TaxTMI 
TaxTMI 
2019 (1) TMI 1783
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....late the Fundamental Rights of the Petitioners guaranteed under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21 of the Constitution of India. 3) The petitioner No. 1 in Writ Petition (Civil) No. 576 of 2016 is an Association of various Hotel Owners and Bar Owners and/or Conductors of the same, who carry on business of running Restaurants and Bars in Mumbai and is duly registered under the Trade Unions Act. Petitioner No. 2 is the secretary of petitioner No. 1 and is a citizen of India, who runs a restaurant and bar. The petitioner in Writ Petition (Civil) No. 24 of 2017, R.R. Patil Foundation is a registered Union under the provisions of the Bombay Public Trust Act and the President thereof has been authorised to file the writ petition. The petitioner in Writ Petition (Civil) No. 119 of 2017 is the Bhartiya Bargirls Union, registered under the Trade Union Act, 1926 and represented through its Hony. President. The petition is filed in a representative capacity on behalf of a large number of women dancers, singers and waitresses. 4) Respondent No.1 in all the three writ petitions is the State of Maharashtra. The other respondents in the three petitions comprise of various department....
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....or maintaining public safety and for taking necessary steps in the interests of public order, decency and morality. The Commissioner of Police has accordingly framed Rules for Licensing and Controlling Places of Public Entertainment, 1953 and the Amusement Rules. According to the provisions of Chapter 8 of the said Amusement Rules, a Premises Licence is granted after all the requirements prescribed under Rules 108 and 108(A) are complied with. Chapter 9 of the said Amusement Rules prescribes all the conditions for grant of a Performance Licence. As per the petitioners, their members have been granted valid licences under the provisions of the said Entertainment Rules and Amusement Rules and have been carrying on business since the past several years and their licences have been renewed from time to time. 6) As per the respondent State, it noticed that prostitution rackets were being run in hotel establishments in which dance programmes were being conducted. Even such dance forms were observed as obscene by the State. This resulted in the formation of a Committee for suggestions to deal with aspects mentioned above. After considering guidelines given by the aforesaid Committee and ....
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....men in such places with a view to prevent their exploitation. The Act extends to the whole of the State of Maharashtra. Section 2 of the Act provides definitions to certain terms and the relevant among these are reproduced below: "2(3) "bar room" means a place, to which the owner or proprietor admits the public and where dances are staged by or at the instance of the owner or proprietor of such establishment for the entertainment of customers; (4) "dancer" means any artist performing dance on the stage or in any part of the premises; (8) "obscene dance" means a dance that is obscene within the meaning of Section 294 of the Indian Penal Code and any other law for the time being in force and shall include a dance, - (i) which is designed only to arouse the prurient interest of the audience; and (ii) which consists of a sexual act, lascivious movements, gestures for the purpose of sexual propositioning or indicating the availability of sexual access to the dancer, or in the course of which, the dancer exposes his or her genitals or, if a female, is topless; (10) "place" includes a establishment, house, building, tent and any means of transport whether by sea, land or air;"....
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....es. (2) The owner or proprietor or manager or any person acting on his behalf, shall not allow any obscene dance or exploit any working woman for any immoral purpose in any place and the person committing such act shall, on conviction, be punished with imprisonment for a term which may extend to three years or a fine which may extend to rupees ten lakhs, or with both; and in case of continuing offence, further fine which may extend to rupees ten thousand for each day during which the offence continues. (3) The offences under sub-sections (1) and (2) shall be cognizable and non-bailable and triable by a Judicial Magistrate of the First Class. (4) No person shall throw or shower coins, currency notes or any article or anything which can be monetized on the stage or hand over personally or through any means coins, currency notes or any article or anything which can be monetized, to a dancer or misbehave or indecently behave with the working women or touch her person, in any place. Any person who commits such act or abets the commission of such acts shall, on conviction, be punished with imprisonment for a term which may extend to six months or a fine which may extend to rupees f....
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....ified in Part-A of the Schedule." 16) Schedule attached to the Rules mentions the conditions which are to be complied with. Part A thereof stipulates those conditions which are to be fulfilled before grant of licence whereas Part B stipulates the conditions which are to be fulfilled after grant of licence. It is not necessary to reproduce all those conditions. Since, condition Nos. 2 and 11 of Part A and condition Nos. 2, 6, 9, 12, 16, 17 and 20 of Part B are the subject matter of challenge in these petitions, we are reproducing these conditions hereinbelow: "SCHEDULE General Conditions PART-A Conditions to be complied before grant of Lincence 2. One stage should not be less than 10ft. x 12ft. in size in bar room, with non-transparent partition between hotel, restaurant and bar room area. If the applicant is holding permit room licence then there shall be fixed partition between the permit room and dance room. xx xx xx 11. The place shall be at least one kilometer away from the educational and religious institutions. PART-B Conditions to be fulfilled after grant of Licence 2. The working women, the dancers and waiters/ waitresses must be employed under a written contr....
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....r the Bombay Police Act which is known as public entertainment licence. Likewise, any restaurant owner desirous to have music or dance or either music or dance in the restaurant is further required to obtain Premises and Performance Licence under the Amusement Rules. This power to give licence is vested with the Commissioner of Police as per Section 33 of the Maharashtra Police Act, 1951. Sections 33A and 33B were added by Amendment Act, 2005. These provisions along with Statement of Objects and Reasons are as under: "Statement of Objects and Reasons 21. The Statement of Objects and Reasons clause appended to Bill No. 40 of 2005 as introduced in the Maharashtra Legislative Assembly on 14-6-2005 reads as under: "(1) The Commissioner of Police, District Magistrates or other officers, being Licensing Authorities under the Rules framed in exercise of the powers of sub-section (1) of Section 33 of the Bombay Police Act, 1951 have granted licences for holding dance performance in the area under their respective charges in the State. The object of granting such performance licence is to hold such dance performance for public amusement. It is brought to the notice of the State Govern....
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....ing objectives. 33-A.Prohibition of performance of dance in eating house, permit room or beer bar and other consequential provisions. -(1) Notwithstanding anything contained in this Act or the Rules made by the Commissioner of Police or the District Magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005- (a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited; (b) all performance licences, issued under the aforesaid Rules by the Commissioner of Police or the District Magistrate or any other officer, as the case may be, being the licensing authority, to hold a dance performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled. (2) Notwithstanding anything contained in Section 131, any person who holds or causes or permits to be held a dance performance of any kind or type, in an eating house, permit room or beer bar in contravention of sub-section (1), shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine ....
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....eing violative of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. It may be noted that in the writ petitions filed in the High Court, these provisions were challenged as violative of Articles 15(1) and 21 as well. However, challenge on these grounds was repelled by the High Court. The High Court had held that these provisions suffer from the vice of arbitrariness and, therefore, violative of Article 14 of the Constitution, as they provide for different standards of morality to institutions with similar activities and the activities in Section 33A establishments are less obscene but nonetheless the classification bears no nexus to the object of the Amendment. It was also held that there is a violation of Article 19(1)(a) as dance is a form of expression and the impugned enactment is unreasonable restriction which is not protective by Article 19(2) of the Constitution. Further, these provisions amount to an unreasonable restriction on the right to freedom of profession as the State Government permitted and granted licenses for running such establishments being res commercium and that it deprives the bar owners on their right to carry on their profession and bar dancers to car....
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....fficked into bar dancing. We are unable to accept the aforesaid submission. A perusal of the Objects and 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 bars covered under Section 33-A with trafficking. We, therefore, reject the submission of the appellants that the ban has been placed for the protection of the vulnerable women. 120. The next justification given by the learned counsel for the appellants is on the basis of degree of harm which is being caused to the atm....
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....selves 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 three 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 notions of a bygone era which ought not to be resurrected. 122. 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 bartender. The women who serve liquor and beer to customers do not arouse lust in customers but women dancing would arouse lust. In our opinion, if a certain kind of dance is sensuous in nature and if it causes sexual arousal in men it cannot be said to be more in the prohibited establishments and less in the exempted establishments. Sexual arousa....
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....(i) The Bombay Municipal Corporation Act; (ii) The Bombay Police Act, 1951; (iii) The Bombay Prohibition Act, 1949; (iv) The Rules for Licensing and Controlling Places of Public Entertainment, 1953; (v) The Rules for Licensing and Controlling Places of Public Amusement other than Cinemas; (vi) And other orders as are passed by the Government from time to time. 128. The restaurants/dance bar owners also have to obtain licences/permissions as listed below: (i) Licence and registration for eating house under the Bombay Police Act, 1951; (ii) Licence under the Bombay Shops and Establishment Act, 1948 and the rules made thereunder; (iii) Eating house licence under Sections 394, 412-A, 313 of the Bombay Municipal Corporation Act, 1888; (iv) Health licence under the Maharashtra Prevention of Food Adulteration Rules, 1962; (v) Health licence under the Mumbai Municipal Corporation Act, 1888 for serving liquor; (vi) Performance licence under Rules 118 of the Amusement Rules, 1960; (vii) Premises licence under Rule 109 of the Amusement Rules; (viii) Licence to keep a place of public entertainment under Section 33(1) clauses (w) and (y) of the Bombay Police Act, 195....
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....or at the end of any performance, or during the course of any performance, exhibition, production, display or staging, permit or himself commit on the stage or any part of the auditorium- (a) any profanity or impropriety of language; (b) any indecency of dress, dance, movement or gesture; Similar 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." 132. 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 prev....
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....not only within the establishments but also in the surrounding locality. According to the learned counsel for the appellants, during dance in the bars the dancers wore deliberately provocative dresses. The dance becomes even more provocative and sensual when such behaviour is mixed with alcohol. It has the tendency to lead to undesirable results. Reliance was placed upon State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699], Khoday Distilleries Ltd. v. State of Karnataka [(1995) 1 SCC 574], State of Punjab v. Devans Modern Breweries Ltd. [(2004) 11 SCC 26], New York State Liquor Authority v. Bellanca [69 L Ed 2d 357 : 452 US 714 (1981)] and R. v. Quinn [(1962) 2 QB 245 : (1961) 3 WLR 611 : (1961) 3 All ER 88 (CCA)] to substantiate the aforesaid submissions. Therefore, looking at the degree of harm caused by such behaviour, the State enacted the impugned legislation. 134. 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. [(1995) 1 SCC 574] , it was held that there is no fundamental right inter alia to do trafficking in women or....
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....to be totally counter-productive and cannot be sustained being ultra vires Article 19(1)(g)." Submissions of the petitioners: 22) Mr. Jayant Bhushan, learned senior counsel began his submissions with a fervent plea that the respondent State was bent upon banning altogether dance performances in the bars/permit homes or restaurants etc. His argument was that earlier two attempts of identical nature made by the respondents failed to pass the constitutional muster. The provisions of Sections 33A and 33B inserted vide Amendment Act, 2005 to the Bombay Police Act, 1951 had been struck down as unconstitutional being in contravention of Articles 14 and 19(1)(g) of the Constitution. In spite thereof, the State did not grant licences to any person including the petitioners. This deliberate inaction on the part of the State led to filing of the contempt petition by the petitioners in which notice was issued on May 05, 2014. After receiving the notice in the said contempt petition, the State brought on the statute book Section 33A in another avtar by amendment Act on June 25, 2014. According to the petitioners, it was verbatim similar to Section 33A which was already held unconstitutional a....
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....a wide concept and embraces public order and public morality. The reliance in support of this proposition was placed on State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534 : AIR 2006 SC 212]. Reference was also made to Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai [(1986) 3 SCC 20], wherein this Court gave a wide meaning to "interest of general public" and observed as follows: (SCC p. 31, para 19) "19. 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." xx xx xx 55. The SNDT Report also shows that only 17.40% of the bar girls are from the State of Maharashtra. The bar owners have been exploiting the girls by sharing the tips received and also capitalising on their performance to serve liquor and improve the sales and business. Again reliance is placed on the observations made in PRAYASReport at p. 47 which is as under: "The women working as either dancers or waiters were not paid any salary, but were dependent on tips given by customers in the bar, which var....
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....hasised that the ban also has an adverse social impact. The loss of livelihood of bar dancers has put them in a very precarious situation to earn the livelihood. Mr Rohatgi submitted 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 organised racket that brings women to the dance bars. The girls' interview, in fact, indicated that they came to the dance bars through family, community, neighbours and street knowledge. Therefore, according to 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 educat....
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....urisdiction of the State Legislature to enact a law by a parliamentary legislation is not impermissible. Subject to the provisions contained in Article 254 of the Constitution of India, both will operate in their respective fields. The constitutional scheme in this behalf is absolutely clear and unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in the same field by reason of enactments made by Parliament and the State in exercise of their respective legislative powers contained in List I and List II of the Seventh Schedule of 2 (2004) 1 SCC 320 3 (2004) 6 SCC 36 the Constitution of India but admittedly the field being the same, a question would arise as regards the effect of one Act over the other in the event it is found that there exists a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the provisions of one Act would have to be disobeyed if the provisions of the other are followed. The conflict may exist even where both the laws lead to different legal results. xx xx xx 24. The judgments of this Court clearly lay down the law to the effect that if two Acts produce two....
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....ead of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell & Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is "disproportionate, excessive or unreasonable", yet such challenge would fail on the very ground of the law being "unreasonable, unnecessary or unwarranted". The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution. xx xx xx 101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Ex....
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.... Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] , SCC p. 730, para 136) '136. ... "No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law." In the converse positive form, the expanded article will read as below: "A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law." ' 58. This epoch-making decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] has substantially infused the concept of due process in our constitutional jurisprudence whenever the court has to deal with a question affecting life and liberty of citizens or even a person. Krishna Iyer, J. giving a concurring opinion in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] elaborated, in his inimitable style, the transition from the phase of the rule of law to due process of law. The relevant statement of law given by the learned Judge is quoted below: (SCC p. 337, para 81) '81. ... "Procedure established by law", with its lethal potentiality, will reduce life and liberty to a precarious plaything ....
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....hments inflicted". 61. Our Constitution does not have a similar provision but after the decision of this Court in Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] jurisprudentially the position is virtually the same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence. 62. Until the decision was rendered in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , Article 21 was viewed by this Court as rarely embodying the Diceyian concept of the rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by S.R. Das, J. in his judgment in A.K. Gopalan [A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] that if the law provided the Bishop of Rochester "be boiled in oil" it would be valid under Article 21. But after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] which marks a watershed in the development of c....
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....n the said bars becomes imperative. This was violative of Article 19(1)(g) of the Constitution, both for the owners as well as for such women dancers and waitresses, as it was taking away the freedom of these performers to work on contract basis if they so wanted. 32) As far as Condition No.6 relating to giving of tips is concerned (which goes along with Condition No. 11 of Part A), argument is that the State cannot impose a condition that such an amount has to be necessarily added in the bill. 33) Timings of the dance bars from 6:00 p.m. to 11:30 p.m. stipulated in Condition No. 9 of Part B is challenged on the ground that it does not serve any purpose. Moreover, discotheque or orchestra and liquor bars are allowed to be open till 01:30 a.m. 34) Similarly, argued the petitioners, Condition No.12 which prohibits serving alcoholic beverages in the dance bars is irrational. 35) Validity of Condition No.16 read with Rule 3(iii) is challenged on the ground that such a condition is again vague in nature inasmuch as the expression 'good character' and 'criminal record in the past' are not capable of any precise definition. He submitted that till the time there is no conviction, there....
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....ovisions mentioned above be made binding. It should be made binding on dance bars seeking new licenses to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft between the railing and sitting arrangement for customers." Mr. Bhushan, learned senior counsel would submit that regard being had to the suggestions noted in State of Maharashtra & Anr. vs. Indian Hotel and Restaurants Association & Ors. [(2013) 8 SCC 519, the railing of 3 ft. height can be put in praesenti subject to the further arguments to be canvassed at a later stage but there cannot be non-removable partition. Having heard learned counsel for the parties, we accept the submission of Mr. Bhushan, learned senior counsel and direct that there should be railing of 3 ft. height and not the non-removable partition. The railing is meant for creating barrier between the performers and the audience. Condition No.5 is to the following effect : "5) The licensee is permitted to keep only 04 dancers/artists to remain present on the permitted stage." It is submitted by Mr. Bhushan that he has no objection to the said condition but it may be clarified that other artists can remain present in the premi....
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.... learned counsel for the 5th respondent, we are inclined to modify the said condition to the extent that CCTV cameras shall be fixed at the entrance of the premises in question but shall not be fixed in the restaurant or the permit area or the performance area. As we have clarified the conditions, the modified conditions along with conditions on which there is no cavil shall be complied with within three days and the respondents shall issue the licences within ten days therefrom. We are sure, the authorities shall act in accordance with the command of this Court and not venture to deviate. Let the matter be listed after two weeks. Liberty to mention." 37) Condition No.20 was also challenged on the same ground referring to the same order dated March 02, 2016. 38) In addition, it was argued that requirement for having CCTV cameras at such places will have chilling effect, which was also violative of the right to privacy that is now declared as a fundamental right in K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1. 39) Mr. Nikhil Nayyar, learned counsel appearing for the writ petitioner in Writ Petition (Civil) No. 119 of 2017, submitted that the peti....
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....ickers, domestic helpers, etc.,). Many performers also belonged to marginalized and traditional dancing communities Bedia, Deredar, Kanjhar, Nat, Rajnat, etc.,) and other societies that have had a history of 'alternate' sexual morality. (See Dalwai, Sameena, 'Performing caste: the ban on bar dancing in Mumbai' Keele University (2012). 40) As with other professional artistes, and until the year 2004, the women performers have had complete freedom to choose which bars or restaurants to perform; day, time or duration of their performance; and had the bargaining capacity to negotiate remuneration with bar owners. In other words, the women performers were never the 'employees' of such establishments - either by virtue of a contract or under a statutory provision. As a matter of fact, many women performers do not expect any or adequate compensation from bar owners as it has been customary for performers to accept tips or rewards from patrons offered as a token of appreciation for their performance. This decades' old practice is akin to customary practices of Mujras, Lavani (traditional Marathi song and dance) or Tamasha (traditional Marathi theatre) who earn their living in the form of ....
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....trafficking or prostitution and other forms of flesh trade. However, the State Government has failed to produce any material - be it crime statistics or any other studies - in support. On the other hand, few available historical literature and research studies on bar dances suggest a diagonally opposite point of view. A study conducted by SNDT University, for instance, found that many women performers took up dancing to rehabilitate themselves from exploitative flesh trade. All the above social factors clearly suggest that the bar girls have voluntarily embraced dance bars to live with dignity and earn their livelihood. Moreover, the available literature further noted dance bars have had positive externalities on the women performers as it opened newer opportunities and the option to leave exploitative sex work if they chose. (ii) Non-obscene performances: In any event, this Court in Indian Hotel and Restaurants Association (1) and several other High Courts previously had categorically held that the performances in dance bars cannot be considered as 'obscene'. The Bombay High Court in State of Maharashtra v. Joyce Zee alias Temiko (1973) ILR 1299 (Bom), dealing with cabaret shows....
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....are hugely exaggerated. Having said that, there is certainly a grave necessity to improve working conditions of bar girls. However, the same can be achieved by strengthening the rights of thees women and organisations such as the petitioner-Union without the intervention from state apparatus. (v) Social Vulnerabilities: The prolonged ban on dance bars has had adverse effect on bar girls and women entertainers. After the ban, the RCWS & FAOW study pointed out that income of almost all women was reduced to less than 50% of their original earnings, and at least 1/4th of the women found their income slashed by 90% of their original earnings. At least 57.5% of the women reported having used all their savings in the form of jewellery, cash or property and at least 26% of these women have been forced to take additional loans, ranging between the amounts of couple of thousands to lakhs. The study further pointed that the access to health care and education of dancers and their families has reduced drastically. Moreover, the lack of social security has resulted in sexual harassment and also driven women to take up exploitative sex work. In this backdrop, and contrary to the stated objects....
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....provisions of the Act and the Rules. On Section 2(8) of the Act, his submission was that it is a provision which was utterly vague and creates a chilling effect; puts restrictions on dance which are excessive and disproportionate; and suffers from rigidity, overbreadth and manifest arbitrariness. Insofar as Section 8(4) of the Act, which prohibits offering tips by the customers to the performers is concerned, submission of Mr. Nayyar is that it is manifestly arbitrary and unreasonable inasmuch as this provision infuses criminalisation into and otherwise benign or harmless act and was contrary to well-recognised customary practice thereby suffering from manifest arbitrariness. 48) The learned counsel also laid attack on the legality of some of the licence conditions. His submission in this behalf was that the Grievance Redressal Committee constituted under Section 12 of the impugned Act is highly inadequate and disproportionate. The composition of the Committee, tasked with the duty to ensure proper conditions of service of women, does not contain any participation or representation of bar dancers in any manner. The composition of the Committee, as provided by Rule 10, is restricte....
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....levant - viz. "(c) decisional privacy which protects the right of citizens to make intimate choices about their rights from intrusion by 16 See Notification (bearing MSA. 07/2016/C.R. 218/Lab-10) issued by the State Government also placed on record before this Court in Writ Petition (Civil) No. 576 of 2016. the State; (d) proprietary privacy which relates to the protection of one's reputation." Given the societal stigma associated with dance bars, the monitoring, recording, storage and retention of dance performances causes unwarranted invasion of privacy and would even subject women performers to threat and blackmail. If the concerns are security, it can be adequately met having at the entrance. Hence, the complete surveillance of activities inside the premises is excessive and disproportionate. 54) Condition B(23) wherein the dance performances that maybe "expressive of any kind of obscenity, in any manner, even remotely" are prohibited is labelled by Mr. Nayyar as highly vague, excessive and creates a chilling effect on dancers. 55) Mr. Nayyar also supported his aforesaid arguments by citing various judgments which shall be taken note of and discussed at a later stage. 56) Re....
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....eals with eligibility criteria for grant of such licenses and submitted that the idea was to have stringent conditions to achieve the purpose behind the Act. 60) With this introductory remarks, Mr. Naphade dealt with individual provisions of the Act and the Rules in the following manner: Section 2(8) of the Act which defines 'obscene dance' was defended by arguing that it is not vague or contains imprecise definition as it includes a dance which is aimed at arousing the 'prurient interest' of the audience and where that is the only purpose behind a dance. He argued that the expression 'prurient interest' has a definite connotation in dictionary and this expression finds presence in Section 292 of the IPC as well which makes obscenity as an offence. Therefore, argued the learned senior counsel, it confirms to judicially manageable standards. Further submission in this behalf was that, no doubt, standards of morality have changed over a period of time, however, the moot question is, where to draw the line. This has to be left to the legislature. In the present case, legislature in its wisdom has considered particular types of dances as obscene which in the wisdom of legislature is....
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....free speech and expression. It is thus that books on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene. Section 292 of the Indian Penal Code deals with obscenity in this sense and cannot thus be said to be invalid in view of the second clause of Article 19. The next question is when can an object be said to be obscene? xx xx xx 28. This is where the law comes in. The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings. No doubt this is treating with sex by an artist and hence there is some poetry even in the ugliness of sex. But as Judge Hand said obscenity is a function of many variables. If by a series of descriptions of sexual encounters described in language which cannot be more candid, some social good might result to us there would be room for considering the book. But there is no other attraction in the book. As, J.B. Priestley said, "Very foolishly he tried to philosophi....
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.... parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: "... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was ....
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.... quite unclear what the provisions mean. This unacceptably large "grey area", common in laws restricting sexual material, would appear to result not from a lack of capacity or effort on the part of drafters or legislators. 26. The Penal Code on obscenity grew out of the English law, which made the court the guardian of public morals. It is important that where bodies exercise discretion, which may interfere in the enjoyment of constitutional rights, that discretion must be subject to adequate law. The effect of provisions granting broad discretionary regulatory powers is unforeseeable and they are open to arbitrary abuse. 27. In Samaresh Bose v. Amal Mitra [(1985) 4 SCC 289 : 1985 SCC (Cri) 523] it was observed by this Court: (SCC p. 314, para 29) "The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries. In our opinion, in judging the question of obscenity, the judge in the first place should try to place himself ....
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....tterley's Lover to be obscene, in England the jury acquitted the publishers finding that the publication did not fall foul of the obscenity test. This was heralded as a turning point in the fight for literary freedom in UK. Perhaps "community mores and standards" played a part in the Indian Supreme Court taking a different view from the English jury. The test has become somewhat outdated in the context of the internet age which has broken down traditional barriers and made publications from across the globe available with the click of a mouse. xx xx xx 70. In S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574] , while interpreting Article 19(2) this Court borrowed from the American test of clear and present danger and observed: (SCC pp. 595-96, para 45) "[The] commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, th....
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....se, argued Mr. Naphade, Section 8(2) is a separate offence prescribed in a separate law that is under the Maharashtra Act which is distinct from Section 292 IPC. 66) In respect of Section 8(4) of the Act which prescribes giving of tips to dancers, Mr. Naphade defended the same with the submission that it is a matter of cultural ethos of the society. Herein, when the purpose is to protect the dignity of women, such a prohibition would be justified. In this vein, his further argument in support of such a provision was that showering money is a method of inducement which has to be checked. In any case, such is the the perception of the State prompting the legislature to make a provision of this kind, which cannot be labelled as fanciful. Mr. Naphade also referred to Section 354A of IPC which has widened the scope of 'sexual harassment' and made it an offence. He submitted that it can be treated as moral code of the society. Therefore, Section 8(4) has to be judged through such a lens. In the alternative, he argued that principle of severability can always be applied and the provision should be saved by excising offending portions therefrom. 67) Rule 2(b) of the Rules which defines '....
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....er level by arguing that international trend is to frame the law based on morality. Such a noble purpose which this Act seeks to achieve cannot be countenanced. He paraphrased it with the following legal proposition: (i) Activity which has a criminal colour can always be regulated or even banned by the legislature. (ii) Principle of res extra commercium had to be kept in mind which lays down that there is no fundamental right in those economic activities which come under the aforesaid maxim. However, it is the State which still permits these activities and, therefore, State has every right to permit such an activity within a particular regulatory framework. It is that which was precisely done by the various provisions under the Acts and the Rules. (iii) Test of reasonableness is contextual and varies in different situations. It is based on proportionality. This test would be stricter where there is freedom of trade and such a stricter test is justified in the present context. 70) Ms. Pinky Anand, learned ASG, supported and adopted the aforesaid submissions of Mr. Naphade. She emphasised that the present Act was regulatory and not prohibitory in nature. Keeping in view this p....
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....hibition and Excise Department & Ors. v. K. Balu & Anr. (2017) 2 SCC 281 " 16. We are conscious of the fact that the policy of the Union Government to discontinue liquor vends on National highways may not eliminate drunken driving completely. A driver of a motor vehicle can acquire liquor even before the commencement of a journey or, during a journey at a place other than a national or State highway. The law on preventing drunken driving also requires proper enforcement. Having said this, the Court must accept the policy of the Union Government for more than one reason. First and foremost, it is trite law that in matters of policy, in this case a policy on safety, the Court will defer to and accept a considered view formed by an expert body. Second, as we have seen, this view of the Union Government is based on statistics and data which make out a consistent pattern year after year. Third, the existence of liquor vends on highways presents a potent source for easy availability of alcohol. The existence of liquor vends, advertisements and signboards drawing attention to the availability of liquor coupled with the arduous drives particularly in heavy vehicles makes it abundantly ne....
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....l or general order, specify in this behalf. 72) Two features of these provisions may be noted: (i) In the first place, there was absolute prohibition of dance performances in the establishments covered by Section 33A. Such dance performances were treated, per se, obscene. In contrast, the present regime prohibits 'obscene dance' and defines this term as well. (ii) In contrast, in the establishments covered by Section 33B, there was no bar on such performances. 73) Striking down the provisions of Section 33A as discriminatory, the Court held that there was no reasonable basis for any classification between those places where such performance of dance was prohibited under Section 33A and those places where such a performance was permitted as specified in Section 33B of the Maharashtra Police Act. Discussion in this behalf is contained, more specifically, in paras 118 to 122 of the judgment which have already been reproduced above. That reason may not apply to the impugned Act and Rules herein inasmuch as no such distinction is made now. At the same time, some of the discussion from this judgment would be relevant. The Court also held that Section 33A offended Article 19(1)(a) o....
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....er the Bombay Police Act have been framed in the interest of public safety and social welfare and to safeguard the dignity of women as well as to 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 as the Statement of Objects and Reasons. (f) Argument of the State that 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 the problem of ever increasing dance bars, was specifically rejected. (g) The Court also mentioned the effect of Section 33A in the following words: "136. The end result of the prohibition of any form of dancing in the establishments covered under Section 33-A 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 been 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 th....
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....ct and the Rules, validity whereof is questioned in these petitions. As a matter of fact, we may point out at this juncture itself, that not a single establishment is given any licence so far under Section 3 of the impugned Act. This was candid statement made by Mr. Naphade at the bar. It shows that some of the conditions and restrictions imposed by the Act and the Rules are such which are impossible to perform and, therefore, in each and every case, without exception, the applications for grant of licence under this Act have been rejected. 75) We would like to deal at this stage with the argument of morality, as advanced by by Mr. Naphade. The question is to what extent the State can go in imposing 'morality' on its citizens? In the first instance, we would take note of certain judgments of this Court touching upon this aspect. Following discussion in State of Punjab & Anr. v. Devans Modern Breweries Ltd. & Anr. (2004) 11 SCC 26 may be relevant in this behalf: "48. Dealing in a commodity which is governed by a statute cannot be said to be inherently noxious and pernicious. A society cannot condemn a business nor there exists a presumption in this behalf if such business i....
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....been permitted to do so by the State in compliance with the provisions of the existing laws, indisputably he acquires a right to carry on business. Even in respect to trade in food articles or other essential commodities either complete prohibition or restrictions are imposed in the matter of carrying on any trade or business, except in terms of a licence granted in that behalf by the authorities specified in that behalf. The distinction between a trade or business being carried out legally or illegally having regard to the restrictions imposed by a statute would have, therefore, to be judged by the fact as to whether such business is being carried out in compliance with the provisions of the statute(s) operating in the field or not. In other words, so long it is not made impermissible to carry on such business by reason of a statute, no crime can be said to have been committed in relation thereto. The doctrine of res extra commercium, thus, would not be attracted, whence a person carries on business under a licence granted in terms of the provisions of the regulatory statutes. xx xx xx 317. The matter is covered by statutory provisions. The court cannot interpret equality, fre....
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....l change is a subtle, but dynamic, factor in social analysis. It cannot be denied that dance performances, in dignified forms, are socially acceptable and nobody takes exceptions to the same. On the other hand, obscenity is treated as immoral. Therefore, obscene dance performance may not be acceptable and the State can pass a law prohibiting obscene dances. However, a practice which may not be immoral by societal standards cannot be thrusted upon the society as immoral by the State with its own notion of morality and thereby exercise 'social control'. Furthermore, and in any case, any legislation of this nature has to pass the muster of constitutional provisions as well. We have examined the issues raised in the aforesaid context. 78) This brings us to the Principle of res extra commercium. Insofar as dance performances are concerned, it has already been held that it is not res extra commercium. We would, at this stage, again refer to Indian Hotel and Restaurants Association (1) where these aspects are dealt with as under: (i) Human Trafficking: The State Government contended that several women performers are victims of illegal trafficking, or minors, and dance bars are used for....
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....insufficiency of the existing regulatory framework. 79) Keeping in mind the aforesaid principles, we advert to the specific provisions. Re: Section 2(8)(i) of the Act 80) Section 2(8) defines obscene dance. In the main body, it states that any dance which comes within the meaning of Section 294 of IPC and any other law for time being in force, shall be treated as 'obscene dance'. To this extent, there is no quarrel. The argument is that the definition of obscene dance is expanded beyond Section 294 of the IPC by specifically including following forms of dance: "2(8)(i) which is designed only to arouse the prurient interest of the audience; and (ii) which consists of a sexual act, lascivious movements, gestures for the purpose of sexual propositioning or indicating the availability of sexual access to the dancer, or in the course of which, the dancer exposes his or her genitals or, if a female, is topless;" 81) Insofar as clause (ii) is concerned, it is a reflection of Section 294 of IPC. Therefore, the petitioners have not taken any exception to this provision. The grievance is on the inclusion of clause (i). The submission is that the expression 'arouse the prurient intere....
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....als was of the view that neither Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), nor later cases should be read to include within the definition of obscenity those materials that appeal to only normal sexual appetites. Roth held that the protection of the First Amendment did not extend to obscene speech, which was to be identified by inquiring "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."Id., at 489, 77 S.Ct., at 1311 (footnote omitted). Earlier in its opinion, id., at 487, n. 20, 77 S.Ct., at 1310, n. 20, the Court had defined "material which deals with sex in a manner appealing to prurient interest" as: "I.e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows: " '. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd. . . .' "Pruriency is defined, in pertinent part, as follows: " '. . . Quality of being pruri....
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....113 F.2d 729, 736 (1940) (material is protected if "the erotic matter is not introduced to promote lust"); United States v. Dennett, 39 F.2d 564, 569 (CA2 1930) (sex education pamphlet not obscene because tendency is to "rationalize and dignify [sex] emotions rather than to arouse lust"); United States v. One Book Called "Ulysses," 5 F.Supp. 182, 184 (SDNY 1933), aff'd, 72 F.2d 705 (CA2 1934) (meaning of the word "obscene" is "[t]ending to stir the sex impulses or to lead to sexually impure and lustful thoughts"); Commonwealth v. Isenstadt, 318 Mass. 543, 549-550, 62 N.E.2d 840, 844 (1945) (material is obscene if it has "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire"); Missouri v. Becker, 364 Mo. 1079, 1085, 272 S.W.2d 283, 286 (1954) (materials are obscene if they "incite lascivious thoughts, arouse lustful desire"); Adams Theatre Co. v. Keenan, 12 N.J. 267, 272, 96 A.2d 519, 521 (1953) (BRENNAN, J.) (question is whether "dominant note of the presentation is erotic allurement 'tending to excite lustful and lecherous desire' ").] It would require more than the possible ambiguity in footnote 20 to lead....
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....n Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43 considered the question: When can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against venereal depravity. Thus, nowhere it is challenged as a vague term, incapable of precise definition. 89) It, therefore, cannot be said that a dance which is aimed at arousing the prurient interest of the audience is vague term, incapable of definite connotation. It is, more so, when Section 292 IPC particularly uses this expression in the deeming provision relating to obscenity. Re: Whether Section 6(4) of the Act is violative of equality clause enshrined in Article 19(1) of the Constitution? 90) This provision forbids grant of licence for discotheque or orchestra where licence under this Act is granted. Conversely it also forbids grant of licence under this Act for the place for which a licence for discotheque or orchestra has been granted. It means that in respect of a particular place, a licence would be granted either for dance bars or for discotheque/orchestra and not for both purposes. Submission is that there is no rationale for such a provision. The reply given by the respondents is that ....
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....with both." 92) Challenge to the validity of Section 8(2) of the Act, therefore, fails. Re: Whether Section 8(4) of the Act is arbitrary and violative of Article 14? 93) This provision is to be read with condition Nos. 6, 7 and 8 of Part B. It makes throwing or showering coins, currency notes or any article or anything which can be monetized on the stage or handing over personally such notes, to a dancer is banned and treated as an offence. Further stipulation in these provisions is that any tip to be given should be added in the bill only and is not to be given to the performers etc. The justification given by the State is that showering of money etc. is a method of inducement which has to be curbed keeping in view that Act aims to protect the dignity of women. According to the respondents, Section 354A of IPC which is a moral code of the society and the State is only attempting to preserve this moral code by enacting such a provision. We are of the opinion that insofar as throwing or showering coins, currency notes etc. is concerned, the provision is well justified as it aims at checking any untoward incident as the aforesaid Act has tendency to create a situation of indecency....
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.... set aside, with liberty as aforesaid. 96) Adverting to Condition No. 2 of Part A of general conditions (GOC), it can be dissected as under: (i) Size of stage in the bar room should not be less than 10 feet x 12 feet. There is no objection to this. (ii) It further stipulates that the stage in bar room has to be with non-transparent partition between hotel, restaurant and bar room area. In essence, it segregates bar room area from hotel and restaurant. (iii) Fixed partition is prescribed between permit room and dance room. 97) It is this part which is taken exception of by the petitioners. We find that on an earlier occasion, similar condition was struck down by this Court. Even otherwise, we do not find any rationality or justification in imposing such a condition which appears to be quite unreasonable and there cannot be any rationale in this provision having regard to any objective sought to be achieved. Therefore, this provision is struck down. 98) As far as condition No.11 of Part A is concerned which stipulates that the place where dance is to be performed shall be at least 1 km away from the educational and religious institutions, the petitioners are right in their s....
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....from monetizing dances other than by way of receiving salary or shared tips. More importantly, the State Government has failed to show any compelling public interest to curtail the choices of women performers. We find substance in the aforesaid submission and, therefore, set aside this part of Condition No. 2. We make it clear that the provisions for written contract, deposit of the remuneration in the bank accounts of the employee as well as submission of these written contracts with the licensing authority are appropriate. Rest of the provision is struck down. 100) Adverting to the condition No. 9 of Part B which prescribes timing of such dance performances only between 6 pm to 11:30 pm, we do not find it to be manifestly unreasonable. Merely because establishments are otherwise open until 1:30 am (next day) or 12:30 am (next day) does not mean that the State has no power to restrict the time of dance performances till 11:30 pm. Even a period of 6 pm to 11:30 pm for dance performances is quite sufficient and substantial as it allows 5½ hours of such performances. We, therefore, uphold this condition. 101) Condition No. 12 of Part B prescribes serving of alcohol in the ba....
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....the respondents have somehow developed the notion that such performances in the dance bars do not have moralistic basis. Initially the law was passed in the year 2005 by inserting Sections 33A and 33B in the Maharashtra Police Act, 1951. At that time, by the said amendment, State desired total prohibition on the performance of dance in eating house, permit room or bear bar on the premise that such performances are always indecent, obscene or vulgar. It was also on the notion that such performances were giving rise to exploitation of women as well. However, while upholding the decision of the High Court declaring Section 33A of Maharashtra Police Act, 1951 to be unconstitutional, this Court found and specifically held that there was no material or empirical data in the aforesaid perception garnered by the State. This Court also held that the impugned provision did not pass the muster of constitutional provisions as it was found to be violative of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. The Court also categorically observed that there were enough statutory provisions in number of Acts and Rules (which are stipulated in Paras 127 to 131 of the said judgment). 104) The....