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TMI Blog2013 (7) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... perate 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be ultra vires Articles 14 and 19(1)(g) of the Constitution of India. Summary of Facts 3. Brief facts leading to the filing of the aforesaid writ petitions are The Bombay Police Act, 1951 (hereinafter the Act ) was enacted in the year 1951 with the object of consolidating and amending the law relating to the regulation of the exercise of powers and performance of the functions by the State Government for maintenance of public order. Section 33 of the Act authorises the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas Tamashas, 1960 (hereinafter the Rules ) were enacted to regulate and maintain discipline in places of public amusement, melas etc. 4. In 1986, orchestra and dance in hotels was permitted to be performed pursuant to the Rules and such institutions functioned under terms and conditions laid down therein. However, several cases relating to violation of the terms and conditions of performance licences came to be registered. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the establishment and customers are banned from going near the dancers or showering money . e. Names of dancers are to be registered with the establishment, a record kept of their employment, including details of identity/citizenship and place of residence. 6. This letter instructed all Judicial Magistrates and Police Commissioners to implement these recommendations with immediate effect. 7. On 6th August, 2004 the Chairperson of the Maharashtra State Commission for Women wrote to the State Government about the ongoing racketeering to lure girls to work in dance bars and their consequent acts of prostitution and immoral trafficking stating: Number of rackets indulging into physical and financial exploitation of girls working in dance bars by forcibly bringing them into this profession are found to be increasing alarmingly. In the metropolis of Mumbai, the problems of the bar girls have acquired grave dimensions and have resulted even into death of many bar girls. These women are forcibly induced into prostitution leading to total destruction of their life. . Further Most of the girls working in Dance Bars of Maharashtra State do not hail from State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial, the members of the Maharashtra Legislative Assembly expressed deep concern over the ill effects of dance bars on youth and dignity of women. The Assembly further felt that the existing measures were insufficient to tackle the subject. Just at that time, a Call Attention Motion was tabled by Shri Vivek Patil in the State Legislative Assembly on 30th March, 2005. A detailed reply was given by Shri R.R. Patil, Hon ble Dy. Chief Minster to the same, on 21st July, 2005. Taking stock of the entire situation, the State Government came to a tentative opinion that performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt and/or injure public morality. It was evident on the basis of the material available to the Government that permit rooms or beer bars licensed under the relevant rules, were indulging in exploitation of women by permitting the performance of dances in an indecent obscene or vulgar manner. The Government, therefore, considered it expedient to prohibit such dance performances in eating houses or permit rooms or beer bars. 12. It was emphasised that even prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 2nd petitioner is the Ekta Self Group which consists of 10 bar dancers. WP 1971/2005 Criminal WP The petitioner is the Association of Dance Bar owners duly registered under the Trade Unions Act, and have as their members 344 dance bars. WP 6930-6931/2005 Proprietors of two establishments who are affected by the amendments to the Police Act. WP 5503-5504/2005 Proprietors of two establishments who Are affected by the amendments to the Police Act. It was contended: That the State of Maharashtra does not have the legislative competence to enact the impugned law as 'morality' does not fall within the ambit of List II of Schedule 7 and that the impugned enactment falls in the concurrent list. That the impugned amendment was not reserved for the assent of the President and therefore is unconstitutional under Article 254 of the Constitution and also that the State does not have the power to implement international conventions and hence this enactment amounts to fraud on the Constitution. That the enactment results in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the ban on obscene dance applies to men and women. That the several minor girls danced to get rewarded with cash by enticing customers, that led to a competition between performers leading to greatest rewards reserved for the greatest indignities which escalated prostitution which lead to registration of several cases under Prevention of Immoral Trafficking Act and under Bombay Police Act. That this led the legislatures to make an independent classification of these establishments to safeguard the dignity of women, and public morality. That there are only six exempted establishments and that obscene performances are not permitted in such exempted establishments. Hence there is no violation of Article 14. That with regard to Article 19(I) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified. That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the bar girls in availing benefits of the various Government Schemes for employment and providing altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand. (3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under Sub- section (1), holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence. (4) (5) .. (6) The offence punishable under this section shall be cognizable and non-bailable. 33B. Subject to the other provisions of this Act, or any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Legislature, by way of a Calling Attention Motion, the attention of the Government was invited to mushroom growth of illegal dance bars and their ill-effects on the society in general including ruining of families. The members of the State Legislature, from ruling and opposition sides, pointed out that such dance bars are used as meeting points by criminals and pick-up joints of girls Page 1267 for indulging in immoral activities and demanded that such dance bars should, therefore, be closed down. These dance bars are attracting young girls desirous of earning easy money and thereby such girls are involved in immoral activities. Having considered the complaints received from general public including the peoples' representatives, the Government considers it expedient to prohibit the performance of dance, of any kind or type, in an eating house or permit room or beer bar, throughout the State by suitably amending the Bombay Police Act, 1951. However, a provision is also made to the effect that holding of a dance performance in a drama theatre or cinema theatre or auditorium; registered sports club or gymkhana; or three starred or above hotel; or in any other establishment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the vires of the provisions under Article 15(1), 19(1)(a) and Article 21. 23. Learned counsel for the appellants submitted that the classification made by the impugned enactment is based on intelligible differentia, having a nexus with the object sought to be achieved. It is submitted that the impugned order suffers from flawed reasoning. The classification made between establishments under Sections 33A and 33B is not solely on the basis of the different kinds of dance performances but also on differing social impact such establishments have, by virtue of having differing dance performances and surrounding circumstances including the customers. Therefore according to Mr. Gopal Subramanium, the establishments must be understood in broader terms than is understood by the High Court. According to Mr. Harish Salve and Mr. Gopal Subramanium, the judgment of the High Court is too restrictive. 24. It was emphasised by the learned senior counsel that the High Court has failed to understand the distinction between the two provisions and the object sought to be achieved. Mr. Gopal Subramanium has listed the differences factored into the classification made by the impugned enactment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14. 27. With regard to the form of remuneration, learned senior counsel submitted that remuneration to dancers in banned establishments is generally made out of the money which is showered on them. This creates an unhealthy competition between the dancers to attract the attention of the customers. Therefore, each dancer tries to outdo her competitors in terms of sexual suggestion through dance. This, in turn, creates an unsafe atmosphere not just for the dancers, but also for the other female employees of such establishments. 28. Relying on the report by Shubhada Chaukhar, learned senior counsel submitted that 84% of the bar dancers are from outside the State of Maharashtra. These girls are lured into bar dancing on false pretext. Supporting this submission, the following observations are pointed out in the same report: Some unmarried girls have entered the world of bars just because of its glamour. Not a few have come of their own free will. Many less educated girls are attracted to a livelihood that makes them quick money . 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes most often found doing it?... The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape. 32. Taking cue from the aforesaid comments, learned senior counsel submitted that the dancing that takes place in the banned establishments has a similar effect on the psyche of the woman involved, and functions within the same parameters of the understanding of consent. It was emphasised that as a general rule, dancing in a dance bar is not a profession of choice, but of necessity, and consequently, there is a demand not for women of means and options, but vulnerable women, who may not have families and communities to turn to and are completely dependent on their employers. In support of the aforesaid submissions, reliance was placed upon Prayas and Shubhada Chaukar Reports. 33. It was submitted that the High Court erroneously ignored the contents of the reports extracted above. 34. Now coming to the next head: Justifying the classification on the criterion of Degree of Harm. The appellants emphasised that the characteristics of the dancing that is sought to be prohibited have, to a greater degree than the activities tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naturalised aliens were the peculiar source of the evil that it desired to prevent. Barrett v Indiana, 229 U.S. 26, 29. Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the stale legislature was wrong in its facts. Adams v Milwaukee, 228 US. 572, 583. If we might trust popular speech in some states it was right - but it is enough that this Court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. 36. Reliance was also placed on the observations made in Keokee Consolidated Coke Co. Vs. Taylor[234 U.S.224 (1913)], which are as follows: It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by relying upon the case of Mohd. Hanif Quareshi Vs. State of Bihar[AIR 1958 SC 731], wherein the court held as under: The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of Constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. 39. On the basis of the aforesaid extracts, learned counsel submitted that the classification between the exempted establishments and prohibited establishment is also based on Degree of Harm . The legislature is the best judge to measure the degree of harm and make reasonable classification. 40. Coming to the next factor Regulatory Feasibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing. Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state legislature here determined that the night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination . 41. Relying on the aforesaid, it is submitted that exempted establishments as understood by Section 33B are gymkhanas, three starred or above hotels. In order to be considered thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification . 43. It was reiterated that the High Court has given a very restrictive interpretation to the phrase exploitation of women . The expression would include not only the women who dance in the prohibited establishments but also the waitresses who work in the same establishments. It would also include the effect of the dance bar on gender relations of not just the bar dancer, but for the women around the area. The High Court, according to the appellants, failed to take into account the object that the statutory provisions are in respect of an activity of exploitation of women conducted for financial gain by bar owners and their intermediaries. It is emphasised that the issue involved in this matter is not merely about dancing in the bars, but involves larger issues of dignity of women, the destruct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a state from reaching such a conclusion and action on it legislatively simply because there is no conclusive evidence or empirical data. The states have the power to make a morally neutral judgment that public exhibition of obscene material or commerce in such material has a tendency to injure community as a whole, to endanger the public safety or to jeopardise in Mr. Chief Justice Warren's words, the States' right ... to maintain a decent society . Jacobellis v Ohio 378 US at 199 (dissenting opinion) 45. It is further pointed out that the decision to ban obscene dancing is also in consonance with Convention on the Elimination of All Forms of Discrimination Against Women (CEADAW). Learned senior counsel further submitted that establishments covered by Section 33A have a greater direct and indirect effect on the exploitation of women, and the resultant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid material, it is submitted that the Government of Maharashtra enacted the amendment in good faith and knowledge of existing conditions after recognizing harm, confined the restrictions to cases where harm to women, public morality etc. was the highest. The High Court has failed to appreciate all the documentary evidence placed and gave a narrow meaning to the object of the Act which is in the larger interest of the women and society. Article 19(1)(g) - 49. With regard to whether there is any infringement of rights under Article 19(1)(g), it is submitted by the learned senior counsel that the fundamental right under Article 19(1)(g) to practice any profession, trade or occupation is subject to restrictions in Article 19(6). Therefore, by prohibiting dancing under Section 33A, no right of the bar owners are being infringed. The curbs imposed by Sections 33A and 33B only restrict the owners of the prohibited establishments from permitting dances to be conducted in the interest of general public. The term interest of general public is a wide concept and embraces public order and public morality. The reliance in support of this proposition was placed on State of Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ips given by customers in the bar, which varies from day-to-day and from women to another. This money is often shared with the bar owner as per a fixed ratio ranging from 30 to 60 percent. 52. The same conclusion is also found in Shubadha Chaukar Report where it is stated that : Tips given by enamoured customers are the main income of girls working in the bars. Normally dancers do not get a salary as such. The bar owner makes it look like he is doing a favour by allowing them to make money by dancing. So he does not give them a salary. On the contrary a dancer has to hand over to the owner 30 to 40 per cent of what she earns. This varies from bar to bar. 53. On the basis of the above, it was submitted that the bar owners with a view to attract customers introduced dance shows where extremely young girls dance in an indecent, obscene and vulgar manner which is detrimental to the dignity of women and depraves and corrupt the morality. 54. The second limb of the submission is that the prohibition does not bar the restaurant owners or the beer parlour owners from running their respective establishments i.e. restaurant business, beer parlours etc. What is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case the dance bars having negative impact on family, women, youth and has been augmenting the crime rate as well as trafficking and exploitation of women. Reference was again made to the various reports and studies to show the disruptive opinion of the dance bars in the families of the persons employed in such dance bars. Reliance was placed on the judgment of this Court in Khoday Distilleries Ltd. Ors. Vs. State of Karnataka Ors.[ (1995) 1 SCC 574], in support of the submission that the trading in liquor is not a fundamental right. This Court further observed that trafficking in women or in slaves or in counterfeit coins or to carry on business of exhibiting or publishing pornographic or obscene films and literature is not a fundamental right as such activities are vicious and pernicious. Reliance was placed on the following observations: The correct interpretation to be placed on the expression the right to practice any profession, or to carry on any occupation, trade or business is to interpret it to mean the right to practice any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that statute violates United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty first Amendment makes that a policy judgment fin- the state legislature, not the courts. 57. It was also submitted that in the present case the dance is conducted in an obscene manner and further the dance bars eventually happen to be pick up locations that also propagate prostitution in the area, which is sought to be prevented by the legislation. The appellants also relied on the judgment in Regina Vs. Bloom[1961 3 W.L.R. 611]. In this case, the appellants were proprietors of the clubs who were charged with keeping a disorderly house, which arose out of matters that occurred in course of strip tease performances. The Court of Criminal Appeal (England) held that as regards the cases in which indecent performances or exhibition are alleged, a disorderly house is a house conducted contrary to law and good order in that matters performed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the bar girls to be employed in the dance bars and that the right to work would be subject to the continuation of the establishment. Hence, it is a derivative right emanating from the right of the dance bar owners to run the establishments subject to restrictions imposed. 60. It is next submitted that the right to trade and profession is subject to reasonable restriction under Article 19(6) of the Constitution. The decision to impose the ban was to defend the weaker sections from social injustice and all forms of exploitation. In the instant case, the moral justification is accompanied with additional legitimate state interest in matters like safety, public health, crimes traceable to evils, material welfare, disruption of cultural pattern, fostering of prostitution, problems of daily life and multiplicity of crimes. Learned senior counsel for the appellants strongly relied upon the Statement of Objects and Reasons and the Preamble of the amending Act to reiterate that the State is enjoined with the duty to protect larger interest of the society when weaker sections are being exploited as objects of commerce and when there is issue of public order and morality involved. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to the changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of article 19. (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (see State of U.P. v Kaushailiya) (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of constitutionality of the Act will naturally arise. 62. Thereafter, Mr. Subramanium has cited State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra) in support of the submission that Statement of Objects and Reasons would be relevant for considering as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iastic customers and are aware of their vulnerability to get exploited . The appellants also relied on a number of complaints and the various cases of minor girls being rescued from dance bars during the period 2002-05 to buttress their submission that the young girls were subjected to human trafficking. Learned senior counsel also submitted that the High Court has erroneously concluded that if the women can safely work as waitress in the Restaurants why can they not work as dancers. The learned senior counsel also submitted that the High Court wrongly proceeded on the basis that there was no evidence before the State or the Court in support of the legislation. On the basis of the above, it is submitted that the restrictions imposed are reasonable and the legislation deserves to be declared intra vires the constitutional provisions. 65. Further, it was submitted that the legislative wisdom cannot be gone into by the court. The Court can only invalidate the enactment if it transgresses the constitutional mandate. It is submitted that invalidation of a statute is a grave step and that the legislature is the best judge of what is good for the community. The legislation can only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the event this Court is not inclined to uphold the constitutionality of the impugned provisions, it ought to make every effort to give the provision a strained meaning than what appears to be on the face of it. This is based on the principle that it is only when all efforts to do so fail, the court ought to declare a statute to be unconstitutional. The principle has been noticed by this Court in Government of Andhra Pradesh Ors. Vs. P. Laxmi Devi (Smt.)[ (2008) 4 SCC 720] wherein it is observed as follows : 46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no two views that are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rohatgi submitted that, at the heart of the present case, the controversy revolved around the right to earn a livelihood more so than the right of a person to choose the vocation of their calling. It was submitted that apart from the reasoning given in the judgment of the High Court, the challenge to the impugned legislation can be sustained on other grounds also. He submits that a classification of the establishments into three stars and above, and below is not based on any intelligible differentia and is per se discriminatory and arbitrary. Bar dancers have a right to livelihood under Article 21 and the ban practically takes away their right to livelihood. He therefore, submits that the ban is violative of Articles 14, 19(1)(a) and 19(1)(g) and 21 of the Constitution. Relying on the observations made by this Court in the case of I.R. Coelho (Dead) by LRs. Vs. State of T.N.[ (2007) 2 SCC 1], he submits that these articles are the very heart and soul of the Constitution and are entitled to greater protection by the Court than any other right. Mr. Rohatgi submits that the submissions made by the appellants with regard to the protecting the dignity of women and preventing traffick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages given to the respondents by the appellants does not contain a single complaint about trafficking. All allegations relating to trafficking have been introduced only to justify the ban on dancing. He, therefore, submits that the total ban imposed on dancing violates the fundamental right guaranteed under Article 19(1)(g). Learned senior counsel further submitted that dancing is not res extra commercium. He emphasised that if the dancing of similar nature in establishments, mentioned in Section 33B is permissible, the prohibition of similar dance performance in establishments covered under Section 33 cannot be termed as reasonable and or in the interest of general public . Therefore, according to Mr. Rohatgi, the restrictions do not fall within the scope of Article 19(6). He relied on the judgment of this Court in Anuj Garg Ors. Vs. Hotel Association of India Ors.[ (2008) 3 SCC 1], wherein a ban on employment of women in establishment where liquor was served, was declared discriminatory and violative of Articles 14, 15, 19 and 21. In this case, it was held as under : .Women would be as vulnerable without State protection as by the loss of freedom because of the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the provision contained in Section 33A is based on the presumption of the State Government that the performance of dance in prohibited establishments having lesser facilities than three star establishments would be derogatory to the dignity of women. The State also presumed that dancing in such establishments is likely to deprave, corrupt or injure public morality. The presumption is without any factual basis. The entry of women in such establishments is not banned. There is also no prohibition for women to take up alternative jobs within such establishments. They can serve liquor and beer to persons but this does not lead to the presumption that it would arouse lust in the male customers. On the other hand, when women start dancing it is presumed that it would arouse lust in the male customers. He emphasised the categorization of establishments under Sections 33A and 33B does not specify the twin criteria: (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the dancers merely imitate the dance steps and movements of Hindi movie actresses. They wear traditional clothes such as ghagra cholis, sarees and salwar kameez. On the other hand, the actresses in movies wear revealing clothes: shorts, swimming costumes and revealing dresses. Reverting to the reliance placed by the appellants on the Prayas Report and Shubhada Chaukar Report, Mr. Rohatgi submitted that both the reports are of no value, especially in the case of Prayas Report which is based on interviews conducted with only few girls. The SNDT Report actually indicates that there is no organized racket that brings women to the dance bars. The girls interview, in fact, indicated that they came to the dance bars through family, community, neighbors and street knowledge. Therefore, according to the Mr. Rohatgi, the allegations with regard to trafficking to the dance bars by middlemen are without any basis. Most of the girls who performed dance are generally illiterate and do not have any formal education. They also do not have any training or skills in dancing. This clearly rendered them virtually unemployable in any other job. He, therefore, submits that the SNDT Report i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Under Section 33A(1), there is an absolute provision which is totally prohibiting dance in eating houses, permit rooms or beer bars. On the other hand, Section 33B introduced the discriminatory provision which allows such an activity in establishments where entry is restricted to members only and three starred or above hotels. He also emphasised that the consequence of violation of Section 33A is punishment up to 3 years imprisonment or ₹ 2 lakhs fine or both and with a minimum 3 months and ₹ 50,000/- fine unless reasons are recorded. The Section further contemplates that the licence shall stand cancelled. Section 33A(6) makes the offence cognizable and non- bailable. According to Dr. Rajeev Dhawan, the provision is absolute and arbitrary. He reiterates that the non obstante clause virtually makes Section 33A stand alone. Further Section 33A(1) is discretion less. It applied to all the establishments and covers all the activities, including holding of performance of dance of any kind or type in any eating house, permit room or beer bar. There is total prohibition in the aforesaid establishments. The breach of any condition would entail cancellation of licence. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggests a framework which regulates the functioning of bars, performances by singers, dancers etc. Similarly, the Prayas Report cannot be relied upon. The study was, in fact, done after the ban was imposed by the State Government. Even this report indicates that after the ban there was urgent need to find alternate source of livelihood for these girls. There was no facility of education for the children. Even this report finds that the families from which these girls come are economically weak. Six percent of minor children comprise the dancing population. They are not provided any specialized training to be bar dancers. They do not live in self owned houses. The SNDT Report clearly states that the study is based on interaction with 500 girls from 50 bars. The report indicates that there are a number of prevalent myths which are without any basis. It is pointed out that, according to the report, the following are the myths :- 1. It is an issue of trafficking from other States and countries. 2. 75% dancers are from Bangladesh. 3. Only 3% are dancers from Maharashtra. 4. Bar culture is against the tradition of Maharashtra. 5. Girls who dance are minors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks support for the submission, by making a reference to the observations made by this Court in Rustom Cavasjee Cooper Vs. Union of India[(1970) 1 SCC 248] and Maneka Gandhi Vs. Union of India Anr.[ (1978) 1 SCC 248], he emphasised that the direct operation of the Act upon the rights forms the real test. The principle has been described as the doctrine of intended and real effect or the direct and inevitable effect, in the case of Maneka Gandhi (supra). Dr. Dhawan also emphasised that dancing is covered by Article 19(1)(a) even though it has been held by the High Court that it is not an expression of dancers but their profession. He relied on the observations of this Court in Bharat Bhawan Trust Vs. Bharat Bhawan Artists Association Anr.[ (2001) 7 SCC 630] wherein it is held that the acting done by an artist is not done for the business. It is an expression of creative talent, which is a part of expression. 80. Illustrations submitted by Dr. Dhawan are that the legislation cannot be saved even by adopting the doctrine of proportionality which requires adoption of the least invasive approach. Dr. Dhawan has reiterated that the suggestions made by the Committee pursuant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the learned senior counsel, has wrongly accepted the explanation given by the appellants in their affidavits that the classification is based on the type of dance performed in the establishments. This, according to learned senior counsel, is contrary to the provisions contained in the aforesaid sections. He reiterated the submissions that the distinction between the establishments is based not on the type of dance performance but on the basis of class of such establishments. He makes a reference to the affidavit in reply filed in Writ Petition No.2450 of 2005 at paragraph 33 inter alia stated as follows :- Even otherwise five star hotels are class themselves and can t be compared with popularly known dance bars .the persons visiting these hotels or establishments referred therein above stand on different footing and can t be compared with the people who attend the establishments which are popularly known as dance bar. They belong to different strata of society and are a class by themselves. 83. These observations, according to learned counsel, are contrary to the decision of this Court in Sanjeev Coke Manufacturing Company Vs. M/s Bharat Coking Coal Limited Anr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not inherently dangerous or pernicious and cannot be treated akin to trades that are res extra commercium. Bar dancers, therefore, have a fundamental right to practice and pursue their profession/occupation of dancing in eating houses, beer bars and permit rooms. The social evils projected by the appellants, according to Mr. Grover, are related to serving and drinking of alcohol and not dancing. Therefore, there was no rational nexus in the law banning all types of dances. He also emphasised that the women can be allowed to work as waitresses to serve liquor and alcoholic drinks. There could be no justification for banning the performance of dance by them. Mr. Grover also submitted that the ban contained in Section 33A violates Article 21 of the Constitution. He submits that the right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Constitution. The deprivation of right to livelihood can be justified if it is according to procedure established by law under Article 21. Such a law has to be fair, just and reasonable both substantively and procedurally. The impugned law, according to Mr. Grover, does not meet the test of substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to regulate sentencing by enactment of appropriate legislation. Such exercise of legislative power is not uncommon and would not interfere with the judicial power in conducting trial and rendering the necessary judgment as to whether the guilt has been proved or not. The submission that the affidavit filed by Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered because it was not verified in accordance with law was rejected with the observations that incorrect verification is curable and steps have been taken to cure the same. The submissions made in Writ Petition 2450 of 2005 that the amendment would not apply to eating houses and would, therefore, not be applicable in the establishments of the petitioners therein was also rejected. It was held that the place of public interest includes eating houses which serve alcohol for public consumption. It was further observed that the amendment covered even those areas in such eating houses where alcohol was not served. The High Court also rejected the challenge to the amendment that the same is in violation of Article 15(1) of the Constitution of India. It has been observed that dancing was not prohibited in the establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 21 is too remote. The respondents, therefore, would invite this Court to examine the issue of livelihood under Article 142 of the Constitution of India being question of law of general public importance. According to Dr. Dhawan, the High Court ought to have protected the bar dancers under Articles 19(1)(a) and 21 also. As noticed earlier, Mr. Rohatgi and Mr. Grover had made similar submissions. We are, however, not inclined to examine the same in these proceedings. No separate appeals have been filed by the respondents specifically raising a challenge to the observations adverse to them made by the High Court. We make it very clear that we have not expressed any opinion on the correctness or otherwise of the conclusions of the High Court with regard to Sections 33A and 33B not being ultra vires Articles 15(1), 19(1)(a) and Article 21. We have been constrained to adopt this approach: 1) Because there was no challenge to the conclusions of the High Court in appeal by respondents. 2) The learned senior counsel of the appellants had no occasion to make submissions in support of the conclusions recorded by the High Court. 3) We are not inclined to exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna Dalmia (supra), this Court reiterated the principles which would help in testing the legislation on the touchstone of Article 14 in the following words : (a) That a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself (b) That there is always presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) That it must he presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mers are not vulnerable and, therefore, there is least likelihood of any indecency, immorality or depravity. He had emphasised that classification to be valid under Article 14 need not necessarily fall within an exact or scientific formula for exclusion or inclusion of persons or things. [See: Welfare Association, A.R.P., Maharashtra (supra)] There are no requirements of mathematical exactness or applying doctrinaire tests for determining the validity as long as it is not palpably arbitrary. (See: Shashikant Laxman Kale Anr. (supra)). 97. We have no hesitation in accepting the aforesaid proposition for testing the reasonableness of the classification. However, such classification has to be evaluated by taking into account the objects and reasons of the impugned legislation; (See: Ram Krishna Dalmia s case supra). In the present case, judging the distinction between the two sections upon the aforesaid criteria cannot be justified. 98. Section 33(a)(i) prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar. This is a complete embargo on performance of dances in the establishment covered under Section 33(a)(i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made from this that there would hardly be any access to the dancers in the exempted establishments as opposed to the easy access in the banned or prohibited establishments. Another justification given is that the type of crowd that visits the banned establishments is also different from the crowd that visits the exempted establishments. In our opinion, all the aforesaid reasons are neither supported by any empirical data nor common sense. In fact, they would be within the realm of myth based on stereotype images. We agree with the submission made by the learned counsel for the appellant, Mr. Mukul Rohtagi and Dr. Dhawan that the distinction is made on the grounds of classes of establishments or classes of persons, who frequent the establishment. and not on the form of dance. We also agree with the submission of the learned senior counsel for the respondents that there is no justification that a dance permitted in exempted institutions under Section 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. We are of the firm opinion that a distinction, the foundation of which is classes of the establishments and clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... access to women. The customers who would be inebriated would pay little heed to the dignity or lack of consent of the women. This conclusion is sought to be supported by a number of complaints received and as well as case histories of girl children rescued from the dance bars. We are again not satisfied that the conclusions reached by the state are based on any rational criteria. We fail to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. Rather it is evident that the same dancer can perform the same dance in the high class hotels, clubs, and gymkhanas but is prohibited of doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the state is illustrated by the fact that an infringement of section 33A(1) by an establishment covered under the aforesaid provision would entail the owner being liable to be imprisoned for three years by virtue of section 33A(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitute from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act. 102. We fail to see how any of the above observations are of relevance in present context. The so called distinction is based purely on the basis of the class of the performer and the so called superior class of audience. Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. We are unable to accept the presumption which runs through Sections 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes; it would lead to immorality, decadence and depravity. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The aforesaid presumption is also perplexing on the ground that in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that night work prohibited, so injuriously threatens to impair women s peculiar and natural functions. Such work, according to the State, exposes women to the dangers and menaces incidental to night life in large cities. Therefore, it was permissible to enable the police to preserve and promote the public health and welfare. The aforesaid conclusion was, however, based on one very important factor which was that the legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. In our opinion, as pointed out by the learned counsel for the respondents, in the present case, there was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality or morals. 105. The next justification for the so called intelligible differentia is on the ground that women who perform in the banned establishment are a vulnerable lot. They come from grossly deprived backgrounds. According to the appellants, most of them are trafficked into bar dancing. We are unable to accept the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the legislature understands and appreciates the needs of its people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. In the present case, the appellant has failed to give any details of any experience which would justify such blatant discrimination, based purely on the class or location of an establishment. 107. We are of the opinion that the State has failed to justify the classification between the exempted establishments and prohibited establishments on the basis of surrounding circumstances; or vulnerability. Undoubtedly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty bound to disclose the reasons for the ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality in the dance bars. Such a presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India. Is the impugned legislation ultra vires Article 19(1)(g) 109. It was submitted by the learned counsel for the appellants that by prohibiting dancing under Section 33A, no right of the bar owners for carrying on a business/profession is being infringed [See: Fertilizer Corporation Kamgar Union (Regd.), Sindri Ors. (supra)]. The curbs are imposed by Section 33A and 33B only to restrict the owners in the prohibited establishments from permitting dance to be conducted in the interest of general public. Since the dances conducted in establishments covered under Section 33A were obscene, they would fall in the category of res extra commercium and would not be protected by the fundamental right under Article 19(1)(g). The submission is also sought to be supported by placing a reliance on the reports of Prayas and Subhada Chaukar. The restriction is also placed to curb exploitation of the vulnerability of the young girls who come from poverty stricken background and are prone to trafficking. In support of the submission, the learned counsel relied on a number of judgments of this Court as well as the American Courts, including Municipal Corporation of the City of Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The Restaurants/Dance Bar owners also have to obtain licenses/permissions as listed below: i. Licence and Registration for eating house under the Bombay Police Act, 1951. ii. License under the Bombay Shops and Establishment Act, 1948 and the Rules thereunder. iii. Eating House license under Sections 394, 412A, 313 of the Bombay Municipal Corporation Act, 1888. iv. Health License under the Maharashtra Prevention of Food Adulteration Rules, 1962. v. Health License under the Mumbai Municipal Corporation Act, 1888 for serving liquor; vi. Performance License under Rules 118 of the Amusement Rules, 1960 ; vii. Premises license under Rules 109 of the amusement Rules; viii. License to keep a place of Public Entertainment under Section 33(1), clause (w) and (y) of the Bombay Police Act, 1951 and the said Entertainment Rules; ix. FL III License under the Bombay Prohibition Act, 1949 and the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or a Form E license under the Special Permits Licenses Rules for selling or serving IMFL Beer. x. Suitability certificate under the Amusement Rules. 113. Before any of the licenses are grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar conditions and restrictions are also prescribed under the Performance Licence : The Licensee shall not, at any time before, during the course of or subsequent to any performance, exhibition, production, display or staging, permit or himself commit on the stage or in any part of the auditorium or outside it : (i) any exhibition or advertisement whether by way of posters or in the newspapers, photographs of nude or scantily dressed women; (ii) any performance at a place other than the place provided for the purpose; (iii) any mixing of the cabaret performers with the audience or any physical contact by touch or otherwise with any member of the audience; (iv) any act specifically prohibited by the rules. 116. The Rules under the Bombay Police Act, 1951 have been framed in the interest of public safety and social welfare and to safeguard the dignity of women as well as prevent exploitation of women. There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions recorded in the Preamble as well the Objects and Reasons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Reliance was placed upon State of Bombay Vs. R.M.D. Chamarbaugwala Anr. (supra), Khoday Distilleries Ltd. Ors. Vs. State of Karnataka Ors. (supra), State of Punjab Anr. Vs. Devans Modern Breweries Ltd. Anr. (supra), New York State Liquor Authority Vs. Dennis BELLANCA, DBA The Main Event, Et Al.(supra), Regina Vs. Bloom (supra) to substantiate the aforesaid submissions. Therefore, looking at the degree of harm caused by such behaviour, the State enacted the impugned legislation. 118. We are undoubtedly bound by the principles enunciated by this Court in the aforesaid cases, but these are not applicable to the facts and circumstances of the present case. In Khoday Distilleries Ltd. (supra), it was held that there is no fundamental right inter alia to do trafficking in women or in slaves or to carry on business of exhibiting and publishing pornographic or obscene films and literature. This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab Anr. Vs. Devans Modern Breweries Ltd. Anr. (supra) dealt with liquor trade, whereas the present case is clearly different. The reliance on New Yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression any kind or type of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B. 122. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability. Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A. 123. In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove the working conditions of the persons working as bar girls. In similar circumstances, this Court in the case of Anuj Garg (supra) had made certain observations indicating that instead of putting curbs on women s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. 125. Keeping in view the aforesaid circumstances, we are not inclined to interfere with the conclusions reached by the High Court. Therefore, we find no merit in these appeals and the same are accordingly dismissed. 126. All interim orders are hereby vacated. J U D G M E N T ALTAMAS KABIR, CJI. 1. Having had an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o other skills, with which they could earn a living. Though some of the women engaged in bar dancing may be doing so as a matter of choice, not very many women would willingly resort to bar dancing as a profession. 5. Women worldwide are becoming more and more assertive of their rights and want to be free to make their own choices, which is not an entirely uncommon or unreasonable approach. But it is necessary to work towards a change in mindset of people in general not only by way of laws and other forms of regulations, but also by way of providing suitable amenities for those who want to get out of this trap and to either improve their existing conditions or to begin a new life altogether. Whichever way one looks at it, the matter requires the serious attention of the State and its authorities, if the dignity of women, as a whole, and respect for them, is to be restored. In that context, the directions given by my learned Brother, Justice Nijjar, assume importance. 6. I fully endorse the suggestions made in paragraph 123 of the judgment prepared by my learned Brother that, instead of generating unemployment, it may be wiser for the State to look into ways and means in which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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