TaxTMI 
TaxTMI 
2013 (7) TMI 1018
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....mending the law relating to the regulation of the exercise of powers and performance of the functions by the State Government for maintenance of public order. Section 33 of the Act authorises the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the "Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas & Tamashas, 1960" (hereinafter 'the Rules') were enacted to regulate and maintain discipline in places of public amusement, melas etc. 4. In 1986, orchestra and dance in hotels was permitted to be performed pursuant to the Rules and such institutions functioned under terms and conditions laid down therein. However, several cases relating to violation of the terms and conditions of performance licences came to be registered. It is claimed that 20,196 cases were registered under Section 33(w), 110 and 117 of the Act from the year 2000 till 2005. Also, various cases of minor girls being rescued from dance bars were reported during the said period 2002-2005. The appellants have referred to the case histories from the Government....
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....olice Commissioners to implement these recommendations with immediate effect. 7. On 6th August, 2004 the Chairperson of the Maharashtra State Commission for Women wrote to the State Government about the ongoing racketeering to lure girls to work in dance bars and their consequent acts of prostitution and immoral trafficking stating: "Number of rackets indulging into physical and financial exploitation of girls working in dance bars by forcibly bringing them into this profession are found to be increasing alarmingly. In the metropolis of Mumbai, the problems of the bar girls have acquired grave dimensions and have resulted even into death of many bar girls. These women are forcibly induced into prostitution leading to total destruction of their life.".... Further "Most of the girls working in Dance Bars of Maharashtra State do not hail from State of Maharashtra, but come from other States." .... "In the future this problem in all the probability would spoil our social health by acquiring increasingly grave dimensions, not confined only to Mumbai but extending to the National and even International levels." 8. The letter went on to recommend a ban on such establi....
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....sembly on 30th March, 2005. A detailed reply was given by Shri R.R. Patil, Hon'ble Dy. Chief Minster to the same, on 21st July, 2005. Taking stock of the entire situation, the State Government came to a tentative opinion that performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt and/or injure public morality. It was evident on the basis of the material available to the Government that permit rooms or beer bars licensed under the relevant rules, were indulging in exploitation of women by permitting the performance of dances in an indecent obscene or vulgar manner. The Government, therefore, considered it expedient to prohibit such dance performances in eating houses or permit rooms or beer bars. 12. It was emphasised that even prior to the aforesaid decision, the attention of the Government had been invited to mushrooming growth of illegal dance bars and their ill- effects on the society in general, including ruining of some families. The dance bars were also used as meeting points by criminals and pick up joints of girls indulging in immoral activities. Young girls desirous ....
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....s contended: * That the State of Maharashtra does not have the legislative competence to enact the impugned law as 'morality' does not fall within the ambit of List II of Schedule 7 and that the impugned enactment falls in the concurrent list. * That the impugned amendment was not reserved for the assent of the President and therefore is unconstitutional under Article 254 of the Constitution and also that the State does not have the power to implement international conventions and hence this enactment amounts to fraud on the Constitution. * That the enactment results in interference with the independence of judiciary as no reasons are provided under S. 33A(2) of the Act for awarding lesser punishments. * That the affidavit filed by Youraj Laxman Waghmare was not in compliance with Order 19 Rule 3 of the Civil Procedure Code as no verification clause was provided. * That the establishment of the petitioners is a place of public entertainment and public amusement as defined under S. 2(10) and 2(9) respectively and not an "eating place" under S.2(5A) of the Bombay Prohibition Act, 1951 and hence the provisions do not bind the petitioners. * That S. 33A and 33....
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....itted in such exempted establishments. Hence there is no violation of Article 14. * That with regard to Article 19(I) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified. * That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the "bar girls" in availing benefits of the various Government Schemes for employment and providing alternative dignified vocations. 16. After considering the aforesaid arguments of both the sides, the High Court has, inter alia, held that the type of dancing in both categories of establishments differs and while the difference is not capable of precise legislative definition, it is sufficient to constitute intelligible differentia. However, the fact of different types of dancing being performed bears no nexus with the object sought to be achieved, which, as understood by the Bombay High Court, was limited to the exploitation of women dancers. Consequently, the operation of the impugned enactment is discriminatory. 17. With these observat....
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.... a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence. (4) .................. (5).................... (6) The offence punishable under this section shall be cognizable and non-bailable. 33B. Subject to the other provisions of this Act, or any other law for the time being in force, nothing in section 33A shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf. Explanation.--For the purposes of this section, "sports club" or "gymkhana" means an establish....
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....plaints received from general public including the peoples' representatives, the Government considers it expedient to prohibit the performance of dance, of any kind or type, in an eating house or permit room or beer bar, throughout the State by suitably amending the Bombay Police Act, 1951. However, a provision is also made to the effect that holding of a dance performance in a drama theatre or cinema theatre or auditorium; registered sports club or gymkhana; or three starred or above hotel; or in any other establishment or class establishments which the State Government may specify having regard to tourism policy for promotion of tourism in the State or cultural activities, are not barred but all such establishments shall be required to obtain performance licence in accordance with the said rules, for holding a dance performance. 3. The Bill is intended to achieve the following objectives." Preamble "Whereas the Commissioners of Police, District Magistrates and certain other Officers, have granted performance licences for holding dance performance; And whereas the object of granting such performance licences is to hold such dance performance for public amusement; A....
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....ramanium, the establishments must be understood in broader terms than is understood by the High Court. According to Mr. Harish Salve and Mr. Gopal Subramanium, the judgment of the High Court is too restrictive. 24. It was emphasised by the learned senior counsel that the High Court has failed to understand the distinction between the two provisions and the object sought to be achieved. Mr. Gopal Subramanium has listed the differences factored into the classification made by the impugned enactment. According to the learned senior counsel, the impugned enactment is based on intelligible differentia which could be categorized under the following broad heads: (i) Type of dance; (ii) Form of remuneration; (iii) Demand for vulnerable women; (iv) Degree of Harm; (v) Regulatory feasibility. 25. It was submitted that in the banned establishments, the women who dance are not professional dancers. In fact, they are majorly trafficked into this profession or have taken this profession when they had no other option. Further, the dance is vulgar and obscene. Women are showered with money when they are dancing, which does not happen in the exempted establishments. Learned sen....
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.... Shubhada Chaukhar, learned senior counsel submitted that 84% of the bar dancers are from outside the State of Maharashtra. These girls are lured into bar dancing on false pretext. Supporting this submission, the following observations are pointed out in the same report: "Some unmarried girls have entered the world of bars just because of its glamour. Not a few have come of their own free will. Many less educated girls are attracted to a livelihood that makes them quick money". 29. On the basis of the aforesaid, learned senior counsel submitted that the activities that are carried out in establishments covered under Section 33A i.e. not just the dance itself but the surrounding circumstances of the dance are calculated to raise the illusion of access to women, irrespective of the consent or dignity of women, in men who are often in an inebriated condition. In this context, learned senior counsel relied on the case history of girl children rescued from the dance bar(s) under Immoral Traffic (Prevention) Act, 1956; complaints of victims family against illicit relations with bar dancers; complaints of social organizations against dance bars; copies of First Information Report....
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.... on their employers. In support of the aforesaid submissions, reliance was placed upon Prayas and Shubhada Chaukar Reports. 33. It was submitted that the High Court erroneously ignored the contents of the reports extracted above. 34. Now coming to the next head: "Justifying the classification on the criterion of "Degree of Harm." The appellants emphasised that the characteristics of the dancing that is sought to be prohibited have, to a greater degree than the activities that may be comparable at first blush, created an atmosphere where physical and emotional violence to women was both profitable and normalized. It is, therefore, rational to classify these establishments as a separate class based on the degree of harm that they trigger. Support for this submission is sought from the observations made by this Court in Ram Krishna Dalmia Vs. Justice S.R. Tendolkar[AIR 1958 SC 538] wherein it was observed as follows: "The decisions of this Court further establish - (d) that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest." 35. Reliance was also placed on the observations mad....
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....utionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear." 37. The next judgment relied upon by the appellants is Radice Vs. People of the State of New York[264 U.S. 292 (1924)], in which the New York Statute was challenged, as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p.m. and 6 a.m. The Court upheld the legislation in the following words : "Nor is the statute vulnerable to the objection that it constitutes a denial of the equal protection of the laws. The points urged under this head are (a) that the act discriminates between cities of the first and second class and other cities and communities; and (b) excludes from its operation women emplo....
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....tters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation." 39. On the basis of the aforesaid extracts, learned counsel submitted that the classification between the exempted establishments and prohibited establishment is also based on "Degree of Harm". The legislature is the best judge to measure the degree of harm and make reasonable classification. 40. Coming to the next factor- Regulatory Feasibility, which, according to the learned senior counsel, supports the validity of the classification. It was submitted that the import of the impugned enactment is not that, what is prohibited in establishments under Section 33A is to be permitted in establishments under Section 33B. It is submitted by the appellants that the acts which are degrading, dehumanising and facilitating of gender violence in society do not cease to be so simply by virtue of it being made exclusively available to an economically stronger sections of society. It is the submission of the appellants that the State has already made extensive regulatory provisions under various enactments. This relates to the grant of nature of....
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....here determined that the night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination". 41. Relying on the aforesaid, it is submitted that exempted establishments as understood by Section 33B are gymkhanas, three starred or above hotels. In order to be considered three stars or above establishments, such establishments have to meet greater degrees of scrutiny, both from Government and from private associations (hoteliers, reviewers etc). In fact, such establishments generally maintain standards higher than the standards expected of them under the regulation. Therefore, the regulation of such establishments is significantly easier, as opposed to the prohibited establishments. These establishments function, according to the appellants, to a greater degree, outside the constant scrutiny of the law. It is also pointed out that it is significantly easier to police the exempted establishments, which at present are six in number, than attempting to police the much g....
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....e dance bar on gender relations of not just the bar dancer, but for the women around the area. The High Court, according to the appellants, failed to take into account the object that the statutory provisions are in respect of an activity of exploitation of women conducted for financial gain by bar owners and their intermediaries. It is emphasised that the issue involved in this matter is not merely about dancing in the bars, but involves larger issues of dignity of women, the destruction of environments and circumstances where it is profitable to keep women vulnerable. In such circumstances, the law is being used as a tool for dealing with the evils of human trafficking and prostitution, rather than simply prohibiting such activity without the administrative resources to effectively implement such prohibition. It is further submitted that the State is bound by this duty to protect the interest of its citizens especially its weaker sections under the Constitution. The legislation is sought to be justified on the touchstone of Article 23, Article 39(e) and Article 51A(e) of the Constitution. The action of' the Government is also justified on the ground that it is necessary....
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....eopardise in Mr. Chief Justice Warren's words, the States' "right ... to maintain a decent society". Jacobellis v Ohio 378 US at 199 (dissenting opinion)" 45. It is further pointed out that the decision to ban obscene dancing is also in consonance with Convention on the Elimination of All Forms of Discrimination Against Women (CEADAW). Learned senior counsel further submitted that establishments covered by Section 33A have a greater direct and indirect effect on the exploitation of women, and the resultant and causative violence against women. It is submitted that the degree of effect on the subjects covered by the objects of the enactment are greater than any effect that might be attributable to exempted establishments. 46. In any event, exempted establishments will also not be permitted to carry out such performances, but are left to the operation of parallel regulation simply because they are significantly fewer in number and their very nature facilitates effective regulation. Therefore, according to the learned senior counsel, the impugned enactment is not discriminatory as it makes a reasonable legislative classification which has a direct nexus with the ob....
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...., trade or occupation is subject to restrictions in Article 19(6). Therefore, by prohibiting dancing under Section 33A, no right of the bar owners are being infringed. The curbs imposed by Sections 33A and 33B only restrict the owners of the prohibited establishments from permitting dances to be conducted in the interest of general public. The term "interest of general public" is a wide concept and embraces public order and public morality. The reliance in support of this proposition was placed on State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors.[ AIR 2006 SC 212] Reference was also made to Municipal Corporation of the City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr.[ (1986) 3 SCC 20], wherein this Court gave a wide meaning to "interest of general public" and observed as follows : "The expression in the interest of general public' is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution." 50. Factually, it was emphasised that the history of the dance bars and the activities performed within the dance bars show that they are not set....
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....n the basis of the above, it was submitted that the bar owners with a view to attract customers introduced dance shows where extremely young girls dance in an indecent, obscene and vulgar manner which is detrimental to the dignity of women and depraves and corrupt the morality. 54. The second limb of the submission is that the prohibition does not bar the restaurant owners or the beer parlour owners from running their respective establishments i.e. restaurant business, beer parlours etc. What is being prohibited is only the dancing as a form of entertainment in such establishments. The bar owners can still conduct entertainment programmes like music, orchestras etc which are not prohibited. It is submitted that loss of income cannot be a reason for the bar owners to claim that their right to trade and profession is being infringed. This submission is sought to be supported by the observations of this Court in T.B. Ibrahim Vs. Regional Transport Authority, Tanjore[[1953] 4 SCR 290]. In this case it is observed by this Court as follows: "....................There is no fundamental right in a citizen to carry on business wherever he chooses and his right must he subject to any r....
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.... publishing pornographic or obscene films and literature is not a fundamental right as such activities are vicious and pernicious. Reliance was placed on the following observations: "The correct interpretation to be placed on the expression "the right to practice any profession, or to carry on any occupation, trade or business" is to interpret it to mean the right to practice any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality. .........This is apart from the fact that under our Constitution the implied restrictions on the right to practice any profession or to carry on any occupation, trade or business are made explicit in clauses (2) to (6) of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions." "It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium, (outside commerce). There cannot be a business ....
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....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 or exhibited are of such a character that their performance or exhibition in a place of common resort amounts to an outrage of public decency or tends to corrupt or deprave the dignity of women and public morality. Therefore in the present circumstances, the State, in the interest of dignity of women, maintenance of public order and morality has banned dances in such establishments where regulation is virtually impossible. Since the obscene and vulgar dancing is a res extra commercium, the establishments cannot claim a fundamental right to conduct dance therein. 58. It is further submitted that the legislation also does not infringe any fundamental right of the bar dan....
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....es traceable to evils, material welfare, disruption of cultural pattern, fostering of prostitution, problems of daily life and multiplicity of crimes. Learned senior counsel for the appellants strongly relied upon the Statement of Objects and Reasons and the Preamble of the amending Act to reiterate that the State is enjoined with the duty to protect larger interest of the society when weaker sections are being exploited as objects of commerce and when there is issue of public order and morality involved. 61. The appellants have relied on a number of judgments of this Court to illustrate the concept of "reasonable restriction" and the parameters within which the court will examine a particular restriction as to whether it falls within the ambit of Article 19(6). Reference was made to the State of Madras Vs. V.G. Row[AIR 1952 SC 196], B.P. Sharma Vs. Union of India & Ors.[ (2003) 7 SCC 309], M.R.F. Ltd. Vs. Inspector Kerala Govt. & Ors.[ (1998) 8 SCC 227]. Since the principles are all succinctly defined, we may notice the observations made by this Court in B.P. Sharma's case (supra). "The main purpose of restricting the exercise of the right is to strike a balance between i....
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.... a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of constitutionality of the Act will naturally arise." 62. Thereafter, Mr. Subramanium has cited State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra) in support of the submission that Statement of Objects and Reasons would be relevant for considering as to whether it is permissible to place a total ban under Article 19(6). After considering the principles laid down earlier, this court concluded as under:- "We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction." 63. Relying on the aforesaid, it was submitted that while considering the reasonableness, the court should consider the purpose of restriction imposed, extent of urgency, prevailing conditions at the time when the restriction was impose....
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....mitted that the restrictions imposed are reasonable and the legislation deserves to be declared intra vires the constitutional provisions. 65. Further, it was submitted that the legislative wisdom cannot be gone into by the court. The Court can only invalidate the enactment if it transgresses the constitutional mandate. It is submitted that invalidation of a statute is a grave step and that the legislature is the best judge of what is good for the community. The legislation can only be declared void when it is totally absurd, palpably arbitrary, and cannot be saved by the court. It is reiterated that the principle of "Presumption of Constitutionality" has to be firmly rebutted by the person challenging the constitutionality of legislation. The United States Supreme Court had enunciated the principle of constitutionality in favour of a statute and that the burden is upon the person who attacks it to show that there has been a clear transgression of any Constitutional provision. The appellants relied on the observations made in Charanjit Lal Chowdhury Vs. Union of India & Ors.[ AIR 1951 SC 41] wherein this Court observed as follows : "It must be presumed that a legislature unde....
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....nstitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no two views that are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v State of Kerala (1979) 1 SCC 23 para 6. 69. The same principle was reiterated in Kedar Nath Singh Vs. State of Bihar[AIR 1962 SC 955] which is as follows : "It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation would render them unconstitutional, the court would lean in favour of the former construction." 70. On the basis of the above, it was submitted that this Court ought to read down the provision in the following manner: "All dance" found in Section 33A of the Police Act may be read down to mean t....
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....4, 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 trafficking in women are misconceived. There are adequate measures in the existing provisions, licensing conditions which would safeguard the dignity of women. Relying on Sections 370 and 370A of the IPC, he submits that there are adequate alternate mechanisms for preventing trafficking in women. Elaborating on the submissions that dance is protected by Article 19(1)(a) of the Constitution being a part of fundamental right of speech and expression, he relied upon the observations made by this Court in Sakal Papers (P) Ltd. & Ors. Vs. The Union of India[(1962) 3 SCR 842]. He has also made a reference to some decisions of the High Court recognizing that dancing and cabaret are protected rights under Article 19(1)(a). He point....
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....strictions 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 impugned Act. The present law ends up victimising its subject in the name of protection. In that regard the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging the proportionality should be a standard capable of being called reasonable in a modern democratic society. Instead of putting curbs on women's freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf. Also with the advent of modern State, new models of security must be developed. There can be a setting where the cost of secu....
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....men start dancing it is presumed that it would arouse lust in the male customers. He emphasised the categorization of establishments under Sections 33A and 33B does not specify the twin criteria: (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation. He submits that there is a clear discrimination between the prohibited establishments and the exempted establishments. He points out that the only basis for the differentiation between the exempted and prohibited establishments is the investment and the paying capacity of patrons. Such a differentiation, according to Mr. Rohatgi, is not permissible under the Constitution. 74. The next submission of Mr. Rohatgi is that Article 21 guarantees the right to life which would include the right to secure a livelihood and to make life meaningful. Article 15(1) of the Constitution of India guarantees the fundamental right that prohibits discrimination against any citizen, inter alia, on the ground only of sex. Similarly Article 15(2) l....
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....family, community, neighbors and street knowledge. Therefore, according to the Mr. Rohatgi, the allegations with regard to trafficking to the dance bars by middlemen are without any basis. Most of the girls who performed dance are generally illiterate and do not have any formal education. They also do not have any training or skills in dancing. This clearly rendered them virtually unemployable in any other job. He, therefore, submits that the SNDT Report is contradictory to the Prayas Report. Thus, the State had no reliable data on the basis of which the impugned legislation was enacted. Mr. Rohatgi further submitted that there are sufficient provisions in various statutes which empowered the Licensing Authority to frame rules and regulations for licensing/controlling places of public amusement or entertainment. By making a reference to Rules 120 and 123 framed under the Amusement Rules, 1960; he submits that no performers are permitted to commit on the stage or any part of the auditorium any profanity or impropriety of language. These dancers are also not permitted to wear any indecent dress. They are also not permitted to make any indecent movement or gesture whilst dancing. Simi....
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....te and arbitrary. He reiterates that the non obstante clause virtually makes Section 33A stand alone. Further Section 33A(1) is discretion less. It applied to all the establishments and covers all the activities, including holding of performance of dance of any kind or type in any eating house, permit room or beer bar. There is total prohibition in the aforesaid establishments. The breach of any condition would entail cancellation of licence. According to Dr. Dhawan, Section 33A is a draconian code which is discretion less overbroad, arbitrary with mandatory punishment for offences which are cognizable and non-bailable. He then emphasised that the exemption granted to the establishment under Section 33B introduces blatant discrimination. He submits that the classification of two kinds of establishment is unreasonable. According to Dr. Dhawan, it is clear that Section 33B makes distinction on the grounds of "class of establishments" or "class of persons who frequent the establishment" and not on the form of dance. He reiterates the submission that if dance can be permitted in exempted institutions it cannot be banned in the prohibited establishments. He submitted that treating es....
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....0 girls from 50 bars. The report indicates that there are a number of prevalent myths which are without any basis. It is pointed out that, according to the report, the following are the myths :- 1. It is an issue of trafficking from other States and countries. 2. 75% dancers are from Bangladesh. 3. Only 3% are dancers from Maharashtra. 4. Bar culture is against the tradition of Maharashtra. 5. Girls who dance are minors. 6. Bar Dancers hide their faces. 7. Girls don't work hard. 8. Bar Girls can be rehabilitated in Call Centers. 9. Dancing in Bars is sexual exploitation. 10. Girls are forced into sex work. 11. Dance bars are vulgar and obscene. 12. Ban will solve all these problems. 78. The study, in fact, recommends that the dance bars should not be banned. There should be regularization of working conditions of bar dancers. There should be monitoring and prevention of entry of children into these establishments. There should be protection against forced sexual relations and harassments. There should be security of earning, medical benefits and protection from unfair trade practices. The report recommends that there is a need for de....
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....CC 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 to the resolution dated 19th December, 2002 ought to be accepted. According to Dr. Dhawan, acceptance of such suggestions would lead to substantial improvement. If the State really seeks to control obscene bar dancing, he submitted that the solution can be based on ensuring that:- bar girls are unionized; there is adequate protection to the girls and more involvement of the workers in self improvement and self regulation. Dr. Dhawan does not agree with Mr. Gopal Subramanium that this should be treated as a case of trafficking with complicated crisis centric approach. 81. Mr. Anand Grover, learned senior counsel has rebutted the factual submissions made by the appellants. He submits that the State has wrongly mentioned before the court that women who dan....
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....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.[ (1983) 1 SCC 147] Mr. Grover has also reiterated the submission that classification between Sections 33A and 33B establishments has no rational nexus with the object sought to be achieved by the impugned legislation. He submits that whereas Section 33A prohibits any kind or type of dance performance in eating house, permit room or beer bar, i.e., dance bars, Section 33B allows all types and kinds of dances in establishments covered under Section 33B. Learned senior counsel further submits that the object of the impugned legislation is to protect women from exploitation by prohibiting dances, which were of indecent, obscene and vulgar type, derogatory to the dignity of women and likely to deprave, corrupt or injure the public morality, or morals. This is belied ....
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....n. He submits that the right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Constitution. The deprivation of right to livelihood can be justified if it is according to procedure established by law under Article 21. Such a law has to be fair, just and reasonable both substantively and procedurally. The impugned law, according to Mr. Grover, does not meet the test of substantive due process. It does not provide any alternative livelihood options to the thousands of bar dancers who have been deprived of their legitimate source of livelihood. In the name of protecting women from exploitation, it has sought to deprive more than 75,000 women and their families from their livelihoods and their only means of subsistence. Mr. Grover has submitted that there is no viable rehabilitation or compensation provision offered to the bar dancers, in order to tide over the loss of income and employment opportunities. According to learned senior counsel, in the last 7 years, the impact of the prohibition has been devastating on the lives of the bar dancers and their families. This has deprived the erstwhile bar dancers of a life with dignity. In the pre....
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....hat the "place of public interest" includes eating houses which serve alcohol for public consumption. It was further observed that the amendment covered even those areas in such eating houses where alcohol was not served. The High Court also rejected the challenge to the amendment that the same is in violation of Article 15(1) of the Constitution of India. It has been observed that dancing was not prohibited in the establishments covered under Section 33B only on the ground of sex. What is being prohibited is dancing in identified establishments. The Act prohibits all types of dance in banned establishments by any person or persons. There being no discrimination on the basis of gender, the Act cannot be said to violate Article 15(1) of the Constitution. 88. The High Court has even rejected the challenge to the impugned amendment on the ground that the ban amounts to an unreasonable restriction, on the fundamental right of the bar owners and bar dancers, of freedom of speech and expression guaranteed under Article 19(1)(a). The submission was rejected by applying the doctrine of pith and substance. It has been held by the High Court that dance performed by the bar dancers can not....
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....d to Sections 33A and 33B not being ultra vires Articles 15(1), 19(1)(a) and Article 21. We have been constrained to adopt this approach: 1) Because there was no challenge to the conclusions of the High Court in appeal by respondents. 2) The learned senior counsel of the appellants had no occasion to make submissions in support of the conclusions recorded by the High Court. 3) We are not inclined to exercise our jurisdiction under Article 142, as no manifest injustice has been caused to the respondents. Nor can it be said that the conclusions recorded by the High Court are palpably erroneous so as to warrant interference, without the same having been challenged by the respondents. We, therefore, decline the request of Dr. Rajeev Dhawan. 91. This now brings us to the central issue as to whether the findings recorded by the High Court that the impugned amendment is ultra vires Article 14 and 19(1)(g) suffers from such a jurisdictional error that they cannot be sustained. Is the impugned legislation ultra vires Article 14? 92. Before we embark upon the exercise to determine as to whether the impugned amendment Act is ultra vires Article 14 and 19(1)(g), it would be appo....
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....anifest by experience and that its discriminations are based on adequate grounds; (d) That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can he conceived existing at the time of the legislation; and (f) That while good faith and knowledge of the existing conditions on the part of the legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation." (Italics are ours) 94. These principles were reiterated by this Court in Shashikant Laxman Kale (supra). The relevant observat....
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....hna Dalmia's case supra). In the present case, judging the distinction between the two sections upon the aforesaid criteria cannot be justified. 98. Section 33(a)(i) prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar. This is a complete embargo on performance of dances in the establishment covered under Section 33(a)(i). Section 33(a) contains a non-obstante clause which makes the section stand alone and absolutely independent of the act and the rules. Section 33(a)(ii) makes it a criminal offence to hold a dance performance in contravention of sub-section(i). On conviction, offender is liable to punishment for 3 years, although, the Court may impose a lesser punishment of 3 months and fine, after recording special reasons for the same. We are in agreement with the submission of Dr. Dhawan that it is a particularly harsh provision. On the other hand, the establishments covered under Section 33B enjoy complete exemption from any such restrictions. The dance performances are permitted provided the establishments comply with the applicable statutory provisions, Bye-Laws, Rules and Regulations. The classification of the ....
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....submission of the learned senior counsel for the respondents that there is no justification that a dance permitted in exempted institutions under Section 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. We are of the firm opinion that a distinction, the foundation of which is classes of the establishments and classes/kind of persons, who frequent the establishment and those who own the establishments can not be supported under the constitutional philosophy so clearly stated in the Preamble of the Constitution of India and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender. The Preamble of the Constitution of India as also Articles 14 to 21, as rightly observed in the Constitutional Bench Judgment of this Court in I.R. Coelho (supra), form the heart and soul of the Constitution. Taking away of these rights of equality by any legislation would require clear proof of the justification for such abridgment. Once the respondents had given prima facie proof of the arbitrary classification of the establishments under Sections 33A and 33B, it was duty of the State to....
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....nce that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the state is illustrated by the fact that an infringement of section 33A(1) by an establishment covered under the aforesaid provision would entail the owner being liable to be imprisoned for three years by virtue of section 33A(2). On the other hand, no such punishment is prescribed for establishments covered under Section 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Article 14 of the Constitution of India. Mr. Subramaniam had placed strong reliance on the observations made by the Court in the State of Uttar Pradesh Vs. Kaushailiya & Ors. (supra), wherein it was observed as follows: "7. The next question is whether the policy so disclosed offends Article 14 of the Constitution. It has been well settled that Article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe Article 14 of the Constitution if the classification is founded on an intelligib....
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....ons 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes; it would lead to immorality, decadence and depravity. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The aforesaid presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions. 103. We, therefore, decline to accept the submission of Mr. Subramaniam that the same kind of dances performed in the exempted establishments would not bring about sexual arousal in male audience as opposed to the male audience frequenting the banned establishments meant for the lower classes having le....
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....eprave, corrupt or injure the public morality or morals. 105. The next justification for the so called intelligible differentia is on the ground that women who perform in the banned establishment are a vulnerable lot. They come from grossly deprived backgrounds. According to the appellants, most of them are trafficked into bar dancing. We are unable to accept the aforesaid submission. A perusal of the Objects and the Reasons would show that the impugned legislation proceed on a hypothesis that different dance bars are being used as meeting points of criminals and pick up points of the girls. But the Objects and Reasons say nothing about any evidence having been presented to the Government that these dance bars are actively involved in trafficking of women. In fact, this plea with regard to trafficking of women was projected for the first time in the affidavit filed before the High Court. The aforesaid plea seems to have been raised only on the basis of the reports which were submitted after the ban was imposed. We have earlier noticed the extracts from the various reports. In our opinion, such isolated examples would not be sufficient to establish the connection of the dance bar....
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.... ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality in the dance bars. Such a presumption is abhorrent to the resolve in the Preamble of the Constitution to secure the citizens of India. "Equality of status and opportunity and dignity of the individual". The State Government presumed that the performance of an identical dance item in the establishments having facilities less than 3 stars would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals; but would not be so in the exempted establishments. These are misconceived motions of a bygone era which ought not to be resurrected. 108. Incongruously, the State does not find it to be indecent, immoral or derogatory to the dignity of women if they take up other positions in the same establishments such as receptionist, waitress or bar tender. The women that serve liquor and beer to custo....
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.... Prayas and Subhada Chaukar. The restriction is also placed to curb exploitation of the vulnerability of the young girls who come from poverty stricken background and are prone to trafficking. In support of the submission, the learned counsel relied on a number of judgments of this Court as well as the American Courts, including Municipal Corporation of the City of Ahmedabad (supra), wherein it was held that the expression "in the interest of general public" under Article 19(6) inter alia includes protecting morality. The relationship between law and morality has been the subject of jurisprudential discourse for centuries. The questions such as: Is the development of law influenced by morals? Does morality always define the justness of the law? Can law be questioned on grounds of morality? and above all, Can morality be enforced through law?, have been subject matter of many jurisprudential studies for over at least a century and half. But no reference has been made to any such studies by any of the learned senior counsel. Therefore, we shall not dwell on the same. 110. Upon analyzing the entire fact situation, the High Court has held that dancing would be a fundamental right an....
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....inment Rules; ix. FL III License under the Bombay Prohibition Act, 1949 and the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or a Form "E" license under the Special Permits & Licenses Rules for selling or serving IMFL & Beer. x. Suitability certificate under the Amusement Rules. 113. Before any of the licenses are granted, the applicant has to fulfil the following conditions : (i) Any application for premises license shall accompanied by the site-plan indicating inter-alia the distance of the site from any religious, educational institution or hospital. (ii) The distance between the proposed place of amusement and the religious place or hospital or educational institution shall be more than 75 metres. (iii) The proposed place of amusement shall not have been located in the congested and thickly populated area. (iv) The proposed site must be located on a road having width of more than 10 metres. (v) The owners/partners of the proposed place of amusement must not have been arrested or detained for anti-social or any such activities or convicted for any such offenses. (vi) The distance between two machines which are to be installed in the video parlour ....
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....s well as prevent exploitation of women. There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions recorded in the Preamble as well the Objects and Reasons. [See: State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra)], wherein it is held that the standard of judging reasonability of restriction or restrictions amounting to prohibition remains the same, except that a total prohibition must also satisfy the test that a lesser alternative would be inadequate]. The Regulations framed under Section 33(w) of the Bombay Police Act, more so Regulations 238 and 242 provide that the licensing authority may suspend or cancel a licence for any breach of the license conditions. Regulation 241 empowers the licensing authority or any authorised Police Officer, not below the rank of Sub Inspector, to direct the stoppage of any performance forthwith if the performance is found to be objectionable. Section 162 of the Bombay Police Act empowers a Competent Authority/Police Commissioner/District Magistrate to suspend or revoke a license for breach of its cond....
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..... This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority (supra) is completely unfounded because in that case endeavour of the State was directed towards prohibiting topless dancing in an establishment licensed to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with indecent performances in a disorderly house. Hence, this case will also not help the appellants. Therefore, we are not impressed with any of these submissions. All the activities mentioned above can be controlled under the existing regulations. 119. We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms....
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.... In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as follows : (1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes. (2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences....
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.... 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 opportunity of going through the masterly exposition of the law in the crucible of facts relating to the violation of the provisions of Articles 19(1)(a), 19(1)(g) and 21 of the Constitution read with the relevant provisions of the Bombay Police Act, 1951, I wish to pen down some of my thoughts vis-a-vis the problem arising in all these matters requiring the balancing of equities under Articles 19(1)(g) and 21 of the Constitution. 2. The expression "the cure is worse than the disease" comes to mind immediately. 3. As will appear from the judgment of my learned Brother, Justice Nijjar, the discontinuance of bar dancing in establishments below the rank of three star establishments, has led to the closure of a large number of establishments, which has resulted in loss of employment for about seventy- five thousand women employed in the dance bars in various capacities. In fact, as has also been commented upon by my ....