to the person who is carrying on that profession
to dance at any other place. We are dealing with an
Act which in other place of public entertainment i.e.
in the exempted establishments, permits dance
activities. It is the contention of the State itself
that the kind and type of the dancing which has been
prohibited was to stop the exploitation of women and
to prevent dances which are immoral and derogatory to
woman. In other words the need to impose the
restriction was on account of a particular type of
dancing, which resulted in exploitation of women
dancers as the dances performed were invariably
immoral. In Sodan Sodan Sodan Singh Singh Singh & & & Ors. Ors. Ors. vs. vs. vs. New New New Delhi Delhi Delhi
Municipal Municipal Municipal Committee Committee Committee & & & Ors., Ors., Ors., (1989) (1989) (1989) 4 4 4 SCC SCC SCC 155 155 155 the
issue involved was hawking in a public place. It is
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in that context that the Apex Court held that the
right to hawk is a fundamental right, yet the hawker
could not contend that he has a right to choose a
particular place or street for hawking. In
Fertilizer Fertilizer Fertilizer Corporation Corporation Corporation Kamagar Kamagar Kamagar Union Union Union (Regd.) (Regd.) (Regd.) Sindri Sindri Sindri & & &
Ors. Ors. Ors. vs. vs. vs. Union Union Union of of of India India India and and and Ors., Ors., Ors., AIR AIR AIR 1981 1981 1981 SCC SCC SCC 344 344 344
the issue before the Apex Court was the right of the
Union to be impleaded as a party in a case where the
management wanted to sell the redundant and retired
chemical plants and equipments on as is where is
basis. In support of their contention it was argued
that the sale without giving them a right to hear
would affect their right to an occupation. It is in
that context the Court held that the sale at the
highest could affect their locum, but it does not
affect their locus, to work as industrial workers.
. Before us are both the bar owners, who
contend that the restriction is not reasonable and in
public interest and the dancers who contend that
prohibiting them to dance in those establishments
amounts to a total prohibition and in the alternative
a restriction which is not reasonable nor in public
interest. If the bar owners themselves close down
their establishments it would not have been open to
the bar girls to contend that prohibiting them to
dance in those establishments amounts to a total
prohibition. The right of the bar girls to dance in
the prohibited establishments is dependent on the bar
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163
owners having a performance license. If that license
is taken away, they cannot dance. In the instant
case there is a total prohibition of dancing by a
legislative act in the banned establishment. They
are not prohibited from dancing elsewhere, though it
may not be easy for them, as was observed by the Apex
Court in Fertilizer Corporation Kamgar Union (supra).
They are restricted from dancing in some
establishments. It is, therefore, not a total
prohibition, but a restriction. Therefore, to strike
down the law the Court has to arrive at a conclusion,
that the restriction is not reasonable and in the
interest of the general public. We may at once note
here that the State has contended that the bar
dancers can dance elsewhere. It has been further
contended that the dance performed in the dance bars
requires no skill. Does that mean that in case of a
musician versed in the use of a particular instrument
or a musician conversant with a particular form of
music, if the State imposes restriction on playing of
a particular instrument or music, then is it an
answer, that the said musician can play some other
instrument or play some other form of music? Are our
fundamental rights so fickle that a citizen has to
dance to the State’s tune? The State if it makes a
law imposing a restriction on a fundamental right
guaranteed under Article 19(1)(g), must satisfy the
Court that the restriction is reasonable and in
public interest. A law which prohibits or restricts
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performance of dance, which forms a part of right to
expression and as commercial exploitation, a part of
trade or business or profession or occupation, is
liable to be struck down unless the material on
record would indicate that the restriction is
reasonable and in the interest of the general public.
This test flows from the requirement of protecting
the fundamental rights of citizens so as not to
denude them by arbitrary State action. The State in
such cases must establish by scientific data in the
form of material that the impact on the fundamental
right of a section of citizens outweighed the
impediment of rights of the general public. The
S.O.R. of the amending Act provides an indication of
the State intent. Firstly, the protection of morals
which has to be tested considering the interest of
the general public and secondly the protection of the
the dancers themselves from exploitation or carrying
on activities which are derogatory to the dignity of
women.
62. The importance of S.O.R. : 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
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165
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.
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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 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 of
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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."
. The use of Statement of Object and Reasons is
permissible for understanding the background ,
antecedant state of affairs in relation to the statue
and the evil which the statue has sought to remedy.
The facts stated in the preamble and the S.O.R.,
appended to any legislation are evidence of the
legislative judgment. They indicate the thought
process of the elected representatives of the people
and their cognizance of the prevalant state of
affairs impelling them to enact the law. There are
important factors which the Court will consider
while testing the reasonableness of the restriction.
63. It is now well settled by a catena of
decisions that it is permissible to look into the
statement of objects and reasons of the Bill which
actuated the step to provide a remedy for the then
existing malady and the circumstances then
prevailing. In Shashikant Laxman Kale (supra) Shashikant Laxman Kale (supra) the Shashikant Laxman Kale (supra)
Apex Court observed thus:
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"17.For determining the purpose or object of
the legislation, it is permissible to look
into the circumstances which prevailed at the
time when the law was passed and which
necessitated the passing of that law. For
the limited purpose of appreciating the
background and the antecedent factual matrix
leading to the legislation, it is permissible
to look into the Statement of Objects and
Reasons of the Bill which actuated the step
to provide a remedy for the then existing
malady. In A. Thangal Kunju Musaliar v. M.
Venkitachalam Potti, the Statement of Objects
and Reasons was used for judging the
reasonableness of a classification made in an
enactment to see if it infringed or was
contrary to the Constitution. In that
decision for determining the question, even
affidavit on behalf of the State of "the
circumstances which prevailed at the time
when the law there under consideration had
been passed and which necessitated the
passing of that law" was relied on. It was
reiterated in State of West Bengal v. Union
of India that the Statement of Objects and
Reasons accompanying a Bill, when introduced
in Parliament, can be used for the limited
purpose of understanding the background and
the antecedent state of affairs leading up to
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the legislation. Similarly, the Pannalal
Binjraj vs. Union of India, a challenge to
the validity of clasification was repelled
placing reliance on an affidavit filed on
behalf of the Central Board of Revenue
disclosing the true object of enacting the
impugned provision in the Income Tax Act.
18. Not only this, to sustain the
presumption of constitutionality,
consideration may be had even to matters of
common knowledge; the history of the times;
and every conceivable state of facts existing
at the time of legislation which can be
assumed. Even though for the purpose of
construing the meaning of the enacted
provision, it is not permissible to use these
aids, yet it is permissible to look into the
historical facts and surrounding
circumstances for ascertaining the evil
sought to be remedied. The distinction
between the purpose or object of the
legislation and the legislative intention,
indicated earlier, is significant in this
exercise to emphasise the availability of
larger material to the court for reliance
when determining the purpose or object of the
legislation as distinguished from the meaning
of the enacted provision."
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In State of Gujarat vs. Mirzapur Moti Kureshi Kassab State of Gujarat vs. Mirzapur Moti Kureshi Kassab State of Gujarat vs. Mirzapur Moti Kureshi Kassab
Jamat, (2005) 8 SCC 534 Jamat, Jamat, (2005) 8 SCC 534, a Seven Judges Bench of the (2005) 8 SCC 534
Apex Court further observed as under:-
"71. The facts stated in the preamble and
the Statement of Objects and Reasons appended
to any legislation are evidence of the
legislative judgment. They indicate the
thought process of the elected
representatives of the people and their
cognizance of the prevalent state of affairs,
impelling them to enact the law. These,
therefore, constitute important factors which
amongst others will be taken into
consideration by the Court in judging the
reasonableness of any restriction imposed on
the fundamental rights of the individuals.
The Court would begin with a presumption of
reasonability of the restriction, more so
when the facts stated in the Statement of
Objects and Reasons and the preamble are
taken to be correct and they justify the
enactment of law for the purpose sought to be
achieved."
64. To understand the expression "reasonable
restriction" we may consider various judgments where
the expression came up for consideration. Firstly,
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the judgment of the Apex Court in the case of
Municipal Municipal Municipal Corporation Corporation Corporation of of of City City City of of of Ahmedabad Ahmedabad Ahmedabad and and and Ors., Ors., Ors.,
vs. vs. vs. Jan Jan Jan Mohammed Mohammed Mohammed Usmanbhai Usmanbhai Usmanbhai & & & Another, Another, Another, AIR AIR AIR 1986 1986 1986 SC SC SC
1205. 1205. 1205. The facts in that case were that standing
orders issued by the Municipal Corporation of
Ahmedabad Municipal Corporation directing the
Slaughter Houses be closed on certain days. We
really are not concerned with the facts there. The
Apex Court on the issue involved, observed as under:-
"Where the law providing for grant of a
license or permit confers a discretion upon
an administrative authority regulated by
rules or principles, express or implied, and
exercisable in consonance with the rules of
natural justice, it will be presumed to
impose a reasonable restriction. Where,
however, power is entrusted to an
administrative agency to grant or withhold a
permit or licence in its uncontrolled
discretion, the law ex facie infringes the
fundamental right under Article 19(1)(g).
Imposition of restriction on the exercise of
a fundamental right may be in the form of a
control or prohibition. But when the
exercise of a fundamental right is
prohibited, the burden of proving that a
total ban on the exercise of the right alone
may ensure the maintenance of the interest of
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general public lies heavily upon the State.
In this background of legal position the
appellants have to establish that the
restriction put on the fundamental right of
the respondent to carry on their trade or
business in beef was a reasonable one. The
Court must in considering the validity of the
impugned law imposing prohibition on the
carrying on of a business or a profession
attempt an evaluation of its direct and
immediate impact upon the fundamental rights
of the citizens affected thereby and the
larger public interest sought to be ensured
in the light of the object sought to be
achieved, the necessity to restrict the
citizen’s freedom, the inherent pernicious
nature of the act prohibited or its capacity
or tendency to be harmful to the general
public, the possibility of achieving the
object imposing a less drastic restraint, and
in the absence of exceptional situations such
as the prevalence of a state of emergency,
national or local, or the necessity to
maintain necessary supplies or the necessity
to stop activities inherently dangerous, the
existence of a machinery to satisfy the
administrative authority that a case for
imposing restriction is made out or a less
drastic restriction may ensure the object
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intended to be achieved."
In considering whether the restriction imposed are
reasonable and in the interest of general public, the
Court referred to the law as set out in the State State State of of of
Madras vs. V.G. Rao AIR 1952 SC 196 Madras Madras vs. V.G. Rao AIR 1952 SC 196 and the test vs. V.G. Rao AIR 1952 SC 196
laid down as under:-
"It is important in this context to bear in
mind that the test of reasonableness,
wherever prescribed, should be applied to
each individual statute impugned, and no
abstract standard, or general pattern of
reasonableness can be laid down as applicable
to all cases. The nature of the right
alleged to have been infringed, the
underlying purpose of the restrictions
imposed, the extent and urgency of the evil
sought to be remedied thereby, the
disproportion of the imposition, the
prevailing conditions at the time, should all
enter into the judicial verdict."
The Court further observed that:-
"Obviously it is left to the court in case of
a dispute to determine the reasonableness of
the restrictions imposed by the law. In
determining that question the Court cannot
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proceed on a general notion to what is
reasonable in the abstract or even on a
consideration of what is reasonable from the
point of view of the person or persons on
whom the restrictions are imposed. The right
conferred by sub-clause (g) is express in
general language and if there had been no
qualifying provision like clause (6) the
right so conferred would have been an
absolute one. To the persons who have this
right any restriction will be irksome and may
well be regarded by them as unreasonable.
But the question cannot be decided on that
basis."
65. We may also gainfully refer as to the
reasonability of the restrictions to the judgment of
the Apex Court in B.P. B.P. B.P. Sharma Sharma Sharma vs. vs. vs. Union Union Union of of of India India India & & &
Ors., 2003 (6) SCALE, 498 Ors., Ors., 2003 (6) SCALE, 498. The Apex Court observed 2003 (6) SCALE, 498
as under:-
"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
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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 expression reasonable restriction has
been considered by the Apex Court in various
judgments. The Apex Court in M.R.F.Ltd. M.R.F.Ltd. M.R.F.Ltd. vs. vs. vs.
Inspector, Inspector, Inspector, Kerala Kerala Kerala Government Government Government and and and Ors., Ors., Ors., 1998 1998 1998 (8) (8) (8) SCC SCC SCC
227, 227 227 has laid down certain tests on the basis of
which the reasonableness of the restrictions imposed
on the the exercise of right guaranteed under Article
19(1)(g) can be tested. The tests are as under:-
(1) While considering the reasonableness of
the restrictions, the court has to keep in
mind the Directive Principles of the State
Policy.
(2) Restrictions must not be arbitrary or of
an excessive nature so as to go beyond the
requirement of the interest of the general
public.
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(3) In order to judge the reasonableness of
the restrictions, no abstract or general
pattern or fixed principles 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 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.
(6) There must be a direct and proximate
nexus or a reasonable connection between the
restriction 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 the constitutionality of the Act will
naturally arise.
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. We may add some more tests which the Apex
Court had adverted to in Papnasam Labour Union v. Papnasam Labour Union v. Papnasam Labour Union v.
Madura Coats Ltd. & Anr., AIR 1995 SC 2200:- Madura Madura Coats Ltd. & Anr., AIR 1995 SC 2200:- Coats Ltd. & Anr., AIR 1995 SC 2200:-
(1) In appreciating such problems and felt
need of the society the judicial approach
must necessarily be dynamic, pragmatic and
elastic.
(2) The reasonableness has got to be tested
both from the procedural and substantive
aspects. It should not be bound by
processual perniciousness or jurisprudence of
remedies.
(3) Restriction imposed on the fundamental
right guaranteed under Article 19 of the
Constitution must not be arbitrary,
unbridled, uncancalised and excessive and
also not unreasonably discriminatory.
Exhypothesis, therefore, a restriction to be
reasonable must also be consistent with
Article 14 of the Constitution.
66. The next question is the meaning of the
expression "restriction". We may at once refer to
the judgment in State State State of of of Gujarat Gujarat Gujarat vs. vs. vs. Mirzapur Mirzapur Mirzapur Moti Moti Moti
Kureshi Kureshi Kureshi Kassam Kassam Kassam Jamat Jamat Jamat & & & Ors Ors Ors (supra) (supra) (supra) where the Apex
Court has held that three propositions are well
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settled:-
(1) "restriction" includes cases of
"prohibition";
(2) The standard for judging the
reasonability of restrictions or restriction
amounting to prohibition remains the same,
excepting that a total prohibition must also
satisfy the test that a lesser alternative
would be inadequate;
(3) Whether a restriction in effect amounts
to a total prohibition is a question of fact
which shall have to be determined with regard
to the facts and circumstances of each case,
the ambit of the right and the effect of the
restriction upon the exercise of that right.
. In State of Maharashatra vs. Himmatbai State of Maharashatra vs. Himmatbai State of Maharashatra vs. Himmatbai
Narendra Narendra Narendra Rao, Rao, Rao, AIR AIR AIR 1970 1970 1970 SC SC SC 1157, 1157 1157 the Apex Court had
held that while striking a balance between rights of
individuals and rights of citizenry as a whole, the
financial loss caused to the individuals becomes
insignificant, if it serves the larger public
interest. As such in Sushila Saw Mills vs. State of
Orissa, 2004 (1) SCC 712, the Apex Court held that
the enactment imposing a total ban of saw mill
business or sawing operations within reserved or
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179
protected forest, was in public interest to which
individual interest must yield. In Krishna Krishna Krishna Kumar Kumar Kumar vs. vs. vs.
Municipal Municipal Municipal Committee Committee Committee of of of Bhatapara, Bhatapara, Bhatapara, (2005) (2005) (2005) 8 8 8 SCC SCC SCC 612 612 612
the Apex Court held that when the prohibition is only
with respect to the exercise of the right referable
only to particular area of activity or relating to a
particular matter there was no total prohibition. In
that case the Constitution Bench was considering the
case of adatiyas operating in a market area. A
certain field of activity was taken away from them,
but they were yet allowed to function as adatiyas.
This was held to be amounting to a restriction.
Applying these tests we have held on the facts that
in the instant case the prohibition amounts to a
restriction.
67. Before we discuss the issue further, let us
examine the aspect of burden of proof. In Saghir Saghir Saghir
Ahmad Ahmad Ahmad & & & Anr. Anr. Anr. vs. vs. vs. State State State of of of U.P. U.P. U.P. & & & Ors., Ors., Ors., AIR AIR AIR 1954 1954 1954 SC SC SC
728 728 728 while acknowledging that there is a presumption
in favour of the constitutionality of the
Legislation, the Apex Court has observed as under:-
"But when the enactment on the face of it is
found to violate a fundamental right
guaranteed under Article 19(1)(g) of the
Constitution, it must be held to be invalid
unless those who support the legislation can
bring it within the purview of the exception
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180
laid down in clause (6) of the article. If
the respondents do not place any materials
before the court to establish that the
legislation comes within the permissible
limits of clause (6), it is surely not for
the appellants to prove negatively that the
legislation was not reasonable and was not
conducive to the welfare of the community."
. In Channaiah (supra) Channaiah (supra) the Apex Court held that Channaiah (supra)
the Constitutional Court much watch and guard the
rights guaranteed by the Constitution and in exercise
of that right it has the power to set aside an Act of
the legislature, if it is in violation of the freedom
guaranteed by the Constitution. In Sanjeev Sanjeev Sanjeev Coke Coke Coke
Manufacturing Manufacturing Manufacturing Company Company Company (supra) (supra) (supra) the Apex Corut held
that once a statute leaves Parliament House, the
Court’s is the only authentic voice which may echo
the intent of Parliament. This the Court will do
with reference to the language of the statute and
other permissible aids.
68. Dance performance of any kind or type is
prohibited by the amending Act in the prohibited
establishments. Dances, however, in the exempted
establishments are permissible. From the affidavit
of Waghmare, it is apparent that dances which are
obscene and/or immoral are not permitted in the
exempted establishments. This would mean the State
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exercises control and can exercise control over
performance under the existing law. In answer to the
call attention motion on 30th March, 2005 the
Honourable Home Minister had replied that the
inspection is being carried out by the Licensing
Authority through the respective Police Station.
Such inspection is done from time to time. It was
also announced that a Committee of Secretaries will
be appointed under the Chairmanship of Additional
Chief Secretary to examine whether the bars in Mumbai
should be continued. It was also stated that
licences at places other than Mumbai were being
cancelled. The Statement of Objects and Reasons,
clearly sets out that it is the indecent, obscene
dances performed in a vulgar manner in the the eating
houses which are prohibited. The eating house itself
is not denied a performance license. The license
provides for entertainment except dancing, as in the
opinion of the State the dances performed were
derogatory to the dignity of women and are likely to
deprave, corrupt or injure public morality or morals.
The S.O.R. refers to the calling attention motion.
The call attention motion was to draw the attention
of the Legislature to the mushroom growth of illegal
dance bars. While replying, the Honourable Minister
stated that performance in many of those places were
without having a performance licence. A statement
was also made that in Mumbai, it was possible to
control the activities, whereas it was not possible
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in the rural areas on account of inadequacy of police
force. The S.O.R. sets out the complaints by
members of the public as also members of the
Legislature, that these places are being used as
meeting points by criminals, pick-up joints for
girls, and such bars are attracting young girls
desirous of earning easy money and are encouraged to
indulge in immoral activities and as such there was a
demand for closure of such establishments. In so far
as the letter from the Chairperson of the State
Commission on Women there is nothing on record that
the Commission conducted any enquiry or survey or the
like to arrive at the conclusion that dancing in the
banned establishments should be prohibited before
writing the letter. It would also be apparent from
the S.O.R. that the entire object or prohibiting the
dances in the establishments was on account of what
is aforestated. There is no prohibition for women
working in such establishments other than dancing.
What this means is that the State accepts that girls
can work in the dance bars but not as dancers. In
fact the Honourable Minister while answering
questions pertaining to the calling attention motion,
was aware of the fact, that if women waitresses are
banned, there could be question pertaining to women’s
rights. The women who were earlier working as
dancers can be employed in those very establishments
in any other capacity including as waitresses. They
can sing, serve as waitresses and other incidental
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jobs. Reference is made to the Preamble and S.O.R.
as the learned Advocate General has relied upon it to
support the restriction. It is, therefore, not the
presence of women in the establishments which has led
to the prohibition, but because of the type of dance
performed in the prohibited establishments which the
Legislature was of the opinion, was indecent, obscene
and vulgar, resulting in exploitation of women and
derogatory to their dignity and likely to deprave,
corrupt or injure the public morality or morals.
There is no prohibition imposed on the running of
permit room or beer bar. Those who patronise the
establishments can still be served liquor or beer in
the permit room or beer bar by women. The girls
serving as waitresses have access to the patrons and
also sit with them as set out in the Chapekar, SNDT
and Prayas reports. No survey or any report was
prepared or commissioned by the State Government,
before the Cabinet took the decision to introduce the
ban. The State, therefore, does not find it
offensive to the morals or dignity of women and/or
their presence in the place of public entertainment
being derogatory, as long as they do not dance. They
can serve liquor or beer to their customers. The
State’s case for prohibiting dances in dance bars is,
that it is dancing which arouses the physical lust
amongst the customers present. There is no arousing
of lust when women serve the customers in the eating
house, but that happens only when the women start
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dancing. The trade or business of having an eating
house or a permit room or a licence for public
amusement to have a dance performance are independent
activities by themselves. The right to dance has
been recognised by the Apex Court as part of the
fundamental right of speech and expression. If that
be so, it will be open to a citizen to commercially
benefit from the exercise of the fundamental right.
This 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. In other words using their skills to
make a living. The 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.
69. Has the State Government discharged its
burden, by placing material, scientific or otherwise,
before the Court which was available at the time the
Legislation was enacted, or even thereafter, which
can include the history of the times, the antecedent
state of affairs and the like.
. In order to support their contention that the
restriction is reasonable the learned Advocate
General has principally relied on the experience of
the Legislature as reflected in the deliberations in
the house, the unanimous passing of the bill, the
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calling attention motion and the reply to it, the
Statement of Objects and Reasons and the preamble to
the Act. The complaints received by the State
Government and other material which has been
documented in two volumes. The report of Subhada
Chaukar published in 1998, report of Prayas as also
SNDT University. The material in the two volumes,
includes the prosecutions launched in respect of
incidents in the prohibited establishments for
offences of obscenity and breach of rules as also
other offences. Legislation, it is also set out is
to give effect to directive principles as contained
in Article 39(e) and the fundamental duties as set
out in Article 51A(e) as also International
Covenants. This has also been canvased on behalf of
the Commissioner of Police and the Home Minister.
. The Petitioners have principally relied on
the report prepared by the SNDT University. The
petitioners have also relied upon the Government
Resolution dated 10th December, 2002 by which a
Committee was formed to suggest measures, to amend
the Rules for exercising control on hotel
establishments presenting dancing programmes and to
take remedial measures to check other undesirable
practises being indulged in hotel establishments
which include prevention of prostitution in hotel
establishments and to take remedial measures to see
that criminals are not sheltered in hotel
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establishments and to frame a code specifying what
type of dance forms should be presented in hotel
establishments and creating a Roving Squad to check
undesirable practices in hotel establishments. One
of the members was Ravipalsingh Gandhi, the Chairman
of AHAR, besides public officials. It was Chaired by
the Principal Secretary ( E. I), Home Department and
several Senior Police Officials. The Committee
prepared its report and it was submitted to the State
Government. Based on the recommendations the State
Government wrote to all District Judicial Magistrates
and Police Commissioners by their communication dated
16th July, 2004 to amend the Rules for exercising
control on Hotel Establishments presenting dance
programmes. The recommendations were as under:-
(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
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of 5 ft. between the railing and sitting arrangement
for customers.
(3) Area of the 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 15 sq.
ft. so that more than 8 dancers cannot dance
simultaneously on the stage having area of 120 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 as 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."
Dealing with the material produced by the State in
the form of the two volumes, have contended that the
material would not support the case that the
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restriction is reasonable. It is also pointed out
that the argument in trafficking is not disclosed by
the S.O.R. or the preamble, but is sought to be
raised for the first time by affidavits filed in the
Court. The material, it is submitted, must be
scientifically collected data and the writ Court has
to be very careful in deciding what data should be
accepted and relied upon. See Hashamutulla vs. See Hashamutulla vs. See Hashamutulla vs.
State of M.P. (1996) 4 SCC 391. State State of M.P. (1996) 4 SCC 391. of M.P. (1996) 4 SCC 391.
70. As late as on 16th July, 2004 the State
Government was of the opinion that recommendations
given by the Committee could be implemented by making
rules and were sufficient to prevent the undesirable
practise going on in hotel establishments which were
having an adverse effect on the society. Though
these recommendations were forwarded to all the
competent authorities who had to enact the Rules,
none of the Licensing Authorities did in fact frame
and notify the make Rules. On 30th March, 2005 the
State Government in answer to a call attention motion
did not find it necessary to prohibit dancing in
dance bars in Mumbai. A statement was made that a
Committee of Secretaries would be appointed to look
into the issue. It was never appointed. Therefore,
the onus on the State is far greater to establish the
reasonableness of the restrictions considering that
in July, 2004 it was of the opinion that imposing
restrictions by way of Rules on performance of dances
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in the prohibited establishments was a sufficient
remedial measure to check other undesirable practice
being indulged in the hotel establishments and in
March, 2005 the Home Minister made a statement in
answer to the call attention motion against
mushrooming of illegal bars, that there was
sufficient police machinery in Mumbai to control
dance bars, but dance bars in rural Maharashtra would
be banned on account of insufficient police force.
From the statement of the Home Minister it is clear
that the main issue was of enforcing the laws in
force. All the material now relied upon except the
Prayas and SNDT reports was available. The directive
principles and fundamental duties stand as they stood
when the directions were issued to implement the
recommendations as also when the amending Act was
introduced. The position of International covenants
is similar. The complaints before the Government
were the same namely that in the prohibited
establishments, prostitution rackets were being run
and they served as pick up joints and that dances are
horrid and obscene in nature and that criminals are
being sheltered in such places. The Legislature, no
doubt, cannot be restricted from enacting a
Legislation even if the Government or its delegates
under the Act were at one point of time of the
opinion that the remedial measures would suffice to
check the undesirable practices. That is within the
exclusive domain of the Legislature. Yet considering
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Article 19(6) and as the act involves deprivation of
a fundamental right, the restriction must be
established to be reasonable and in the interest of
the general public.
71. The reasonableness of the restriction has to
be established by an evaluation as to direct and
immediate impact of the restraint/legislation, on the
fundamental rights of the citizens affected thereby
and the inherently pernicious nature of the act
prohibited or its capacity or tendency to be harmful
to the general public. The restrictions have a
direct impact on the livelihood of those working as
bar dancers in the prohibited establishments apart
from the bar owners right to carry on a trade or
occupation or profession. The right to earn a
livelihood apart from other rights, also flows from
the fundamental right to undertake a calling or
profession. According to the petitioners there were
about 75,000 women who were earning their livelihood
by undertaking dance performances, who supported
families including children and dependents. These
figures are not really supported by any established
material except for bare statements. According to
the State itself in Mumbai alone, there are 1667
establishments having permit rooms and restaurants
and 115 beer bars and restaurants. Out of these 307
had license for place of public amusement where
dances could be legally performed. It is, however,
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191
possible to accept that the a substantial number of
women were employed in the dance bars considering the
membership claimed by Bharatiya Bar Girls Union and
the figures produced by the State that in 154
establishments having P.P.A. license, their records
show that 3248 dancers, 75 singers and 959 lady
waitresses, totaling 4282 women were working and the
material in the Chapekar Report, SNDT University
report and report of Prayas. Undertaking a dance
performance for a living by ladies by itself cannot
be held to be inherently pernicious or harmful to the
general public. Such dance performances are
permitted in the exempted establishments as also in
Tamashas and Sangeet bari - see SNDT Report. In fact
the petitioners contend that ladies undertaking dance
performance for the entertainment of men is part of
the cultural tradition of Maharashtra and
illustrations are given of Lavani, Tamashas, etc.,
which are not banned. In twenty years of existence
of the dance bars their numbers have increased from
about 24 to present 345 the figure given by the State
Government. The closing hours which were earlier
12.30 a.m. have been increased over the years from
12.30 a.m. to 1.30 a.m. and from 1.30 a.m. to 2.00
a.m. Apart from the Committee which was appointed by
the State to remedy the derogatory practices in the
establishments in July, 2004 the Government has not
undertaken any further study or survey of the dance
bars.
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72. Let us now examine the contentions urged by
the State in support of the restrictions with the
material on record. They can be summarised as
under:-
. Dance performances were invariably conducted
at all prohibited establishments in an indecent,
obscene and vulgar manner. The basis for this was
that the music was loud and sensuous; young girls
were employed to attract customers; dancers would
wear dresses which were apparently for names sake
traditional, but which were truly revealing; dance
steps were most vulgar and of a manner unknown to any
known or established dance form and done with the
sole objective of arousing lust; the dance was
merely wild gyrations to the tune of Hindi film songs
in the presence of men and not traditional dance
forms of Bharatnatyam, Kuchipudi, Kathak; the dance
performances were neither entertainment nor art; the
dancers body movements was done so as to attract
certain customers; the dancer would make eye contact
with certain customers to entice them; the dancers
would deliberately dance in such a manner so as to
lure passion of the customer in a derogatory manner
in order to solicit cash rewards and the dance
performances were nothing but exploitation of women;
Indian culture does not approve of this kind of
business, which treat women as a commodity. Dance
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performances were being conducted in violation of the
Rules and the licence conditions and there is no
fundamental right to organise such obscene dance
performances.
73. In M/s.Fatechand Himmatlal & Ors. (supra)
the Apex had observed that "realism in the
Legislature is a component of reasonableness."
. On behalf of the petitioners in Writ
Petition No. 2052 of 2005 and other petitions it has
been submitted that the reasonableness of the
restrictions is required to be established by an
evaluation as to:-
1. The direct and immediate impact of the
restraint/legislation on the fundamental
rights of the citizens affected thereby.
2. Inherently pernicious nature of the Act
or its capacity or its tendency harmful to
the general public.
It is submitted that number of bar dancers has
increased from 23 in 1985-86 to 210 in 1995-96 to
2500 in 2005 and 75,000 women earn their livelihood
by undertaking dance performance, who support their
family, children and dependents. The dance performed
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194
by ladies for living cannot be said to be inherently
pernicious or harmful to the general public as
evidenced by the cultural traditions of Maharashtra
like Lavnis, Tamashas, etc.. The right to perform
dance for living does not emanate from the Bombay
Police Act. This right flows from the fundamental
right of such dancers/ladies to undertake their
calling or profession. These rights have been sought
to be regulated by the Bombay Police Act and the
Rules framed thereunder. The State of Maharashtra
has licenced places of public entertainment for the
past 20 years where dance performances have been
conducted by ladies and had extended closing hours
from 12.30 to 1.30 to 2.00 a.m. and in exercise of
the Appellate Powers have issued licences till 2005.
71. The learned Counsel contend, that the State
seeks to justify the ban/total prohibition of
conducting dance performance of any kind or type by
asserting that:-
(a) dance performances were invariably
conducted at all such establishments in an
indecent, obscene and vulgar manner.
(b) dance performances would be conducted at
such dance bars beyond the prescribed time;
(c) dance bars had become pick up joints for
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prostitution by bar girls.
(d) the manner of conducting dance bars
constituted a threat to public order.
(e) the State Government had concluded that
it was not possible to deal with the
situation within the framework of the
existing laws.
(f) It is submitted to the contention that
dance performances were invariably conducted
indecent, obscene and vulgar manner that no
material has been placed on record that dance
performances of all the 2500 dance bars were
being conducted in an indecent, obscene and
vulgar manner or that this was in the large
number of bars. Dances have been conducted
in the same manner for the past two decades.
Though there are rules in force which permit
suspension or canceling the licence no
performance licences have been suspended or
cancelled. This belies the contention of the
State. It is then submitted that merely
because dance bars are conducted beyond the
prescribed time by itself does not warrant a
total prohibition on conducting any type or
kind of performance in the dance bars. In
answer to the contention that dance bars have
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196
become pick up joints for prostitution by bar
girls, it is submitted that all the 34 cases
registered under PITA from 2000 to 2005 there
were only 15 victim involved and that too
only in one year 2004. The material would
show that there is a steep decline in the
cases registered after 2002. There have been
19 in 2002, 8 in 2003, 6in 2004 and only 1 in
2005 and 5 to 10 cases registered under PITA
as against 2500 bars would clearly
demonstrate that there is no widespread
prostitution related to dance bars. The SRO
would indicate that the concern voiced by the
Legislators was in relation to illegal dance
bars being used as pick up joints. To the
submission that conducting dance bars
constituted a threat to public order, it is
submitted that none of the aspects as
contended on behalf of the petitioners bar
girls relate to public order. It is pointed
out that the figure submitted on behalf of
the State that 2793 cases have been
registered against dance bars from 2000 to
2005 is misleading. Similarly the reference
to 17,403 cases registered under Section 110
is also misleading. Section 110 is a summary
action for disorderly or indecent behaviour
and can only result in imposition of a fine
not exceeding Rs.100/-. It is pointed out
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197
that judgment of this Court Girija Tamappa
Shetty vs. The Assistant Commissioner of
Police, Wagle Estate Division, Dist. Thane &
Ors., 1997 (1) All M.R. 256 would
demonstrate that the State inflates the
figures. In that 56 prosecutions were
lodged. Pursuant to raid of the
establishments on a particular day 56
employees were charged separately under same
sections for the same incident. The Court
observed that in order to consider the
offence is registered against establishment
is nothing but a farce. In so far as the
contention of the State that it was not
possible to deal with the situation within
the framework under the prevailing laws by
itself is no answer. The prohibition imposed
would require exceptional situations such as
the prevalence of a state of
emergency-national or local or that the
necessity to maintain essential supplies, or
the necessity to stop activities inherently
dangerous, the existence of a machinery to
satisfy the administrative authority that no
case for imposing the restriction is made out
or that a less drastic restriction may ensure
the object intended to be achieved.
74. The learned Advocate General in his
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submissions in support of the restriction relies on
the following material:-
a. The experience of the Legislature as
reflected in the debates in the house, the
Calling Attention Motion and the reply;
b. The two volumes of documents produced by
the State;
c. The three reports of Prayas, SNDT and
Shubhada Chaukar;
d. The two affidavits of Shri Waghmare
respectively dated 1st October,, 2005 and 1st
December, 2005;
e. The Preamble and the Statement of Objects
and Reasons (SOR) of the amending Act of
2005 and the directive principles and
fundamental duties;
f. Admissions made by Ms. Varsha Kale as
relied upon by Shri R.R. Patil in his
affidavit.
. It is submitted that the aforesaid material
is sufficient to show that the prohibition of the
activities contemplated by the amending Act fulfils
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the constitutional mandate of Articles 23, 37, 39(e)
and 51A(e) of the Constitution of India and is
essential in the interest of the general public and
is eminently necessary and reasonable.
75. We may, therefore, consider first the system
of licensing which was prevalent before issuing the
licence. Three different licenses had to be obtained
from three different authorities:-
(i) The Mumbai Municipal Corporation for
selling and serving food;
(ii) From the Commissioner of Police for
Premises, Performance and Entertainment
Licences; and
(iii) From the Collector under the Bombay
Prohibition Act, 1949 read with the Bombay
Foreign Liquor Rules, 1953 for selling
liquor.
. In so far as serving of liquor is concerned,
we have noted in the earlier part of the judgment
that it can only be served in a permit room.
. Section 33(1)(w)(i) of the Bombay Police Act,
1951 confers powers to make rules for licensing or
control in the interest of public order, decency or
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200
morality or in the interest of the general public
with such exceptions as may be specified, the
musical, dancing, mimetic or the article or other
performances for the public amusement, including
meals and tamashas which are the same tests for
considering the reasonableness of the restrictions
under Article 19(6).
. Rules 122 and 132 of the Amusement Rules,
1960, in so far as the holder of the performance
licence does not permit committing on the stage or
any part of the auditorium, any profanity or
impropriety of language, any indecency or dress,
dance, movement or gesture. Under Rule 123 prohibits
persons other than the holder of a performance
licence staging on stage or in any part of the
auditorium itself any profanity or impropriety of
language, any indecency of dress, dance, movement or
gesture.
. Some of the Licence conditions of Performance
License amongst others are:-
(i) any exhibition or advertisement whether
by way of posters or in the newspapers,
photographs or nude or scantily dressed
women;
(ii) any mixing of the cabaret performers
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201
with the audience or any physical contact by
touch or otherwise with any member of the
public;
(iii) any act specifically prohibited by the
Rules;
76. We have earlier reproduced the preamble and
the Statement of Objects and Reasons. From the
preamble and SOR the following emerges:-
1. That licensed premises are permitting the
performance of dances in an indecent, obscene
or vulgar manner.
2. Such performance of dances lead to
exploitation of women.
3. Performance of dances in the eating
houses, permit rooms or beer bars in indecent
manner are derogatory to the dignity of women
and are likely to deprave, corrupt or injure
public morality and morals .
4. In the last Budget Session of the
Legislature a Call Attention Motion had been
tabled drawing the attention of the
Government to mushroom growth of illegal bars
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202
and their effect on the society in general
including ruining of families. The members
of the State Legislature both Ruling and
Opposition side had pointed out that such
dance bars are used as meeting points by
criminals and pick up girls for immoral
activities and they have demanded that such
dance bars,therefore, should be closed down.
The dance bars were attracting young girls
desirous of earning easy money and thereby
such girls are involved in immoral
activities. The Government having considered
the complaints received from general public
including People’s Representatives
considering the performance of dance in mind
in eating houses,permit rooms or beer bars
throughout the State.
The following calling attention motion was
tabled on 30th March, 2005 by Shri Vivek
Patil (Panvel):-
"The action to be taken by the Government,
measures and Government’s view on the damages
caused to the number of families due to 42
bars, started from last few months in the
Raigad District at Panvel, Khanda Colony,
Kon, Bhingari, New Panvel, Khalapur, Pen,
etc. destruction of the Indian Culture due
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203
to the bar culture, adverse effects on the
students due to the bars which are in the
vicinity of the Schools, the vices spreading
in the lives of the young in the rural area
due to the impact of the bar culture, a
vigorous agitation conducted by Women Wing of
Shetkari Kamgar Party against the same on 5th
May, 2004 and Rasta Roko Agitation, the
representation given by them to the District
Superintendent of Police Shri Dnyaneshwar
Fadtare with a demand that all the ladies
bars in the District shall be closed within
15 days and demand for cancellation of
licences given to the said bars under the
guise of cultural programmes, instead of
closing down the said ladies bars, the
gradual increase of immoral activities, a
raid by the Local Crime Investigation Branch
on a ladies bar by name "Bay Watch" near
Khalapur Highway on 10-11-2004, the arrest of
34 bar girls and 52 other people therein, the
urgent action taken or to be taken by the
Government regarding the same, measure and
reaction of the State."
. The reply was tabled in the House by Shri
R.R.Patil, Home Minister. In reply to the Calling
Attention Motion the following question was raised:-
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"Whether the Government is going to amend the
statute? and would take the decision of
closing down the dance bars, if necessary,
instead of cancelling the licenses and
imposing minor inactions?
In answer the Home Minister replied to the House as
under;-
".....The Government is fully in agreement
with the view that the young generation is
being cultural harmed. A committee of the
Secretaries will be appointed under the
Chairmanship of Additional Chief Secretary to
examine whether the Bars which are therein
Mumbai from last many years, are to be
continued or not and examine the factors of
legal licences and permissions therein. In
Rural area, the said culture is now
increasing, the same should be stopped before
it further increases. The license granted at
places other than Mumbai will be cancelled as
early as possible. No new licences would be
granted. The places where such Bars are
being run illegally, after obtaining only
eating and liquor licenses, in such cases the
eating and liquor licenses will be cancelled
and all the necessary amendments in the Rules
will be made. The Government may bear losses
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205
to the tune of few crore but in no
circumstances, will allow the new generation
to be destroyed, the damage of the young
generation shall not be tolerated. After
expressing a complete agreement with the
views of the Hon’ble Members, the concerned
Rules will be amended at the earliest and the
steps will be taken to close all the bars at
the other places except Mumbai at the
earliest and the decision will be taken as
per the report submitted by the committee, by
appointing the said committee under the
Chairmanship of Additional Chief Secretary."
. In so far as prohibiting lady waitresses the
Honourable Minister was pleased to state:-
"Hon’ble Speaker, the possibility of needy
ladies amongst the lady-waiters also cannot
be ruled out. If the lady-waiters are
banned,then in that case, there is a
possibility of questions pertaining to the
Women Rights arising. Therefore, the
suggestion made by the Hon’ble Member will be
examined.
This was in answer to a question raised by Vinayak
Nimhan. We have referred to this material, as it has
been placed before us by the Respondents. Its
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authenticity has not been disputed.
77. The petitioners in Writ Petition No.2450 of
2005 have placed material furnished to Shri Manjit
Singh Sethi, who is the petitioner in Criminal Writ
Petition NO.1791 of 2005 under the Maharashtra Right
to Information Act, 2002. From that the following
facts emerged:-
(i) The announcement regarding closure of
dance bars was made by the Minister of Home,
State of Maharashtra in the Legislative
Assembly on 30th March, 2005 at 2.00 p.m.
(ii)The subject regarding closure of dance
bars was discussed in the meeting of the
Council of Ministers of Maharashatra
Government on 11th April, 2005 and 18th May,
2005.
(iii) The petitioners specifically asked for
the copies of the reports done at the
instance of the Government or research done
by the N.G.Os. or Governmental Agency
showing that amusement performance in eating
houses, permit rooms and beer bars in
Maharashtara purportedly led to violation of
dignity of women or depravation, corruption
and injury of public morals. The reply given
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by the Government was that no investigation
of such kind was done by the Government of
Maharashtra or non-Governmental
organisation."
78. The material produced in two Volumes by the
State Government may be summarised as under:-
(1) Complaints received for closure/being
undesirable.
(2) Complaints from Social/Women
organisations.
(3) Arrest of minor girls from the dance bars
under PITA.
(4) Cases of assaulting numbering 23 between
2000 and 2005.
(5) Reports from various Police Stations in
the Bombay Region.
79. We may now consider the three reports relied
upon. The first such report is by one Subhada
Chaukar under the Caption "Premises of Mumbai Bar
Girls" of June 1st 1998. It is a one person report.
It appears that 50 bar girls were interviewed. The
figures of bar girls are reported by her are 1,00,000
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208
to 1,25,000 and the number of such establishments are
100 to 1200. According to the report the women
served in the establishments because of:-
(1) Attraction of big money and need to
shoulder responsibility of looking after the
family.
(2) Misery or ill-treatment at home.
(3) No good husband.
(4) Glamour of the job.
(5) Not fit for marriage.
(6) Out of 50 representative girls 12 lived
with their husbands, 7 were widows and 11
were unmarried.
The report also discloses that tips given are
deposited in a box and at closing time are divided
between the dancer and the owner.
. There are two other reports both carried out,
after announcement of the ban on dances. The State
has relied upon the report prepared by Prayas, a
Field Action Project of the Tata Institute of Social
Science, Mumbai. They interviewed 72 persons. The
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Report on the women shows that before coming to work
in the dance bars, 96% of the women either in their
village or in their present place of residence were
doing some work like farming, zari work, domestic
work, rolling beedies, etc. 90% had family
responsibilities. The report sets out it becomes
clear from the above scenario that elements of human
trafficking are present in the process of entry into
this sector and it fits into the definition of human
trafficking as per the UN protocol to Prevent,
Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the UN
Convention Against Transnational Organised Crime,
2000. Of the women interviewed the kind of work
being done as as follows:-
Dancers 57%
Waiters 26%
No information available 7%
87% were between 18 to 30 years and 6% were less than
18 years. In so far as educational status was
concerned 50% were illiterate, 13% had studied upto
primary level and 17% had studied between 5th to 10th
standard. The marital family status was as under:-
Married : 68%
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210
Unmarried : 21%
Information not available : 11%
47% of the married women were deserted, divorced,
separated or widowed. The report states about their
the physical and mental health, as well as increase
in their sexual exploitation and that the women did
not find any dignity in their work. 33% women were
in fact supporters of the decision to close down the
dance bars even though their livelihood presently
dependent on that option.
80. The petitioners have relied upon the study
conducted by Research Centre for Women Studies, SNDT
Women’s University, "Working Women in Mumbai Bars,
Truths behind the Controversy, under the Heading
"MITH-1". The report sets out that they interviewed
500 women engaged by the dance bars.. About 12.40%
hail from Mumbai and 5% from the rest of Maharashtra.
Others are from rest of the country. In so far as
the age of the dancers, according to the report those
less than 14 years accounted for 0.20.%. Those
between 14 to 18 constituted 6.60%. Those between 19
to 30 constituted 88.20%. Those who started work in
the dance bars 39.80% started between 16 to 18 years.
20.80% between 19-20 years and 18.60% between 21 to
25 years. Those who started between 14-15 were
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10.80%. Those who had started other work i.e. not
in the dance bars at the age less than 14 were
31.62%, 14 to 15 were 13.68%, 16 to 18 were 28.21%.
In other words those who started working earlier
other than in dance bars between 14 and 18 years
accounted for nearly 80%. The earning figures were
then set out which indicate that average earning per
month of 42.80% was less than Rs.10,000/-, 27.20%
between Rs.10,000/- to Rs.15,000/- and about 25.80
earned between Rs.15,000/- to Rs.30,000/-. About
72.80% were shown as the only earner in their family.
In so far as education is concerned, the figure show
42% as illiterate and about 41% having studied from
1st to 8th Standards. The conclusion arrived is that
the ban was imposed in haste. More indepth studies
were required and it is recommended that dance bars
should not be banned and there should be Regulation
for working conditions of dance bar women. The
figures given by the office of the Police
Commissioner of various offences recorded have been
set out earlier.
81. The relevant provisions of the Bombay Police
Act 1951 and the rules made which empower the
Licensing Authority to frame Rules are reproduced
below:-
Section 33(1)(w):
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(i) licensing or controlling places of public
amusement or entertainment;
(ii) prohibiting the keeping of places of
public amusement or entertainment or
assembly, in order to prevent obstruction,
inconvenience, annoyance, risk, danger or
damage to the residents or passengers in the
vicinity;
(iii) regulating the means of entrance and
exit at places of public amusement or
entertainment or assembly, and providing for
the maintenance of public safety and the
prevention of disturbance thereat;
Section 33(1)(wa):
(i) licensing or controlling [in the interest
of public order, decency or morality or in
the interest of the general public], with
such exceptions as may be specified, the
musical, dancing, mimetic or the article or
other performances for the public amusement,
including melas and tamashas;
(ii) a regulating in the interest of public
order, decency or morality or in the interest
or the general public, the employment of
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213
artistes and the conduct of the artistes and
the audience at such performances;
(iii) prior scrutiny of such performances
[and of the scripts in respect thereof if
any, and granting of suitability certificate
therefore subject to conditions if any [by a
Board appointed by the State Government for
the purpose, either for the whole State or
for the area concerned] [the members of the
Board being persons who in the opinion of the
State Government possess knowledge of, or
experience in, literature, the theatre and
other matters relevant to such scrutiny] or
by an Advisory Committee appointed by the
Commissioner, or the District Magistrate in
this behalf; [provision for appeal against
the order or decision of the Board to the
prescribed authority, its appointment or
constitution, its procedure and other matters
ancillary thereto, and the fees (whether in
the form of court fee stamp or otherwise) to
be charged for the scrutiny of such
performances or scripts for applications for
obtaining such certificates and for issuing
duplicates thereof and in respect of such
appeals;]
(iv) regulating the hours during which and
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the places at which such performances may be
given."
From the above provisions it is crystal clear that
the Commissioner of Police can frame Rules for not
only licensing and controlling places of public
amusement and entertainment but also for taking
necessary steps to prevent inconvenience etc. to
residents or passers-by or for maintaining public
safety and for taking necessary steps in the interest
of public order, decency and morality.
. Furthermore, there are Rules known as "The
Rules for Licensing and Controlling Places of Public
Amusement (Other than cinema) and Performance for
Public Amusement including Melas and Tamasha, 1960."
Rules 122 and 123 of the said Amusement Rules, 1960
prescribe conditions for having performances.
"122. Acts prohibited by the holder of a
Performance Licence: No person holding a
Performance Licence under these Rules shall,
in the beginning, during any interval or at
the end of any performance, or during the
course of any performance, exhibition,
production, display or staging, permit or
himself commit on the stage or any part of
the auditorium:-
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215
(a) any profanity or impropriety of language;
(b) any indecency of dress, dance, movement
or gesture;
(c) any offensive personation or
representation of any individual;
(d) anything calculated or likely to excite
feelings of sedition or political discontent;
(e) anything calculated or likely to cause
riot or breach of peace, or to promote or
excite hostile feelings between different
classes, or to wound the religious feelings
of any individual or class of individuals;
(f) any dangerous exhibition or display of a
performance or games with wild beast, except
in so far as it is an interim of performance
in a Circus, which shall be governed by rules
in Chapter XIII of these Rules.
(g) any performance or game involving risk,
damage or danger to the audience or public;
(h) any speech, ceremony or any other item
not covered expressly by the terms of the
Performance Licence and by the script of the
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216
performance for which the Performance Licence
has been granted.
123. Acts prohibited by persons other than
the holder of a Performance Licence and by
others:
(a) any profanity or impropriety of language;
(b) any indecency of dress, dance, movement
or gesture;
(c) any offensive personation or
representation of any individual;
(d) anything calculated or likely to excite
feelings of sedition or political discontent;
(e) anything calculated or likely to cause
riot or breach of peace, or to promote or
excite hostile feelings between different
classes, or to wound the religious feelings
of any individual or class of individuals;
(f) any dangerous exhibition or display of a
performance or games with wild beast, except
in so far as it is an interim of performance
in a Circus, which shall be governed by rules
in Chapter XIII of these Rules.
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217
(g) any performance or game involving risk,
damage or danger to the audience or public;
(h) any speech, ceremony or any other item
not covered expressly by the terms of the
Performance Licence and by the script of the
performance for which the Performance Licence
has been granted.
. The license issued can be revoked or
suspended in terms of Section 162(2) of the Bombay
Police Act, 1951 and the Rules framed thereunder for
breach of the Act or Rules which have been reproduced
earlier. The Rules and the condition of licence have
been framed or imposed according to the petitioners
in the interest of public safety and social welfare
and if the aforesaid Rules are properly implemented,
there cannot be any social problems such as indecent,
obscene or vulgar behaviour or exploitation of women
etc. which are cited as the reasons for introducing
the impugned amendment. The bar owners are agreeable
to pay the salary dues of an officer of the
Respondents to ensure that the provisions of the Act,
Rules and license conditions are not breached, in a
like manner of posting an Excise Officer, where
exciseable goods are stored.
82. Material placed by the State Government would
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show that only 11 PL licence and 49 PPEL licences
were cancelled. The figure of licenses suspended
and/or warnings issued have been set out earlier.
The nature of cases registered under the various Acts
applicable were on the decline from 2000 to 2004.
The number of licenses during that period of time was
on the increase. The dancers danced to popular Hindi
move tunes and imitated the dance steps movements of
Hindi movie actresses. This has not been denied.In
the matter of dress, the Rules of Performance License
expressly prohibited indecency of dress, dance,
movement or gesture as provided in Rule 122(b) and
123(b) framed under the Bombay Police Act. Whenever
there were breaches prosecutions were launched.
There is no material to show that there was nude
dancing or that nudity was on display while the
dancers danced. The licensing authorities had free
access to the establishments and could have taken
steps to suspend or cancel a licence for
contravention of the Rules or license conditions for
indecent dressing. In fact in some cases they have
so done. In so far as conducting performance beyond
prescribed time, as we have noted earlier, the State
in fact has been increasing the timings. Again if
there had been violation of the conditions of license
their licences could have been cancelled. State’s
inaction is no answer when it involves deprivation of
fundamental rights more so of carrying on profession
or occupation for one’s livelihood as the
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restriction cannot be excessive.
. The most serious contention by the State was that
the dance bars have become pick-up joints for
prostitution. The State has produced a compilation
of 34 cases under PITA from 2000 to 2005. That some
of the women were involved in prostitution by itself
would be no answer for the State to take away the
right to livelihood of those others not so involved
unless it was beyond the State’s control. That is
not the case considering the stand of the Home
Minister in answer to the call attention motion and
the number of cases filed. Cases for breach of
conditions of licenses and under the Bombay Police
Act for obscene and vulgar dancing have been
registered under Sections 33(w) and Section 110 of
the Bombay Police Act as also under the provisions of
the Immoral Traffic (Prevention Act) 1956. Of the 10
case histories of girl children relied upon on behalf
of the Commissioner of Police, one was of the year
2005 and the others are of 2004 or earlier. As noted
earlier when the State seeks to prohibit or restrict
a fundamental right, the burden is on the State to
prove that the restrictions were reasonable and in
public interest. As noted earlier, ladies working in
the establishments are not merely dancers though
dancers constitute a large proportion of those
working in the establishments. It is not the State’s
case that those who serve the customers otherwise
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220
than through dancing are not involved in immoral
activities. If the argument of the State is to be
accepted any establishment in the amusement and
hospitality industries which has a large number of
women or where women seek to earn livelihood by
working in restaurants and other places or any
profession of amusement and when they are open to
gazes by men or increasing their lust would have the
effect of women being exploited and/or being picked
up. Every citizen of this country, male or female,
has a right to earn his livelihood with dignity by
carrying on a profession or occupation which is
lawful and as long as the citizen abides by the law
of the land. It is the duty of the State to provide
protection to those lawfully engaged in an occupation
or profession and not deprive them of their
livelihood.
83. It has been submitted that the dance bars,
constitute a threat to public order. The expression
public order had come up for consideration before the
Apex Court on several occasions.
. The issue in our opinion is no longer res
integra having been considered by the Apex Court in
several cases, more specifically in matters
pertaining to preventive detention as under:-
"A person playing loud music in his own house
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221
in the middle of the night may disturb public
tranquillity, but he is not causing public
disorder. ’Public order’ no doubt also
requires absence of disturbance of a state of
serenity in society but it goes further. It
means what the French designate order
publique, defined as an absence of
insurrection, riot, turbulence, or crimes of
violence. The expression ’public order’
includes absence of all acts which are a
danger to the security of the state and also
acts which are comprehended by the expression
’ordre publique’ explained above but not acts
which disturb only the serenity of others."
In Dr. Dr. Dr. Ram Ram Ram Manohar Manohar Manohar Lohia Lohia Lohia v. v. v. State State State of of of Bihar, Bihar, Bihar, AIR AIR AIR
1966 SC 740 1966 1966 SC 740 the expression of maintenance of public SC 740
order was described thus:-
"One has to imagine three concentric circles.
Law and order represents the largest circle
within which is the next circle representing
public order and the smallest circle
represents the security of the State". All
cases of disturbances of public tranquillity
fall in the largest circle but some of them
are outside ’public order’ for the purpose of
the phrase ’maintenance of public order’,
similarly every breach of public order is not
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222
necessarily a case of an act likely to
endanger the security of the State."
The restriction, therefore, must in the interest of
‘public order’. Annoyance even if grave proportions
does not bring the matter within the expression
interest of public order.
Does the material relied upon by the State make out a
case, that the manner of conducting places having bar
dances, constitute a threat to public order. The
case of the State as based on the affidavit filed by
Waghmare can be summarised thus:- Complaints were
received by wives relating to illicit relationship
with bar dancers. This by itself cannot amount to a
threat to public order considering the number of
complaints which the State has produced on record.
The bar girls had to suffer commercial exploitation
and were forced into a situation that used to leave
them with no other option than to continue in the
indecent sector. It is true that there is material
on record to show that many of those who perform
dance in the prohibited establishments are young
girls, a large section being less than 21 years of
age and with only a primary education. Can that by
itself be a ground to hold that they constitute a
threat to public order. Can a girl who may be
semi-literate or even illiterate who may be
beautiful, knows to dance or tries to dance
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223
prohibited from earning a better livelihood or should
such a girl, because of poverty and want of literacy,
be condemned to a life of only doing menial jobs? It
is normal in the hospitality and tourist related
industries to engage young girls. Inability of the
State to provide employment or to take care of those
women who had to take to the profession of dancing on
account of being widowed, or failed marriages or
poverty at home and/or the like cannot result in
holding that their working for a livelihood by itself
constitutes a threat to public order. There is no
sufficient data to show that the women were forced
into that profession and had no choice to leave it.
It is then set out that in or around places where
there are dance bars there are more instances of
murder, firing, thefts, chain snatches and that
public in general and women in the locality feel
unsafe. In what manner dancing by women in dance
bars results in increase in crime which would
constitute a threat to public order atleast is not
discernible. Inebriated men, whether in dance bars
or other bars are a known source of nuisance. The
State has not cancelled the liquor permits to remove
the basic cause of the problem. Maintenance of law
and order is the duty of the State. If drunk men
fight or involve themselves in criminal activity, it
cannot result in denying livelihood to those who make
a living out of dance. It is not the case of the
State that apart from these places, in the rest of
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224
the State the same kind of offences do not take
place. It is true that the State has produced on
record that they have launched prosecutions in 2790
cases under Section 33(w) for cancellation of
licences and 17403 cases have been registered under
Section 110 of the Bombay Police Act. These are
cases of incidents within the establishments and at
the highest have been committed infront of an
audience who have taken no objection to the dresses
worn by the dancers or the kind of dancing. The
public at large are not directly involved. In fact,
as set out earlier, a learned Judge of this Court in
Girija Girija Girija Timappa Timappa Timappa Shetty Shetty Shetty vs. vs. vs. Assistant Assistant Assistant Commissioner Commissioner Commissioner of of of
Police, Police, Police, 1997 1997 1997 (1) (1) (1) All All All M.R. M.R. M.R. 256, 256 256 has taken note of the
fact that in order to inflate the figures, the Police
would register separate case against every customer
and employee present. Even otherwise we are unable
to understand as to how, if there be a breach of Rule
by an establishment, that would constitute a threat
to public order. An illustration has been given of
one Tarannum as having links with the underworld. At
the time of hearing of this petition the Police had
not even filed a charge sheet. Even otherwise a
solitary case cannot constitute a threat to public
order. It has also been pointed out that the
Legislature has noted that the dance bars are used as
meeting places for criminals. This defies logic, as
to why criminals should meet at the dance bars where
they could easily be noted by the police. Criminals,
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225
we presume, meet secretly or stealthilly to avoid the
police, unless they are confident that they can meet
openly as the law enforcement itself has collapsed or
they have friends amongst the enforcement officers.
Even otherwise, how does a mere meeting of persons
who are charged or accused for criminal offence
constitute a threat to public order? Do not they
meet in other places? It is then pointed out that
the nature of business of dance bar is such that it
is safe for criminals and immoral activities and this
constitutes a serious threat to public order. The
entire case of the State has been that it is only
those dance activities which are associated with
permit rooms and beer bars which are prohibited and
that too in a class of establishments. In other
words it is not dancing per se which results in
criminal activities which constitutes a serious
threat to public order but ...... type of dancing in
places which have permit room or beer bar. Serving
of liquor we presume is the basis of all evil that
the State perceives, but that has not been banned and
liquor continues to be served in the establishments,
when there can still be performances like playing
music by girls, singing by girls, girls being
employed as waitresses and other incidental jobs. It
was on the State to show that the dance bars were
being conducted in the manner which was a threat to
public order. The bars continue to operate with all
activities except dancing. The State has been unable
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226
to establish a nexus between dancing and threat to
public order.
84. It is next contended that it was not possible
to deal with the situation within the existing frame
work under the prevailing laws. It was pointed out
that though the State has initiated action under
Section 294 of I.P.C. it was not possible to secure
a conviction as the State had to prove obscenity and
annoyance to customers. This by itself would
indicate that the dance performance inside the
premises are not lobscene or immoral as to cause
annoyance amongst those who gathered to watch the
performance. How that could cause annoyance to those
who do not watch it or affect public order is not
understood. It is like saying that watching a Hindi
movie which has dance sequence and the dancers are
skimpily dressed, would result in affecting public
order. It is then submitted that though the Police
were prompt in taking action under the prevailing
enactments, the accused being successful in getting
around the law and continued to indulge in the same
activities again. Failure of the police to secure a
conviction cannot be a valid ground to impose a
restriction on a fundamental right. Apart from that
the pronouncement of this Court under Section 294
would be the law. How can then the State still
insist that the performance of dance was obscene or
vulgar and caused annoyance to the public? If that
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227
was so, they could have taken steps to cancel the
performance licences.
. There is no material placed before us to show
that it was not possible to deal with the situation
within the framework of the existing laws except for
the bare averments. The Regulation framed under
Section 33(w) of the Bombay Police Act more so
Regulation 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 there exists sufficient
power. Exercise of that power does not require the
initiation of any proceedings before a Court or
judicial forum. No material has been placed on
record to show whether the authorities so empowered
at any point of time have taken any action. The
State has also not been able to show that inspite of
the powers conferred on the authorities why the
dancers were allowed to perform dances which were
indecent or gestures which were immoral as it was in
their power. If the State had placed material to
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228
show that they had taken all reasonable steps and
inspite of that the activities continued, it would
have been open to the Court to consider the argument
in a different context.
85. We may now consider the argument based on the
effect of directive principles. The argument is not
based on Article 31-C of the Constitution, but on the
basis, that an act which seeks to implement the
directive principles contained in Part IV will make
the ’restriction’ reasonable and in the interest of
general public. This principle has been accepted In
Pathummma Pathummma Pathummma & & & Ors. Ors. Ors. vs. vs. vs. State State State of of of Kerala Kerala Kerala AIR AIR AIR 1973 1973 1973 2 2 2 SCC SCC SCC
1 The Apex Court so understood it from the
propositions as set out in the case of His His His Holiness Holiness Holiness
Kesavananda Kesavananda Kesavananda Bharati Bharati Bharati Sripadagalvaru Sripadagalvaru Sripadagalvaru vs. vs. vs. State State State of of of
Kerala Kerala Kerala and and and Anr., Anr., Anr., (1973) (1973) (1973) 4 4 4 SCC SCC SCC 225. 225 225 Whilst
considering the tests to examine whether the
restriction is reasonable, the Court has to bear in
mind the directive principles of State Policy. In so
doing the Court must take intelligent care and
deliberation in choosing the course which is dictated
by reason and good conscience so as to strike a just
balance between the freedom in the article and the
social control permitted by the restrictions under
the article. The Court must also bear in mind that
there must be a direct and proximate nexus or a
reasonable connection between the restriction imposed
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and the object which is sought to be achieved. The
message in Kesavananda Bharati is clear, that the
interest of the citizen or a section of a community
is secondary to the interest of the country or
community as a whole. The restriction placed on any
fundamental right in securing the directive
principles will be held as reasonable, subject to the
other limitations, namely that the Act does not run
in clear conflict with the fundamental rights and
secondly that it was within the legislative
competence of the enacting Legislature. In the
instant case the Respondent State has relied on
Article 39-(e) and 39(f). Article 39(e) provides
that the health and strength of workers, men and
women, and the tender age of children are not abused
and that citizens are not forced by economic
necessity to enter avocations unsuited to their age
or strength. Article 39(f) sets out that children
are given opportunities and facilities to develop in
a healthy manner and in conditions of freedom and
dignity and that childhood and young are protected
against exploitation and against moral and material
abandonment. In the instant case in so far as
children are concerned, if the report of Prayas is
considered (which gives figures on the higher side)
out of 72 persons interviewed, miner girls
constituted 18%. By the very nature of licence
minors could not have been employed and, therefore,
it was in breach of the licence conditions. The
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argument, therefore of invoking Article 39(f) is
totally misplaced. In so far as health of men and
women are concerned and tender age of children, again
from the report of Prayas, dancers constitute 57% of
the women interviewed and waiters 26% of the women
interviewed and there was no information available of
the balance 17%. We fail to understand as to how the
object of the directive principles could be achieved
by only prohibiting women from dancing, but not
prohibiting women from serving in the permit room,
liquor bar and eating house. On the other hand the
study notes that the women workers in the dance bars
come from poverty stricken or marginalised
background. The findings are that before these women
came to work in dance bars, 90% were either working
in the villages or their present place of residence
and were doing work like farming, zari work, domestic
work, rolling beedies, etc. 90% of the women had
family responsibilities. For the sustenance of their
family, it became necessary for them to work and earn
a livelihood. Of the women interviewed 68% were
married, 21% were unmarried and about 11% information
was not available. Amongst the married 33% were
deserted, 8% were divorced and 6% were widows. 71%
of the women had children who were undertaking
primary or secondary education. They were worried
about the education, health and day-to-day needs of
their children. Their earnings ranged from Rs.50/-
to Ras.500/- per day. Article 38 enjoins on the
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231
State to secure a just social order for the promotion
of welfare of the people, by striving to promote the
welfare of the people by securing and protecting as
effectively as it may be a social order, in which
justice, social, economic and political, shall inform
all the institutions of the national life. Article
41 enjoins upon the State within the limits of its
economic capacity and development to make effective
provision for securing the right to work, to
education and to public assistance in cases of
unemployment. If we examine, therefore, the argument
advanced on behalf of the State based on the
directive principles, in our opinion apart from the
fact that the Statement of Objects and Reasons or
Preamble make no reference thereto the women work in
the dance bars because of economic necessity. They
need to support their family and most of all to feed,
clothe and educate their children, which the State is
not able to provide. We must bear in mind that many
of these women are widowed, deserted or divorced.
They not only work as dancers, but also as waiters
and other allied jobs in the prohibited
establishments to earn a decent living for themselves
and their families. That some may be exploited is no
answer to prevent others from earning their
livelihood by a vocation of their choice may be
sometimes involuntarily. Under Article 51A(2), it is
open to the State to enact legislation to prohibit
the practices which are derogatory to women. That
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232
does not mean that the State can take away the
fundamental right of the bar dancers to dance,
without producing material including scientific data.
This the State has not done in the instant case. In
our opinion, therefore, considering the tests laid
down by the Apex Court considering the fundamental
right to a profession or occupation, the directive
principles really do not come into play on the facts
of the case. If in fact, children are employed
contrary to the Rules, the licensing authorities are
duty bound to take severe action against such
establishments including by way of cancelling the
licenses.
. In so far as the bar owners are concerned, there
is no material produced by the State to show as to
why their establishments are singled out from having
the same or similar dances which are permitted in the
exempted establishments as also other establishments
having Tamashas etc. The rules for licensing of
dancing in the establishments are the same. The
enforcing agencies are the same, and the punishment
which can be imposed is also the same.
86. The other argument advanced on behalf of the
State based on the affidavit and the report of Prayas
is that there are elements of trafficking in the
process of entry into the dance bar. It is submitted
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that overwhelming material evidence indicates that
the bar dancers have not adopted the profession out
of choice, but have been forced or misled in the same
by middlemen or other exploitative factors. The
element of free and informed choice of adoption of a
profession is absent. The activity of bar dancing is
invariably harmful to the dancers and society and has
its foundation in exploitation of women and the
dancers cannot claim the said activity as a
fundamental right. Such activity of dancing
originates, exists and culminates in actions which
are contrary to the constitutional mandates contained
in Articles 19(2), 19(6), 23, 39(e) and 51A(e). The
entire process of induction of young girls/women as
bar dancer is a de-humanizing process and trafficking
them into bar dancing completely lacks the element of
conscious selection of a profession. At any rate it
is set out that if the prohibition is not total and
the dancer is skilled and professional, she can dance
at any other place. The restrictions, therefore, are
reasonable. Even assuming that the prohibition is
total it is submitted that the State has produced
sufficient material to justify the total prohibition
in bars and permit rooms and the experience of past
years shows that there is no other option. The Court
must also bear in mind that recitals in the preamble
and the SOR cannot be disputed and the Court must
take the same to be correct. Reliance for that
purpose is placed on Question 4, as formulated in
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234
State of Gujarat vs. Mirzapur Moti Kureshi Kassab
Jamat & Ors.(supra). The Apex Court there observed
as under:-
"The facts stated in the preamble and the
Statement of Objects and Reasons appended to
any legislation are evidence of the
legislative judgment. They indicate the
thought process of the elected
representatives of the people and their
cognizance of the prevalent state of affairs,
impelling them to enact the law. These,
therefore, constitute important factors which
amongst others will be taken into
consideration by the Court in judging the
reasonableness of any restriction imposed on
the fundamental rights of the individuals.
The Court would begin with a presumption of
reasonability of the restriction, more so
when the facts stated in the Statement of
Objects and Reasons and the preamble are
taken to be correct and they justify the
enactment of law for the purpose sought to be
achieved."
It is further submitted that from the material on
record, the overwhelming number of dancers are
illiterate, poverty stricken women, of very tender
age, who are driven to dancing in bars. As there is
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235
no professional skill involved in bar dancing, the
bar dancers are capable of seeking employment in
other unskilled jobs. Apart from that, it is
submitted that there is no fundamental right to carry
on an occupation by insisting on working in a
particular establishment or a series of
establishments. The further submission advanced is
that the State action is to defend the weaker section
from social injustice and all forms of exploitation.
The Coalition Against Trafficking in Women(CATW) in a
presentation titled "Prostitution: A Contemporary
Form of Slavery - CATAW presentation to the United
Nations Working Group on Contemporary Forms of
Slavery, Author Dorchen Leidholdt, Co-Executive
Director of CATW wrote as under:-
"The focus of our work is on sexual
exploitation, which we define as the sexual
violation of a person’s human dignity,
equality, and physical or mental integrity
and as s practice by which some people
(primarily me) achieve power and domination
over others (primarily women and children)
for the purpose of sexual gratification,
financial gain, and or advancement....."
. No explanation is given as to why it amounts
to trafficking only for dancers and not other forms
of work by the women, like waitress, singers and
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236
other jobs. The State did not conduct any study in
support of the argument that there were elements of
trafficking. Though the State has launched various
prosecutions, no material has been brought on record
from those cases that the women working in the bars
were forced or lured into working in the bars and
there was no voluntariness and that they were sent
back to their villages or homes or from where they
have been lured on their complaints or complaints of
N.G.Os. or concerned citizens. The statement of
Objects and Reasons and the Preamble also does not so
indicate. The large number of N.G.O.s who are
Petitioenrs before this court would indicate
otherwise. It is only in the report of Prayas which
conducted the study, after the Government had taken
decision to ban, that there is some reference to
trafficking. To support the charge of trafficking in
order to prohibit or restrict the exercise of a
fundamental right, the State had to place reliable
material which was available when the amending Act
was enacted or even thereafter to justify it. A
Constitutional Court in considering an act directly
affecting the fundamental rights of citizens, has to
look beyond narrow confines to ensure protection of
those rights. The State to restrict or prohibit
these rights must produce sufficient material
justifying its action. In answer to the call
attention Motion, an admission was made by the Home
Minister and it is also stated in the statement of
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237
Objects and Reasons that young girls were going to
the dance bars because of the easy money they earned
and that resulted also in immoral activities. There
was no mention of trafficking. No case of
trafficking has been established.
87. Is the restriction in the interest of general
public?. In In In Municipal Municipal Municipal Corporation Corporation Corporation of of of City City City of of of
Ahmedabad Ahmedabad Ahmedabad and and and others others others vs. vs. vs. Jan Jan Jan Mohammed Mohammed Mohammed Usmanbhai Usmanbhai Usmanbhai and and and
Another Another Another AIR AIR AIR 1986 1986 1986 SC SC SC 1205 1205 1205 the expression in the
interest of general public was considered and this is
how what the Apex Court expressed itself:-
"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. Nobody can dispute a law
providing for basic amenities; for the
dignity of human labour like provision for
canteen, rest rooms, facilities for drinking
water, latrines and urinals etc. as a social
welfare measure in the interest of general
public. Likewise in respect of legislations
and notifications concerning the wages,
working conditions or the other amenities for
the working class, the Courts have adopted a
liberal attitude and the interest of the
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238
workers has been protected notwithstanding
the hardship that might be caused to the
employers."
We have earlier discussed most of these tests, and
the material on which the State has placed reliance
which are (i)The report of Chapekar, Prayas and
S.N.D.T. University (ii) International Convention
and Directive Principles; (iii) The Statement of
Objects and Reasons and the Preamble (iv) Complaints
made by members of the House in answer to the call
attention motion and the complaints received from the
general public and (v) Affidavit of Waghmare. We
have expressly dealt with each of the arguments
earlier. We also proceeded on the footing that there
is a presumption as to the constitutionality of the
Statute and that the Legislature best knows the
interest of the people. For that purpose the
Statement of Objects and Reasons are evidence of the
Legislative judgment. In the instant case it was the
unanimous view of the House which resulted in the
legislation.
88. Can it be said that the Legislation is in the
interest of the general public or is it excessive and
goes much beyond that? There is no general or fixed
test or exact definition and that has to be
considered on the facts of each case. The Court must
strike a just balance between the restrictions
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239
imposed and social control. The Court must also note
prevailing social values which are sought to be
protected or restricted. The Court must also bear in
mind that there must be a direct and proximate nexus
or a reasonable connection between the restriction
imposed and the object which is sought to be
achieved. If there be a nexus with the object then
in that event there will be a strong presumption in
favour of the constitutionality. The judicial
approach must be dynamic and elastic. The
restriction should not be arbitrary, and/or
excessive. As we have noted earlier the object of
the Legislation was prohibition of dances which were
obscene or vulgar which amounted to derogation of
women and also to prevent exploitation of women.
That being the object can the restriction be said to
be in the interest of hte general public? Women can
still dance in the exempted establishments, women can
still participate in Tamashas and Lavanis. Women can
still work as waiters or any other allied jobs in the
prohibited establishments. Owners of the
establishments are not prohibited from engaging women
other than for dancing. Women continue to be so
engaged. Those women come from the same strata of
society from which the dancers come. The only
distinguishing feature perhaps is their complexion
and dancing abilities. There is no other independent
material to show otherwise. The report of Chapekar,
S.N.D.T. and Prayas all deal with these women styled
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240
as bar dancers as a class. In other words there is
no nexus between the banning of dancing in the
prohibited establishments and the object of
prevention of exploitation as women, who continue to
be engaged in those establishments. To prevent
dances which are obscene or vulgar there are Rules in
force. The dances are within enclosed premises. The
general public have no access. The Home Minister
himself admitted that the Police force in Mumbai was
sufficient to control the dance bars. Eating houses,
beer bars or permit rooms are granted licenses only
after they satisfy the requirement of law, and in
permitted localities. Assuming that there may have
been bad practices in the dance bars, the State
itself had directed enacting of subordinate
legislation, to remove the bad practices. These
dances which are held to be a class by themselves and
could be prohibited, there is no reason as to why
similar dances which are permitted in the exempted
establishments can not be permitted, as hte
prohibited establishments are still entitled to
obtain a performance licence. The restriction
therefore, has no rational nexus with the object of
the Act. They cannot be said to be in public
interest.
89. For all the aforesaid reasons, we find that the
restriction imposed can not be said to be reasonable
or in the interest of the general public. Hence,
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241
Section 33A of the Bombay Police Act is violative of
Article 19(1)(g) of the Constitution of India and
consequently, we declare Section 33A as void.
90. Should the investigation be referred to the Should Should the investigation be referred to the the investigation be referred to the
Central Central Central Bureau Bureau Bureau of of of Investigation, Investigation, Investigation, as as as it it it involves involves involves the the the
Deputy Chief Minister and Home Minister of the State. Deputy Deputy Chief Minister and Home Minister of the State. Chief Minister and Home Minister of the State.
. The petitioners in Criminal Writ Petition
No.1971 of 2005 have added as Respondent Shri R.R.
Patil, Deputy Chief Minister and Home Minister of
Maharashtra as also, one Shri Vilas Satam, Vice
President of the Nationalist Congress Party, Kurla
Branch Mumbai and one Shri Paresh Patil. The reliefs
which the petitioners have sought, is to direct the
respondent No.8, the Commissioner of Police to hand
over the case papers of investigation to the Central
Bureau of Investigation, New Delhi which is the
respondent No.7 with a further direction to register
offence against Shri R.R.Patil, Shri Vilas Satam and
Shri Paresh Patil and to carry out further
investigation in regard to the demand of
gratification of Rs.12.00 crores and complete the
same within a specified time limit. In support of
the prayer clause, it is alleged that the Deputy
Chief Minister had made demand of illegal
gratification to the tune of Rs.12.00 crore through
his men in order not to ban dance bars. The
President of the Petitioner Association, had made a
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public accusation which was telecast on electronic
media. The petitioners were approached by Vilas
Satam along with Paresh Patil who had negotiated on
behalf of the Deputy Chief Minister. Vilas Satam had
met the President of the petitioner Association at
his dance bar-Karishma Dance Bar at Dadar some time
in December, 2004. Vilas Satam was accompanied by
Yeshwant Shetty, owner of Priya Dance Bar. Vilas
Satam had taken the petitioner to Paresh Patil who
had a separate cabin in the office of Nationalist
Congress Party at Nariman Point. Paresh Patil had
informed the President of the petitioner that he had
discussed the issue with the Deputy Chief Minister
who had agreed to extend the time to close dance bars
from 1.30 a.m. to 3.30 a.m. provided the
Association would pay Rs.12.00 crores to the Deputy
Chief Minister and Rs.1.00 crore for himself. After
the broadcast of his interview the Deputy
Commissioner of Police, Zone V, Worli, called the
petitioner in his office on 11th May, 2005. The
President of the Petitioner Association had appeared
before the Deputy Commissioner on 11th May, 2005 and
had given all details regarding the negotiations that
had taken place between himself and Shri Vilas Satam
and Paresh Patil. The statement of the President of
the petitioner was recorded. The Deputy Commissioner
of Police, Zone V, Worli, instead of registering
crime against Shri R.R.Patil, wanted to register a
case against Shri Vilas Satam and Paresh Patil who
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243
were acting as agents of Shri R.R.Patil. A breach of
privilege was tabled against the President of the
petitioners in the Maharashtra Assembly on 31st
March, 2005 and contempt proceedings were initiated.
The matter was referred to the Privilege Committee
along with the news item. An explanation was called
for. In the reply filed the contents of the news
item were denied. It is because of the disclosure by
the President, that the Deputy Chief Minister was
demanding Rs.12.00 crore as illegal gratification,
the Deputy Chief Minister took a vow to close down
the dance bars. Inspite of public outcry no case has
been registered. It is set out that as the case
involves Deputy Chief Minister and Home Minister of
the State, the Police Authorities are taking no steps
as the investigating agency is under the Home
Minister. The demand, it is set out, would
constitute an offence under the provisions of
Prevention of Corruption Act and in these
circumstances the case to be handed over to the
C.B.I. The specific charge which the President of
the Petitioner Association has made is that Shri
R.R.Patil, the Home Minister through Vilas Satam and
Shri Paresh Patil had demanded a sum of Rs.12.00
crores for extending the time of the dance bars from
2.30 a.m. to 3.30 a.m. As the charge is against the
Home Minister no Police Officer would dare to
register offence against the Home Minister and arrest
him.
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244
90. Shri R.R. Patil, the Deputy Chief Minister
has filed a reply, dealing specifically with the
allegations levelled by the President of the
petitioners Shri Manjeetsingh Sethi. It is set out
that the Court has no jurisdiction to order a C.B.I.
enquiry and assuming that there is power to order
such enquiry this is not a fit case in which C.B.I.
enquiry should be ordered. If the case of Shri Sethi
himself is considered it will be apparent that Shri
Sethi has admitted that the contesting respondent had
not met him, nor spoken to him on phone or otherwise
in connection with the allegations contained in the
petition. A close analysis of the various statements
made by Sethi would show that the story is
unbelievable and that the respondent No.4 is being
falsely implicated. It is specifically denied that
any gratification of Rs.12.00 crores or any other
amount was sought by the respondent No.4, through his
men as alleged or otherwise. The statement by Sethi
was made on 30th March, 2005 at about 13 hours.The
respondent No.4, it is set out, had announced the
intention to ban dance bars outside Mumbai on 15th
February, 2005 in Pune. The same was announced on
the Floor of the House on 30th March, 2005.
Regarding the allegation against Paresh Patil and
Vilas Satam, that the negotiations on behalf of the
Respondent has been specifically denied. It is also
specifically denied that either Vilas Satam or Paresh
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245
Patil were acting as his agents. The Respondent has
pleaded that he is not aware of the statement made by
Yeshwant Shetty and that the statement of Sethi or
Shetty discloses no ingredients of offence under any
provisions of the Prevention of Corruption Act, 1988.
There was a demand for banning the activity in Mumbai
by political parties, N.G.Os. as also citizens and
also Editorials in newspapers. It is also pointed
out that complaints had been received against Satam
by the respondent No.4 on 17th March, 2005. The
N.C.P. was asked to take action against Satam.
Thereafter Satam was expelled. Shri Satam, it was
pointed out, was arrested in respect of the complaint
received by the respondent No.4. It is denied that
no action has been taken. It is also denied that the
reason for amending the Bombay Police Act was on
account of the influence exerted by lobby of clubs or
gymkhanas, discotheques or pubs or hotels above three
stars. It is also set out that the respondent No.4
had not received any application dated 2nd February,
2000 or of any other date in his office based on the
incident nor is he aware of the application. Exhibit
"D" would indicate that the letter was delivered to
Shri Paresh Patil and not in the office of the
respondent No.4. Various other allegations have been
denied.
. Paresh Patil has also filed an affidavit
denying the allegations and has set out that he is
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not involved with the activities of the Nationalist
Congress Party or N.C.P. workers or that he was
acting as agent of Shri R.R.Patil. It is also denied
that he had a separate cabin in the office of the
Nationalist Congress Party at Nariman Point, Mumbai.
. The petitioners through their President has
filed rejoinder to the reply filed by respondent
NO.4. It is set out that considering the reply filed
by respondent No.4 an enquiry in respect of the
allegations made by him are pending with the 8th
Respondent. It is pointed out that no offence can be
enquired or investigated without a crime being
registered against a person.
91. Learned Counsel for the parties have advanced
various arguments and have relied upon various
authorities. At this stage it may not be necessary
for this Court to consider the arguments and or deal
with the authorities cited. On behalf of the
Commissioner of Police their learned Counsel has made
available to the Court the investigation papers and
has also submitted that investigation is on. In the
absence of a case being disclosed, it is pointed out
that no case can be registered. A notice was sent to
the Petitioner by the Deputy Commissioner of Police,
Zone V, Worli, Mumbai dated 10th February, 2005.
Sethi’s statement was recorded. Shri Sethi was shown
the daily Lokmat.Sethi’s statement as recorded is
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247
that the news item to the extent that it is reported,
that Shri Vilas Satam and Paresh Patil had demanded
Rs.12.00 crores from him for canceling the order
regarding closure of dance bars is false, but the
demand was made for extending timing of dance bars by
two hours. In December, 2004 Vilas Satam had come to
him at his bar and given his his visiting card. He
was accompanied by Shri Yeshwant Shetty, the owner of
Priya Bar at Byculla. Shri Satam put a proposal that
licence of all establishments within the limits of
Greater Bombay Municipal Corporation are going to be
cancelled under the orders of the Government. As
such dance bars which are presently required to be
closed at 1.30 hours can be run upto 3.30 hours. If
the Association was interested in getting the work
done he knew some persons close to Home Minister Shri
R.R.Patil and could get the work done through them.
Eight days thereafter Shri Satam came to meet him at
Karishma Bar and then took him to the office of the
Nationalist Congress Party where he was introduced to
Shri Paresh Patil, who had a separate cabin there.
He was informed by Shri Patil that he was doing the
work of interior designing of the office of the
Nationalist Congress Party. Shri Satam put a
proposal for extending time of running of dance bars
by two hours and Shri Paresh Patil showed his
willingness to get the work done and stated that he
would arrange a meeting with the Home Minister.
Satam thereafter on 15th January, 2005 called him on
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248
his mobile and set out that Paresh Patil had spoken
to Respondent No.4 stating that the work had been
done and gave the phone to Paresh Patil. Shri Paresh
Patil told him that the work could certainly be done
and that the subject matter of money could not be
discussed on phone and told him to meet him
personally in the office. On the next date at 9.00
hours he met Paresh Patil when he was told that he
would have to pay Rs.12.00 crores to the Home
Minister Shri R.R.Patil and Rs.1.00 crore for
himself. Shri Sethi informed Paresh Patil that he
would hand over the amount of Rs.12.00 crores
personally to Shri R.R.Patil, Shri Paresh Patil gave
him two mobile numbers. Shri Satam again met him
after three days and asked for a proposal on the
letter head of the Association. As it was late he
had handed over 8-10 letterheads and asked to type
appropriate proposal and he would sign it. Shri
Satam came on the next day with the proposal typed in
Marathi on the letter heads which were addressed to
Respondent No.4-Shri R.R.Patil and Shri Jayant Patil,
Revenue Minister. He signed the same and returned
them to Vilas Satam. He was in contact with Paresh
Patil, who assured him that the work is being done.
On 2nd February, 2005 they decided to meet at Regency
Hotel at 9.30 p.m. They met outside the hotel when
Satam informed him that the proposal which was
submitted was faulty and to submit the proposal in
English on the same day incorporating therein the
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249
actual number of dance bars with the number of
persons who would get employment by reason of the
proposal and the proposal in English was prepared and
sent through his driver to Paresh Patil at 11.30 p.m.
outside Regency Hotel. The various discussions
thereafter have been set out and then he was informed
by Paresh Patil on 31st March, 2003 that the meeting
could be possible with Shri R.R.Patil after Assembly
Session. In the meantime Shri Patil declared in the
Assembly that the dance bars outside Mumbai would be
closed. At that time they did not speak to the
Press, but gave the information thereafter. He has
also stated that he has not met the Home Minister
till date and that Shri R.R.Patil has not demanded
Rs.12.00 crores for the proposal. However, Shri
Paresh Patil had demanded Rs.1.00 crore for himself
and Rs.12.00 crore in the name of Shri R.R.Patil.
92. It is not for this Court at this stage to go
into the veracity of the complaint and/or its
genuiness considering that the matter is still under
investigation. The allegation, if true, reflects a
sorry state of perversion of constitutional
principles and philosophy. It demonstrates that
businessmen have no hesitation in giving bribes for
obtaining their objective and those entrusted with
the law making authority using it to make money for
themselves. In the instant case the President of the
Petitioner Association was willing on behalf of the
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Association to pay a large amount unlawfully to
interfere in the exercise of a subordinate
legislative action, at the instance of those who
claim were close to Respondent No.4 for changing the
timings of the dance bars upto 3.30 a.m. If true, it
indeed would be a sad day for this Republic and the
faith that millions have in the Constitution and the
law. That the law can be amended, bent or altered
for a consideration is a crime that no civilised
society can accept. Our observation, however, does
not in any way reflect on the facts of the present
case. If the statement of Sethi is considered it is
his own case that the respondent No.4 R.R. Patil,the
Home Minister has never demanded any amount from him
nor has he met him. The entire exercise had been at
the highest done by Shri Satam and Shri Paresh Patil.
There is prima facie material to indicate on the
record as it stands, that Shri Satam and Shri Paresh
Patil were involved in contacting the President of
the Association to pay a large sum to change the
timings of the dance bars. The letter addressed by
the petitioner was not only to respondent No.4, the
Home Minister but also to Shri Jayant Patil, the
Revenue Minister. In our opinion on these facts it
is not necessary for us to go into the various
arguments advanced, as to what amounts to an
investigation and when can it be said that the
investigation is in progress. We are of the opinion
that the petitioners have failed to make out any
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prima facie case for referring the matter to the
C.B.I. We, however, direct the Respondent No.8 to
take further steps to investigate and record any
further statements, if not recorded, and thereafter
to proceed according to law at the earliest. A
report be filed before the Court within three months
from today as to whether ingredients, of any offence
have been made out and if so steps that they have
taken in the matter. We may at this stage record the
submission made on behalf of the Police Commissioner
that the investigation atleast when the matter was
argued before this Court did not disclose any
criminal offence against Respondent No.4. The
prayer, therefore, as sought for by the petitioner in
Criminal Writ Petition No.1971 of 2005 cannot be
granted.
93. CONCLUSIONS : I therefore, hold :
(1) Maharashtra Act No. 35 of 2005 is within the
competence of the State Legislature. The Amending
Act is also not repugnant to the Law made by
Parliament.
(2) The Proviso to Section 33A(2) does not interfere
with the independence of the judiciary.
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(3) The Amending Act applies to those establishments
having a licence for a eating house permit room or
beer bar. As the Eating Houses is included within
the definition "Place of public entertainment", the
Act covers, establishments which are the subject
matter of the present Petition.
(4) Section 33A, is not violative of Article 15 of
the Constitution of India in as much as it does not
discriminate against women.
(5) The Amending Act does not amount to an
unreasonable restriction on the freedom of speech and
expression. The predominant activity carried out in
the place of public entertainment, is of carrying on
trade or business, occupation or profession.
Applying the doctrine of pith and substance and on
the facts of the case there is no violation of the
freedom of speech and expression.
(6) The Amending Act also does not violate the
dancer’s or bar owner’s right to life under Article
21, as the bar owner continues to carry on business
except dancing in the licenced premises and the
dancer is only restricted from carrying on dancing in
the prohibited establishment. They can however,
dance elsewhere.
(7) The prohibited establishments and the exempted
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establishments, though both have licences, for a
place of public entertainment and performance
licences, constitute two distinct classes, as the
dances which are restricted in the prohibited
establishments, have distinct traits and
characteristics of their own.
. However, considering that the object of the
Legislation is to prevent dances which are obscene,
vulgar or immoral and hence derogatory to the dignity
of women and to prevent exploitation of women, we
find that there is no nexus between the
classification and the object of the Act. The Act
bans all dancing including the dances which are
permitted in the exempted establishments and which
are governed by the same rules and conditions of
licence. If women other than as dancers can work in
the prohibited establishments and that does not
amount to exploitation, we do not see as to why when
women dance to earn their livelihood, it becomes
exploitation. Section 33A and consequently Section
33B are void.
(8) The Amending Act does not amount to prohibition
but is a restriction within the meaning of Article
19(6) of the Constitution of India. The restriction
in so far as it prevents the bar owners from having
the same or similar dances as in the exempted
establishments and the bar dancers from performing
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dances other than those which can be restricted, is
unreasonable and not in public interest and
consequently void.
(9) In the matter of the relief sought for referring
the matter for investigation to C.B.I. we find that
no prima facie case is presently disclosed against
the Dy. Chief Minister and Home Minister, Respondent
No. 4. We however, prima facie find that Shri.
Vilas Satam and Paresh Patil were dealing with Shri.
Manjit Singh to get the Law amended for change of
timings of dance bars for a huge consideration. We
therefore, direct Respondent No. 8, the Commissioner
of Police, Mumbai to continue with the ongoing
investigation and file a report with this Court
within the period of three months from today on the
outcome of the investigation.
94. Rule therefore, made absolute in terms of
Conclusions 7, 8 and 9. In the circumstances of the
case, there shall be no order as to costs.
(F.I. REBELLO,J.) (F.I. (F.I. REBELLO,J.) REBELLO,J.)
Per Mrs. Roshan Dalvi, J Per Per Mrs. Roshan Dalvi, J. : Mrs. Roshan Dalvi, J
95. I concur.
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. The fundamental rights of citizens are paramount.
Though, therefore, the bar dancers as well as the bar
owners are entitled to carry on their trade and
profession, it can only be subject to their
contracting within the parameters of law.
. The two reports of the two reputed NGOs - PRAYAS,
Dept. of Criminology and Correctional Administration
of the Tata Institute of Social Sciences and the
Research Centre for Women’s studies of the SNDT
University show that some bar dancers are minors,
albeit a small percentage, hailing from different
States.
. Though the State has not shown actual trafficking
of these children, if any children are indeed found
serving in any dance bars, it would be in a place
undesirable and unsuitable to their age.
. None other than Mahatma Gandhi had said :
"I hold that the more helpless a creature,
the more entitled it is to protection of men
from the cruelty of men."
. Though the mere entry of a small percentage of
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such children in the vocation unsuitable to their age
and aptitude cannot justify upholding of the impugned
legislation, I would consider myself failing in my
duty if I let the fact pass undirected.
. The State has filed an affidavit showing its
desire to rehabilitate the dancers if they lose their
present contract/employment in the bars. The NGOs
have interviewed the dancers. The report relied upon
by the State shows the constraint of some to the
dancers to enter the profession only on account of
economic need. The bar owners have denied the fact
of any minor being brought into any bars as
dancers.They have, through their counsel Ms. Veena
Thadani, made an oral statement to Court that they
would never permit a single child to be abused in
their premises. The said statement is accepted.
. Extensive directions are given by the Apex Court
in the best interest of children of fallen women in
Gaurav Jain v. Union of India, 1997 (8) SCC 114
considering various fundamental rights as well as
directive principles of state policy in the
Constitution of India as well as various
International Covenants ratified by India.
. In view of the above, and by way of abundant
caution, a modicum of supervision and inquiry would
be required to be made at certain intervals of time.
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This can best be made by either of the NGOs who have
filed their report, both of whom are reputed NGOs
beyond reproach.
. PRAYAS of TISS and SNDT University are accordingly
directed to undertake, inquire and make Environmental
Study Report of any dance bar at any time on the
request of the State or any party or of their own
motion by interviewing any dancers, including any
child employed or otherwise serving in any of the
dance bars in the State of Maharashtra. If their
inquiry shows any illegal employment of, or contract
with, any minor they shall report the fact to the
relevant police station for action against the bar
owner and take whatever steps that are necessary for
the rescue and rehabilitation or repatriation of
those children.
. The parties shall provide a copy of this judgment
to the respective NGOs whose report is relied upon by
them.
(MRS.ROSHAN DALVI,J.) (MRS.ROSHAN (MRS.ROSHAN DALVI,J.) DALVI,J.)
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