2013 (7) TMI 1018 - SC - Indian Laws

Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas & Tamashas - dance bars - High Court declared that Sections 33A and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14 and 19(1)(g) of the Constitution of India - held by the High Court that dance performed by the bar dancers can not fall within the term freedom of speech and expression as the activities of the dancers are mainly to earn their livelihood by engaging in a trade or occupation - Held that - We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation. 120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g). We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (2008 (2) TMI 850 - SUPREME COURT) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression any kind or type of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability. Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A. In the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. Keeping in view the aforesaid circumstances, we are not inclined to interfere with the conclusions reached by the High Court.

Summary

Issues Involved:
1. Constitutionality of Sections 33A and 33B of the Bombay Police Act, 1951.
2. Violation of Articles 14, 15, 19(1)(a), 19(1)(g), and 21 of the Constitution of India.
3. Legislative competence of the State of Maharashtra.
4. Reasonableness of restrictions imposed by the impugned legislation.
5. Classification of establishments under Sections 33A and 33B.
6. Impact on the livelihood of bar dancers.
7. Presumption of constitutionality and burden of proof.

Detailed Analysis:

Constitutionality of Sections 33A and 33B of the Bombay Police Act, 1951:
The impugned Sections 33A and 33B were challenged as being ultra vires Articles 14 and 19(1)(g) of the Constitution. Section 33A imposed a complete prohibition on dance performances in eating houses, permit rooms, and beer bars, while Section 33B exempted certain establishments like three-star hotels and gymkhanas. The High Court declared these sections ultra vires, holding that the classification lacked a rational nexus with the object sought to be achieved, which was the prevention of exploitation of women and maintenance of public morality.

Violation of Articles 14, 15, 19(1)(a), 19(1)(g), and 21 of the Constitution of India:
The High Court rejected the challenge under Articles 15(1), 19(1)(a), and 21 but accepted the challenge under Articles 14 and 19(1)(g). The Court found that the classification under Sections 33A and 33B was not based on intelligible differentia and had no rational nexus to the object sought to be achieved. The Court observed that the same type of dance could not be considered immoral in one establishment and moral in another based on the class of the establishment.

Legislative Competence of the State of Maharashtra:
The High Court upheld the legislative competence of the State of Maharashtra to enact the impugned law, stating that it fell within the ambit of Entries 1, 2, 6, 8, 33, and 64 of List II of Schedule 7 of the Constitution.

Reasonableness of Restrictions Imposed by the Impugned Legislation:
The High Court scrutinized the reasonableness of the restrictions under Article 19(1)(g) and found them to be unreasonable. The Court noted that the restrictions amounted to a complete prohibition, which was not justified by any empirical data or substantial evidence. The Court emphasized that existing regulations were sufficient to address the issues of public morality and exploitation of women.

Classification of Establishments Under Sections 33A and 33B:
The classification was found to be arbitrary and discriminatory. The Court held that the distinction based on the class of the establishment and the presumed behavior of the audience was elitist and not supported by any rational criteria. The Court observed that morality and decency could not be pigeon-holed based on the economic status of the audience.

Impact on the Livelihood of Bar Dancers:
The Court noted that the prohibition had led to the closure of many establishments, resulting in the loss of livelihood for about 75,000 women. The Court observed that many of these women were forced into prostitution due to the lack of alternative employment opportunities. The Court emphasized the need for the State to provide alternative means of support and rehabilitation for these women.

Presumption of Constitutionality and Burden of Proof:
The Court reiterated the principle that there is a presumption in favor of the constitutionality of an enactment, and the burden is on the challenger to show a clear transgression of constitutional principles. However, the Court found that the State had failed to justify the classification and the reasonableness of the restrictions imposed by the impugned legislation.

Conclusion:
The Supreme Court upheld the High Court's decision declaring Sections 33A and 33B of the Bombay Police Act, 1951, as ultra vires Articles 14 and 19(1)(g) of the Constitution. The Court emphasized the need for the State to re-examine the recommendations made by the Committee and to consider alternative measures that ensure the safety and dignity of women without imposing a complete prohibition on dance performances. The Court dismissed the appeals and vacated all interim orders.