TaxTMI 
TaxTMI 
1958 (5) TMI 51
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.... and the only means of her livelihood as also that of her cousin sister and two younger brothers who are her dependants and who wholly live on her earnings made by prostitution. She complains that the Suppression of Immoral Traffic in Women and Girls Act, 1956, (hereinafter referred to as the Act) is ultra vires of the Constitution of India, as it illegally prohibits the petitioner from carrying on her trade and in any case imposes unreasonable and illegal restriction on the same. She alleges that the result of the enforcement of the Act would be that she would be left to starve as she has no other source of livelihood and the chances of her being rehabilitated as a good housewife in society are nil. There is an averment in the petition as also in the affidavit filed in support of it that she knows no other trade or profession and consequently cannot carry on any other profession or trade. On these facts she has prayed for the issue of a writ of mandamus or any other writ, order or direction commanding the respondents Nos. 1 to 3 to restrain from interfering with the petitioner's carrying on her trade of prostitution or from interfering with the visit of her customers to ....
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....l can be no grounds on which the Act can be invalidated if it has been constitutionally passed and is also not otherwise ultra vires. Hardship is no consideration while dealing with the constitutionality of an Act. The Act has been passed "to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for the suppression of immoral traffic in women and girls," which has been ratified by the Government of India. The first ground of attack is that the petitioner's right to carry on her profession of a prostitute is absolute under Article 19 of the Constitution of India and is subject only to such restrictions, which may be considered to be reasonable in the interests of the general public. Article 19(1)(g) of the Constitution of India runs as follows :-- "All citizens have the right-- (g) to practise any profession, or to carry on any occupation, trade or business." Clause (6) of the said Article runs as follows :-- "Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law imposing in the interests of the general public,....
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.....A. Tanjore [1953]4SCR290 . It is also settled law that restrictions imposed in an Act are subject to judicial scrutiny and it will be open to courts to say whether a particular restriction is reasonable or not (see Chintaman Rao v. State of M. P.) (A) (refer-ed to above), It is not necessary to multiply cases on this point because it is now settled beyond controversy that the question whether a restriction is reasonable or not is justiciable. It may also be remembered in this connection that under the provisions of the Penal Code Prostitution is not an offence. Section 372 of the Penal Code only prohibits the sale, letting to hire, or otherwise disposing of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose. After having read the Act carefully I am of the opinion that it is not quite correct to say that the Act prohibits the carrying on of the profession or trade of a prostitute though it cannot also be denied that....
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....pose of prostitution. Section 9 makes the seduction by any person having the custody or care of a woman or girl or who causes or aids or abets the seduction of a woman or girl for prostitution, punishable. Section 10(1) (a) authorises a court to release under certain specified circumstances a person convicted of an offence punishable under the Act on probation of good conduct. Section 10 (1) (b) permits a court to let off certain offenders under the Act after admonishing them in the manner provided for in Sub-section (IA) of Section 562, Cr. P. C. Section 10 (2) however authorizes a court to detain a person convicted of an offence punishable under Section 7 of the Act in the protective home for a period of not less than two years and not more than five years in lieu of sentence of fine or imprisonment. Sub-section 3 of Section 10 lays down that in no case a person convicted Under Section 3 or Section 6 or Section 9 shall be released on probation or with admonition. Section 12 authorises a court to bind down persons who have been habitually committing, or attempting to commit, or abetting the commission of offences punishable under the Act, and who have been convicted under an....
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....g in the trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down." (See the case of Cooverjee v. Excise Commissioner, Ajmer [1954]1SCR873 . It cannot be denied that "prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community." It must also be noticed that with respect to the suppression of the traffic in women and children, several International instruments are in force. They are enumerated below : 1. International Agreement of 18th May, 1904 for the suppression of the White Slave Traffic, as amended by the Protocol approved by the General Assembly of the United Nations on 3rd December, 1948; 2. International Convention of 4th May, 1910 for the suppression of the White Slaves Traffic, as amended by the above mentioned Protocol; 3. International Convention of 30th September, 1921 for the Suppression of the Traffic in Women and Children, as amended by the Protocol approved by the General Assembly of th....
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....not be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable condition as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupation by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted........" 6. Article 35(a)(ii) of the Constitution of India runs as follows : "Notwithstanding anything in this Constitution,-- (a) Parliament shall have, and the Legislature of a state shall not have, power to make laws- (ii) for prescribing punishment for these acts which are declared to be offences under this Part;" This means that Parliament alone could legislate for prescribing punishments for the offences contemplated by Article 23 of the Constitution of India. A mere perusal of Sections 3 to 10 and 18 of the Act s....
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....ostitute is not only to encourage parasitism but also to offer inducement to the prostitute to carry on her profession or trade which she may not be inclined to carry on otherwise. Similarly the presumption against touts and pimps or persons who exercise control, direction or influence over a prostitute or aid, abet or compel her to carry on the trade or profession of a prostitute is a reasonable presumption and is in the interests of the public at large. But the same cannot be said in respect of persons mentioned in Section 4 (2) (a) of the Act. J shall deal with this matter later on. Similarly the bar against procuring, inducing or taking a woman or girl for the sake of prostitution enacted by Section 5 is a bar justifiable in public interest and is a restriction which must be held to be reasonable. The same thing may be said about the bar against detaining a woman or girl in premises where prostitution is carried on, enacted by Section 6 of the Act. The restrictions imposed by Section 7 of the Act on a prostitute not to carry on her trade or profession in any premises which are within a distance of two hundred yards of any place of public religious worship, educational ins....
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....f prostitution or loitering for the purpose of prostitution in a manner which causes obstruction or annoyance to any person residing near by or passing by such public place or to offend against public decency for the purpose of prostitution is a bar which must be accepted to be a reasonable one in the interest of society as a whole. Similarly no objection can be had against the provisions of Section 9 which prohibit the seduction or the aiding or abetting for seduction of a person to prostitution, I am leaving Section 10 for the present. To my mind no objection can be had also against Section 12 on the ground of unreasonableness when that section authorises a Magistrate while convicting a person who is a habitual offender under the Act to bind him over for a period not exceeding three years. I have already held that Section 7 embodies reasonable restrictions. That being so it must be held that Section 18 which confers on a Magistrate the power to close brothels and to evict offenders from premises which are situated within 200 yards of any public place referred to in Section 7 of the Act, is also constitutional. 7. The last section which we have to consider in connection w....
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....ement of this Act." The majority view (per Fazl Ali, Mahajan, Mukherjea, Chandra Sekhara Aiyar and Bose, JJ.), was that the provisions of Section 5 (1) were ultra vires the Constitution by reason of their being in conflict with Article 14 of the Constitution. The minority judgment was by Sastri, C. J., who held that provision to be intra vires. Das, J., held the provisions of Section 5(1) ultra vires only so far as it allowed the State Government to direct any case to be tried by the Special Court; the rest of it he held to be valid. In this case Mukherjea, J. observed as follows : "In the case before us, the language of Section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any case or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act. It is not stated that it is only when speedier trial is necessary that the discretion should be exercised. "In the second place, assuming that the preamble throws any light upon the interpretation of the section, I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain an....
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.... New York on the 9th day of May, 1950, for the suppression of immoral traffic in women and girls." It has not been mentioned anywhere in the Act as to what are the guiding principles on which a Magistrate has to make up his mind that it is reasonable to remove a particular prostitute. There is 110 classification at all in the Act. The Act gives a Magistrate discretionary power not to be exercised upon a consideration of the circumstances of the case but a naked and arbitrary power to remove a prostitute outside the limits of his jurisdiction and to prohibit her from re-entering it. "An Act which gives uncontrolled authority to discriminate can be hit by Article 14", Prima facie therefore there appears some substance in the petitioner's contention that it is not a reasonable classification but an arbitrary selection where the selection is left to the absolute and unfettered discretion of the executive government "with nothing to guide or control its action." 10. The present case is quite different from the case of Kathi Riming Rawat v. State of Saurashtra, 1952CriLJ805 , where the clear recital of a definite objective furnished a tangible and rational basis of classi....
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....ance of public order and preservation of peace and tranquillity. Thus under Section 11, the State Government is expected to select only such offences or class of offences or class of cases for being tried by the special Court in accordance with the special procedure as are calculated to affect public safety, maintenance of public order, etc., and under Section 9, the use of the special procedure must necessarily be confined to only disturbed areas or those areas where adoption of public safety measures is necessary." Mukherjea, J., who also held Section 11 of the Ordinance to be intra vires observed as follows : "In my opinion, if the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons the statute itself cannot be condemned as a piece of discriminatory legislation. After all 'the law does all that is needed when it does all that it can, indicates a policy.. . ..... and seeks to bring within the lines all similarly situated so far as its means allow.' Vide, Buck....
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.... dacoity, which were committed by the dacoits during the year 1948 and 1949. . . ....... If Special Courts were considered necessary to cope with an abnormal situation it cannot be said that the vesting of authority in the State Government to select offences for trial by such Courts is in any way unreasonable. In the light of the principles stated already, I am unable to hold that Section 11 of the Ordinance insofar as it authorises the State Government to direct classes of offences or cases to be tried by the Special Court offends against the provision of the equal protection clause in our Constitution." 11. The present case is also dissimilar to the case of Kedar Nath v. State of West Bengal, 1953CriLJ1621 where after considering the background of the legislation and its preamble, purpose and the provisions of the Supreme Court came to the view that the impugned legislation was based on a perfectly intelligible principle of classification having a clear and reasonable relation to the object sought to be attained. 12. Our case is also different from the case of Gurbachan Singh v. State of Bombay 1952CriLJ1147 where Section 27(1) of the City of Bombay Police Act was challenge....
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....strate may pass an order removing a prostitute from a place within his jurisdiction only if he considers that it is necessary to do so in the interests of the general public. Prima facie, again, it appears that the expression "necessary in the interests of the general public" is "too vague, uncertain and elusive a criterion to form a rational basis for the discrimination made." Public interest may be the object which the Legislature had in view or it may be the occasion for making the enactment but it seems that there is no reasonable classification in Section 20 but "only an arbitrary selection is provided for. It therefore appears prima facie that Section 20 is hit by Article 14 of the Constitution, but I express no final opinion on this point because I have not heard the other side and it is only proper that before a provision of a Central Act is held unconstitutional notice must go not only to the respondents but also to the Attorney General of India (Vide Order 27-A of the Code of Civil Procedure). The casual expression of my opinion, which is only tentative, has been made simply because these points were urged before me and it was only fair that I said something about t....
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....itory of India; (e) to reside and settle in any part of the territory of India," I have already said above that under Section 20 of the Act a Magistrate has the power to remove a prostitute from a particular place for all time to come. It may also be noticed that no appeal or revision is provided against that order. In the Full Bench case of Jeshingbhai v. Emperor AIR1950Bom363, the validity of Section 2(1)(b) of the Bombay Public Security Measures Act (VI of 1947) was challenged. Clause (b) of that sub-section reads as follows : "directing that, except in so far as he may be permitted by the provisions of the order, or by such authority or person as may be specified therein, he shall not be in any such area or place in the Province as may be specified in the order." The majority of the Judges (Chagla C. J., and Bavdekar, J.) held that unreasonable restrictions have been placed by that section on the right of a person to reside in any part of the country and move freely throughout the country, and Clauses (d) and (e) of Article 19(1) of the Constitution of India had been infringed. This case in my opinion applies to the facts of our case. The other Full Benc....
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....gislate in respect of this matter both because of Article 35(a)(ii) of the Constitution as also entry 93 in List I of the Schedule. 17. Lastly I come to Section 4 (2) (a) of the Act, read with Clause (c) of Section 4 (2). Section 4 runs as follows : "(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of a woman or girl shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. (2) Where any person is proved- (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting- or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of Sub-section (1); Provided that no such presumption shall be drawn in the case o....
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....nts and also to the Attorney General of India in view of my observations with regard to Section 20 and a part of Section 4 of the Act, but to my mind the present petition has been filed prematurely and it cannot be entertained. 21. So far, no order adverse to the petitioner has been passed in the present case. A person is not entitled to file a writ petition until any of his rights have been infringed. While considering whether or not the rights of a particular person have been infringed it is open to a Court to consider the Constitutionality of a statute under which the impugned orders are passed, but in a case where no orders have been passed under an impugned Act and no rights of the petitioner have been invaded a mere declaration that the impugned Act is unconstitutional cannot be given. In the case of Charanjit Lal v. Union of India [1950]1SCR869 , Mukherjea, J., made the following observations (pp. 52-53) with regard to Article 32 of the Constitution of India; "To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular Legislature as not being covered by a....