AI Drafter 
TaxTMI 
TaxTMI 
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2019 (1) TMI 1783
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....e 'Rules') which, as the Petitioners submit, violate 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 responden....
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....eps to prevent inconvenience etc. to residents or passers-by or for 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.....
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....d to improve the conditions of work, protect the dignity and safety of women 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; (1....
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....upees twenty-five lakhs, or with both; and in case of continuing offence, further fine of rupees twenty-five thousand for each day during which the offence continues. (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 co....
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....istory of criminal record in the past: Provided that, the licensing authority shall consider the history of criminal record of the applicant upto ten years before the date of application; and (iv) complies with the conditions specified 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. x....
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....herwise, the reasoning contained in the said judgment on the basis of which the aforesaid provisions were struck down was heavily relied upon by the petitioners. 18) Indian Hotel and Restaurants Association (1) As already noted above, any person intending to start an eating house and restaurant is required to have certain licenses under 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....
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....ishment 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. 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 eat....
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....of this section, 'sports club' or 'gymkhana' means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force." 19) It is the validity of these provisions which was the subject matter of the appeals before the Supreme Court as Bombay High Court had declared these provisions as unconstitutional, being 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 ....
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....resent case, there was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality or morals. 119. 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 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 e....
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....dly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty-bound to disclose the reasons for the ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so-called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counterparts 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 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 ....
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.... SCC 248] .) We see no reason to differ with the conclusions recorded by the High Court. We agree with Mr Rohatgi and Dr Dhavan that there are already sufficient rules and regulations and legislation in place which, if efficiently applied, would control if not eradicate all the dangers to the society enumerated in the Preamble and the Statement of Objects and Reasons of the impugned legislation. 127. The activities of the eating houses, permit rooms and beer bars are controlled by the following regulations: (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....
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....y of women. The provisions of the Bombay Police Act, 1951 and more particularly Section 33(1)(w) of the said Act empowers the licensing authority to frame rules: "licensing or controlling places of public amusement or entertainment and also for taking necessary steps to prevent inconvenience to residents or passers-by or for maintaining public safety and for taking necessary steps in the interests of public order, decency and morality." 131. Rules 122 and 123 of the Amusement Rules, 1960 also prescribe conditions for holding performances: "122.Acts prohibited by the holder of a performance licence.-No person holding a performance licence under these Rules shall, in the beginning, during any interval 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 ....
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....trol the situation in spite of the existence of all the necessary legislation, rules and regulations. One of the submissions made on behalf of the appellants was to the effect that it is possible to control the performances which are conducted in the establishments falling within Section 33-B; the reasons advanced for the aforesaid only highlight the stereotype myths that people in upper strata of society behave in orderly and moralistic manner. There is no independent empirical material to show that propensity of immorality or depravity would be any less in these high-class establishments. On the other hand, it is the specific submission of the appellants that the activities conducted within the establishments covered under Section 33-A have the effect of vitiating the atmosphere 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. Chamarba....
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....not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the licensing/regulatory authorities in implementing the legislation. 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 them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter-productive and cannot be sustained being ultra vires Article 19(1)(g)." 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 ....
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.... has been made for grant of licence even under the new Act and Rules. 24) Mr. Bhushan specifically referred to the following passage from the earlier judgment wherein plea of public interest or morality was repelled: "53. With regard as to whether there is any infringement of rights under Article 19(1)(g), it is submitted by the learned Senior Counsel that the fundamental right under Article 19(1)(g) to practise any profession, trade or occupation is subject to restrictions in Article 19(6). Therefore, by prohibiting dancing under Section 33-A, no right of the bar owners are being infringed. The curbs imposed by Sections 33-A and 33-B 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 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 "in....
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.... to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of attempt to sustain the validity/constitutionality of the enactment. After all, an Act made by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void." xx xx xx 85. Mr Rohatgi submits that the impugned legislation has achieved the opposite result. Instead of creating fresh job opportunities for women it takes away whatever job opportunities are already available to them. He emphasised 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....
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....e or orchestra is granted. Conversely, it also prohibits grant of licence for discotheque or orchestra where licence under this Act is granted. Simply put, the purport behind this provision is to see that in respect of a particular place either licence is granted for dance bars or for discotheque and orchestra and there would not be a licence for a place, both for dance bars and discotheque or orchestra, at the same time. It was submitted that there was no rational behind such a provision based on intelligible differentia. Reference was made to the judgment in M.P. AIT Permit Owners Assn. and Another v. State of M.P. (2004) 1 SCC 320, which was relied upon in the subsequent judgment in Engineering Kamgar Union v. Electro Steels Castings Ltd. and Another (2004) 6 SCC 36 wherein it was held as under: "21. The Central Act and the State Act indisputably cover the same field. The jurisdiction 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 unamb....
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....to tipping her on appreciation of her performance which was the same thing as appreciating a singer for her performance or a waitress for her service and there was absolutely nothing wrong about it and such an act cannot be made an offence. It was, according to him, manifestly arbitrary and violative of Article 14. The learned senior counsel relied upon the following averments in Nikesh Tarachand Shah v. Union of India and Another (2018) 11 SCC 1: "23. Insofar as "manifest arbitrariness" is concerned, it is important to advert to the majority judgment of this Court in Shayara Bano v. Union of India [Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] . The majority, in an exhaustive review of case law under Article 14, which dealt with legislation being struck down on the ground that it is manifestly arbitrary, has observed: (SCC pp. 91-92 & 99, paras 87 & 101) "87. The thread 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 ....
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....th Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248]. Thus, in Rajesh Kumar [Rajesh Kumar v. State, (2011) 13 SCC 706 : (2012) 2 SCC (Cri) 836] at pp. 724-26, this Court held: (SCC paras 56-63) " 56. Article 21 as enacted in our Constitution reads as under: '21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.' 57. But this Court in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] held that in view of the expanded interpretation of Article 21 in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , it should read as follows: (Bachan Singh case [Bachan 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 ....
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.... Sunil Batra [Sunil Batra v. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] speaking through Krishna Iyer, J. held: (Sunil Batra case [Sunil Batra v. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC p. 518, para 52) '52. True, our Constitution has no "due process" clause or the Eighth Amendment; but, in this branch of law, after Cooper [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , the consequence is the same.' 60. The Eighth Amendment (1791) to the Constitution of the United States virtually emanated from the English Bill of Rights (1689). The text of the Eighth Amendment reads, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". The English Bill of Rights drafted a century ago postulates, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments 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] jurisprudentiall....
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....this provision. 30) Attacking the validity of Rule 3 of the Rules, he submitted that Condition No.2 contained in Part A of the Schedule attached to these Rules is contrary to the judgment in Indian Hotel and Restaurants Association (1). He also submitted that distance of 1 k.m. of such dance bars from the educational and religious institutions, as stipulated in Condition No.11 of Part A of the Schedule, was illogical and impractical. According to him, it was, in fact, an impossible condition to be fulfilled in a congested city like Mumbai where educational and religious institutions existed within 1 k.m. from each and every building. He pointed out that for the Bars under liquor Rules, distance prescribed is 75 mts., which was reasonable and valid provision and could be incorporated here as well. 31) Insofar as Condition No.2 contained in Part B of the Schedule is concerned, it is challenged on the ground that under the guise of this condition the respondent wanted that employment of the bar dancers in 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 ta....
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....he intention of the Excise Department behind incorporation of the said condition is to keep the permit room area separate from the restaurant area where alcohol is not served. Be it noted, the said condition has been modified to the following extent : "This licence is valid for only one stage of 10 ft. x 12 ft. size in restaurant area/permit room as per approved plan of the Excise Department for F.L.-III with non transparent partition between restaurant and permit room area." The said condition is accepted by the petitioners and, therefore, we shall not dwell upon the same. As far as the condition no.2 is concerned, it reads as follows: "2) The stage should cover from all sides by a non removable partition of 3 ft. height." In the affidavit filed by the State, the said condition has been modified as follows : "(2) There shall 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 which have secured licenses earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licenses to have r....
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....llows : "12) The Licensee shall ensure that no concealed cavity or a room is created within the premises in order to conceal performers/staff." Mr. Bhushan, learned senior counsel submitted that he has no objection to the said condition but there should be a room which can be utilised as a green room. We so direct. Be it clarified, green room means green room in the manner in which it is understood in the classical sense. Condition no. 15 on which the parties are at real cavil reads as follows : "15)The Licensee shall ensure that adequate number of CCTV cameras which will live feed continuously to police control room be installed to cover the entire premises which will record the entire daily performance and the same will be monitored by a specially appointed person on a monitor/display. The daily recording of performance of last 30 days would preserved and will be made available to any competent authority as and when required for viewing." Having heard learned counsel for the parties, Dr. Rajeev Dhawan, learned senior counsel, who sought permission to file an application for intervention and Mr. Sandeep Deshmukh, learned counsel for the 5th respondent, w....
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.... have allowed them to break-away from stigmatic hereditary or caste profession. Some of the key findings of these studies are as follows: (i) Nearly 82.6% of women performers (out of the sample size of 500) surveyed in Mumbai were migrants, and forced to leave their homes due to 'poverty and destitution' and for 'seeking a better life for themselves and their dependents'(See Feminist Contributions from the Margins: Shifting Conceptions of Work and Performance of the Bar Dancers of Mumbai XLV Econ. & Pol. Weekly (48) 2010). (ii) Another study found that 42% of women dancers (out of 800) were the only breadwinners in their family. Most of them lacked basic education or technical skills. Some of them were previously engaged in sex work, but turned towards dance bars to lead a dignified life with safer working conditions. (See RCWS (SNDT University, Mumbai), 'Working Women in Mumbai Bars: Truths behind the controversy' (Jul' 2005); RCWS (SNDT University, Mumbai), 'After the Ban - Women Working in Dance Bars' (Dec' 2006). (iii) Another ethnographic study has shown that a vast majority of women performers worked in exploitative or constricted environment (viz.,....
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....Rules is concerned, this petition challenges some of the provisions which are also the subject matter of challenge in Writ Petition (Civil) No. 576 of 2016, on which we have noted the arguments of Mr. Jayant Bhushan, learned senior counsel. Adopting those arguments, Mr. Nayyar also made some additional submissions which are as under: In the first place, the learned counsel took support of the legal principles settled in the judgment of this Court in Indian Hotel and Restaurants Association (1). He argued that in that case the Court considered the rational offered by the State Government threadbare and found no basis or justification for imposition of prohibition. 44) He submitted that the present Act and rules were nothing but old wine in a new bottle with same kind of provisions which have already been struck down in Indian Hotel and Restaurants Association (1). In addition, the argument of Mr. Nayyar was that the moral anxiety and the reasons advanced by the State Government for introducing the legislation are entirely irrational and without demonstrable proof or evidence. Illustratively: (I) Social Profile of Bar girls: It has been claimed that bar girls are....
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....also outdated. Be that as it may, the very reasons proclaimed by the State Government currently (have been considered and rejected by this Court in Indian Hotel and Restaurants Association (1) for the lack of cogent evidence. Therefore, the belief of the State Government that the working women in dance bars are involved in immoral activities such as prostitution, or that minors are being employed, are entirely baseless and irrational. (iv) Conditions of work: The concerns of the State Government that women dancers are subjected to unsafe and exploitative working conditions is entirely false. Various studies indicate that many bar girls felt 'greater security in the bars due to the support network among the dancers as well as the protection provided by the owners'. It was further noted that the bar owners, on the demands made by bar girls, provides taxis and auto rickshaws for women travelling late at night. Although bar girls worked under the constant gaze of bar owners, they are neither contractually employed nor subservient to them. Few other performers have also expressed complete freedom to shift from one dance bar to another at their will. Therefore, the claims that t....
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....l. 45) He further submitted that onus was on the State to justify fairness and reasonableness which is the principle of law laid down in the case of Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors. (1959) SCR 279, State of Maharashtra & Anr. v. Basantibai Mohanlal Khetan & Ors. (1986) 2 SCC 516 and M/s Laxmi Khandsari & Ors. v. State of U.P. & Ors. (1981) 2 SCC 600. According to him, the State has not discharged this onus. 46) Mr. Nayyar also made detailed submissions on the standards of 'obscenity' which prevail in this country as per the parameters laid down in various judgments and the development of law on this subject. In this hue, he also argued that public policy or general public interest cannot be valid grounds to restrict freedom of speech under Article 19(1)(a) of the Constitution. Neither majoritarian or societal notions formed the basis to restrict such a fundamental right. According to him, on the contrary, constitutional values of personal autonomy and individual choices which have been held to be the facets of right to privacy, giving it the status of fundamental rights, had to be respected. His plea was that the impugned legislation and rules viol....
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....is irrational. 51) Condition B(9) wherein the dance performances are restricted to 6:00 pm to 11:30 pm is challenged as unreasonable and manifestly arbitrary. It is irrational and manifestly arbitrary to prohibit dances after 11:30 pm, when the establishments can be open until 01:30 am (next day) or 12:30 am (next day), as the case may be 16. 52) According to him, condition B(12) wherein the bar owners are prohibited from serving of any alcoholic beverage at areas where dances are staged is disproportionate and manifestly arbitrary. The State Government has failed to provide any cogent material or demonstrate any reasonable basis which warrants interference of this nature. As such, the restriction is excessive and disproportionate consider other licence conditions (distance, railing, green room, age restrictions, etc.,) to prevent any untoward incident. 53) Validity of Section B(20) wherein the mandate to install CCTV cameras to maintain complete surveillance and recording of activities in such places is questioned as excessive, causes unwarranted invasion of privacy and violative of Articles 19(1)(a) and 21. In support, he referred to para 247(3) of K.S. Puttaswamy and An....
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....f women dancers and other women working therein; and (c) protect the dignity as well as safety of such women. 59) He emphasised that moral structure of the Act flows from the aforesaid preamble. According to him, it could not be disputed by anybody, nor was it done by the petitioners, that the aforesaid objectives were lawful and in larger public interest, particularly in the interest of women working at such places. Proceeding on that basis, Mr. Naphade submitted that insofar as controlling the activity through licensing is concerned, the same is accepted by the petitioners as well. Section 3 of the Act which mandates obtaining a licence for starting a hotel, restaurant, bar room or any other place where dances are staged, has not been challenged. This is core of the Act. Further, there is no challenge to Section 14 which gives power to the State Government to make rules in furtherance of the objectives i.e. to carry out the purpose of the Act. It was also not the case of the petitioners that the impugned Act or Rules framed thereunder were ultra vires and not within the competence of the State legislature insofar as the Act is concerned or the State Government insofar....
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....is the interest of public decency and morality. Section 292 of the Indian Penal Code manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality. The word obscenity is really not vague because it is a word which is well understood even if persons differ in their attitude to what is obscene and what is not. Lawrence thought James Joyce's Ulysees to be an obscene book deserving suppression but it was legalised and he considered Jane Eyre to be pornographic but very few people will agree with him. 9. The former he thought so because it dealt with the excretory functions and the latter because it dealt with sex repression. (See Sex, Literaturet Censorship pp. 26, 201). Condemnation of obscenity depends as much upon the mores of the people as upon the individual. It is always a question of degree or as the lawyers are accustomed to say, of where the line is to be drawn. It is, however, clear that obscenity by itself has extremely poor value in the propagation of ideas, opinions and informations of public interest or profit. When there is propagation of ideas,....
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.... of the book then diminishes and it leaves no permanent impression. The poetry and music which Lawrence attempted to put into sex apparently cannot sustain it long and without them the book is nothing. The promptings of the unconscious particularly in the region of sex is suggested as the message in the book. But it is not easy for the ordinary reader to find it. The Machine Age and its impact on social life which is its secondary theme does not interest the reader for whose protection, as we said, the law has been framed." 61) Mr. Naphade submitted that this position has not undergone any change by the judgments of this Court rendered thereafter. Thus, the test to be applied is as to whether a particular dance performance has tendency to deprave and corrupt by immoral influences. According to him, in a given case, this test/standard can always be applied by the Court to determine whether a particular dance performance is obscene or not. Mr. Naphade also relied upon the judgment in the case of Pawan Kumar v. State of Haryana & Anr. (1996) 4 SCC 17 where the expression 'moral turpitude' is defined by judiciary fixing standards of morality by linking it with obscenity and it comes....
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....ts of the policy decision above-quoted." 62) Mr. Naphade also banked upon the following discussion in Director General, Directorate General of Doordarshan & Ors. v. Anand Patwardhan & Anr. (2006) 8 SCC 433: "22. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and ideas. The Constitution guarantees freedom of expression but in Article 19(2) it also makes it clear that the State may impose reasonable restriction in the interest of public decency and morality. 23. The crucial question therefore, is, "what is obscenity?" The law relating to obscenity is laid down in Section 292 of the Penal Code, which came about by Act 36 of 1969. 24. Under the present Section 292 and Section 293 of the Penal Code, there is a danger of publication meant for public good or for bona fide purpose of science, literature, art or any other branch of learning being declared as obscene literature as there is no specific provision in the Act for exempting them from operations of those secti....
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....is essentially deposits on the Supreme Court of India, the responsibility to define obscenity and classify matters coming on media as obscene or otherwise. This Court has time and again adopted the test of obscenity laid down by Cockburn, C.J. The test of obscenity is, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and in whose hands a publication in media of this sort may fall. xx xx xx 37. In yet another case of Ramesh v. Union of India [(1988) 1 SCC 668 : 1988 SCC (Cri) 266] this Court has observed that: (SCC p. 676, para 13) "... that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book. It is the standard of ordinary reasonable man or as they say in English law 'the man on the top of Clapham omnibus'." 63) Another judgment, sustenance wherefrom was drawn by the learned senior counsel is Ajay Go....
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.... used to try to suppress or control materials that are obscene under these definitions. 76. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand, the Constitution of India guarantees the right to freedom of speech and expression to every citizen. This right will encompass an individual's take on any issue. However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society." 64) Insofar as Section 6(4) of the Act is concerned, plea of Mr. Naphade was that idea was to impose stringent licence conditions for dance bars in order to avoid any possibility of obscene dance and that was a rationale for keeping place of dance away from the place where there is a discotheque or orchestra. 65) Qua Section 8(2), justification of the learned senior counsel was that this provision is to be read along with Section 8(1) of the A....
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....itated. In this behalf, he referred to clause (2) of Article 19 as per which reasonable restriction can be imposed inter alia in the interest of 'public order, decency or morality'. Therefore, morality aspects had to be taken into consideration while adjudging the validity of these provisions, argued the learned senior counsel. On the same lines, Mr. Naphade also tried to meet the argument based on Article 19(1)(g) of the Constitution by taking shelter under clause (6) of Article 19 which permits the State to make law imposing reasonable restrictions in the interest of general public. 69) With respect to Schedule under Rule 3, Mr. Naphade's defence of Condition No. 2 thereof was that it ensures safety. Likewise, Condition No. 11 of Part A is a matter of policy and it is the prerogative of the law maker to fix the distance. Regarding Condition No. 2 of Part B, submission of the learned senior counsel was that it is based on economic reality that there is an exploitation of such working clause and, therefore, the rule maker rightly laid down the condition that the working women must be employed under a written contract on a monthly salary which needs to be deposited in their bank ....
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.... contention that those activities which encourage a spirit of recklesss propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject-matter of a fundamental right guaranteed by Article 19(1)(g). We find it difficult to persuade ourselves that gambling was ever intended to form any part of this ancient country's trade, commerce or intercourse to be declared as free under Article 301. It is not our purpose nor is it necessary for us in deciding this case to attempt an exhaustive definition of the word "trade", "business", or "intercourse". We are, however, clearly of opinion that whatever else may or may not be regarded as falling within the meaning of these words, gambling cannot certainly be taken as one of them. We are convinced and satisfied that the real purpose of Articles 19(1)(g) and 301 ....
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....e of dances in eating houses, permit rooms or bear bars in an indecent manner. It noted that such places to whom licenses to hold dance performance were granted, were permitting the performance of dances in an indecent, obscene and vulgar manner. Further, such performance of dances were giving rise to exploitation of women and were derogatory to the dignity of women. They were also likely to deprave, corrupt or injure the public morality or morals. Because of these reasons, the Government of Maharashtra considered it expedient to prohibit altogether the holding of such dance performances in eating houses or permit rooms or bear bars. To achieve this purpose, Section 33A prohibits holding of the performance of dance, of any kind or type, in any eating house, permit room or bear bar. To make this prohibition effective, all such licenses given earlier were cancelled by the said statutory provision. Holding of such performances was also made a punishable offence. At the same time, Section 33B provided exception to Section 33A inasmuch as Section 33A was made inapplicable in certain cases. As per Section 33B, provisions of Section 33A was not to apply to the holding of the dance perform....
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....ngs in PRAYAS and Shubhada Chaukar's Reports. (b) Argument of the State to justify the provision based on intelligible differentia, viz., that women who perform in the banned establishment come from grossly deprived backgrounds and are a vulnerable lot who are trafficked into bar dancing, was specifically rejected by pointing out that there was no material/evidence to support such a plea. Nothing in this behalf was stated in the Statement of Objects and Reasons and this plea was projected for the first time in the affidavit filed before the High Court. The Court, in the process, held that such a plea was based on PRAYAS and Shubhada Chaukar's Reports. In the opinion of the Court, isolated examples given therein would not be sufficient to establish the connection of dance bars covered under Section 33A with trafficking. (c) Performance of dance in such places could not be covered by the principle of res extra commercium. Prohibition on such a commercial activity, which was a fundamental right, had to meet the test of 'reasonable restriction'. However, held the Court, the State had failed to establish that the restriction is reasonable or that it is in the i....
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....es not carve out two categories of such places unlike Sections 33A and 33B of the Maharashtra Police Act. In that sense, argument of discrimination based on creating two classes without any reasonable basis, is not available, nor was it argued. It also cannot be denied that the aforesaid objectives are in general public interest inasmuch as nobody can argue that there should not be any prohibition of dances which are obscene, nor can it be argued that suitable provisions should not be made to protect the dignity and safety of women in such places with a view to prevent their exploitation. It is for this reason that the petitioners have not questioned the validity of the Act and the Rules framed therein, in their entirety. Instead, they feel aggrieved by certain provisions which, according to them, are unreasonable and have the effect of putting a complete prohibition on any type of dance performances, even if they are not obscene. They have also argued that the conditions and restrictions which are imposed by the Act and the Rules for obtaining a licence under the said Act are so severe and impossible to perform, with the result no person would be able to obtain a licence under thi....
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....atory statutes are enacted in conformity with clause (6) of Article 19 of the Constitution to deal with those trades also which are inherently noxious and pernicious in nature; and furthermore, thereby sufficient measures are to be taken in relation to health, safety and welfare of the general public. The courts while interpreting a statute would not take recourse to such interpretation whereby a person can be said to have committed a crime although the same is not a crime in terms of the statutory enactment. Whether dealing in a commodity by a person constitutes a crime or not can only be the subject-matter of a statutory enactment. xx xx xx 51. From the analysis of decisions rendered by this Court in Cooverjee B. Bharucha [AIR 1954 SC 220 : 1954 SCR 873], R.M.D. Chamarbaugwala [AIR 1957 SC 699 : 1957 SCR 874], Har Shankar [(1975) 1 SCC 737 : AIR 1975 SC 1121 : (1975) 3 SCR 254] or Khoday Distilleries [(1995) 1 SCC 574] it will appear that a person cannot claim any right to deal in any obnoxious substance on the ground of public morality. The State, therefore, is entitled to completely prohibit any trade or commerce in potable liquor. Such prohibition, however, h....
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.... important countervailing interest is shown to be superior. If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest test. Then the question would be whether a State interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible State interest, the characterization of a claimed right as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a State interest sufficient to justify the infringement of a fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of State." Some of the moral aspects are discussed in the context of obscenity in the judgments cited by Mr. Naphade as well. 77) It needs to be borne in mind that there may be certain activities which the society perceives as immoral per se. It may include gambling (though that is also becoming a debatable issue n....
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....ed 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 covemred 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." (emphasis added) (ii) Injury to Public Morals: TheCourt categorically rejected the contention that the dance bars affect or cause harm to public morale. In pertinent part, this Court stated that: "120. ..In our opinion, the State neither had the empirical data to conclude that dancing in the prohibited establishment necessarily leads to depravity and corruption of public morals nor was there general consensus that such was the situation..." (iii) Res Extra Commercium: The State Government contended that the dance performances in suc....
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....n the IPC which also makes obscene books etc. (Section 292 IPC) as well as obscene acts and songs (Section 294 IPC) as punishable offences. 82) Concise Oxford Dictionary (Tenth Edition, revised) defines the term 'prurient' as under: "Prurient - adj. Having or encouraging an excessive interest in sexual matters. - Derivatives prurience n. pruriency n. pruriently adv. - origin C16 (in the sense 'having a craving'): from L. prurient-, prurire 'itch, long, be wanton'." 83) Other dictionary meanings given to this expression are: "(i) Characterised by an inordinate interest in sex; prurient thoughts. When arousing or appealing to an inordinate interest in sex; prurient literature. (ii) Inordinately interested in matters of sex, lascivious. In Psychology, a person who is unusually or morbidly interested in sexual thoughts or practices is known as prurient. Likewise, anything which excites or encourages lustfullness and/or eroticism is termed as prurient. As per English language, therefore, such literature or other acts which are marked or tending to arouse sexual desire or interest or are of laturus, salacious, lascivious, voyeuristic wou....
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....e A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.: " '. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . .' See Comment, id., at 10, and the discussion at page 29 et seq." xx xx xx 12. The Court of Appeals was aware that Roth had indicated in footnote 20 that material appealing to the prurient interest was "material having a tendency to excite lustful thoughts" but did not believe that Roth had intended to characterize as obscene material that provoked only normal, healthy sexual desires. We do not differ with that view. As already noted, material appealing to the "prurient interest" was itself the definition of obscenity announced in Roth; and we are quite sure that by using the words "lustful thoughts" in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal. At the end of that footnote, as the Court of Appeals observed, the Roth opinio....
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.... have taxed the ingenuity of American judges. In Jacobellis v. Ohio, Justice Potter Stewart famously declared: "I shall not today attempt further to define [obscenity] ... and perhaps I could never succeed in intelligibly doing so. But I know it when I see it." [378 U.S. 184, 197 (1964) (concurring).] The Court has attempted to clarify the Miller test by defining a "prurient" interest in sex as a "shameful or morbid" interest, as opposed to a "normal and healthy" interest. [Brockett v. Spokane Arcades, Inc.,, 472 U.S. 491, 504-05 (1985).] In my opinion, that elaboration does not, in itself, furnish a great deal of guidance." 87) Even Delhi High Court has accepted the manner in which American Courts have dealt with the subject, which can be seen from the following observations in Amitabh Bachhan Corporation Ltd. v. Om Pal Singh Hoon 1996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB): "22. Question also arose before the U.S. Supreme Court in F.C.C. v. Pacifica Foundation (1978) 438 U.S. 726) as to the meaning of of word 'indecent'. It was contended, relying on certain rulings that the particular words used in the radio broadcast were not 'obscene' and therefore not 'indecen....
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....l. Re: Whether punishment provided under Section 8(2) of the Act is discriminatory and offends Article 14 of the Constitution? 91) Precise submission of the petitioners in this behalf is that this punishment is for those who allow obscene dance etc. Obscenity is also an offence under Section 294 IPC which is punishable with imprisonment that may extend to three months. In contrast, as per the impugned provision, the imprisonment may extend to three years. It is, thus, argued that for the same offence, whereas the Central Act prescribes imprisonment upto three months, the prescription of imprisonment upto three years in Section 8(2) of the Act is violative of Article 14 and is in conflict with the IPC i.e. the central law. We are not impressed with this argument. As rightly argued by the respondents, sub-section (2) has to be read along with sub-section (1) of Section 8. Under Section 8(1), if the place is used in contravention of Section 3, it is made a punishable offence. It means that where a hotel, restaurant, bar room or any place is used for staging dances without obtaining a licence under Section 3 of the Act, that is made a punishable offence. However, even if licence is ....
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....rticular manner of tipping as it is entirely a matter between an employer and performer on the one hand and the performer and the visitor on the other hand. We, therefore, uphold the provision insofar as it prohibits throwing or showering of coins, currency notes or any article or anything which can be monetised on the stage. However, handing over of the notes to the dancers personally is not inappropriate. We also set aside the provision of giving the tips only by adding the same in the bills. 94) Vide Section 12, Grievance Redressal Committee is constituted. Grievance of Mr. Nayyar, as noted above, is that it should have representation of bar dancers as well. Though, such a representation may be desirable, that by itself cannot be a ground to invalidate a legislation. We, therefore, leave it to the law makers to consider this aspect. Legality of certain Rules 95) Insofar as Rule 3(3)(i) is concerned, there is a substance in the submission of the petitioners that it is quite vague. As per this sub-rule, a person is entitled to obtain or hold licence who possesses a 'good character' and 'antecedents' and he should not have any history of 'criminal record' in the past ten y....
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....s condition is also held to be arbitrary and unreasonable and is quashed, with liberty to the respondents to prescribe the distance from educational and religious institutions, which is reasonable and workable. 99) Insofar as condition No.2 of Part B is concerned, it imposes an obligation on the employers to the effect that working women, the dancers and waiters/waitresses must be employed under a written contract on a monthly salary. Further, this monthly salary is to be deposited in their bank accounts with all the benefits required under the law. Copy of such contracts is to be deposited with the licensing authority as well. Insofar as provision relating to entering into a written contract as well as depositing of the remuneration in the bank accounts is concerned, it appears to be justified as it would make the conditions on which such working women, dancers and waiters/waitresses are employed, transparent thereby eliminating or minimising any chances of exploitation or other disputes. However, the condition of employing such persons on monthly salary does not stand the judicial scrutiny. This shows that such persons are to be employed in a particular manner i.e. on monthly ....
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....where the alcohol is served by women waitresses. However, such conditions have been held to be unreasonable by the Courts. There may be aberrations or sporadic incidents of this nature which can happen not only at the places where dance performances are staged but at other places including bar rooms and even main restaurants. Other measures have to be adopted to check such a nuance. There cannot be a complete prohibition from serving alcoholic beverages. We, therefore, quash condition No. 12. 102) Condition No. 20 of Part B mandates installing of CCTV Cameras. This again would be totally inappropriate and amounts to invasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21 of the Constitution as held in K.S. Puttaswamy case, where the Court observed: "247.3. Anita Allen has, in a 2011 publication, developed the concept of "unpopular privacy" [Id, at p. 500] . According to her, Governments must design "unpopular" privacy laws and duties to protect the common good, even if privacy is being forced on individuals who may not want it. Individuals under this approach are not permitted to waive their privacy rights. Among the component elements which she noti....