STATE OF MAHARASHTRA & ANR. v. INDIAN HOTEL & RESTAURANTS ASSN. & ORS

Citation: [2013] 7 S.C.R. 654

Court: Supreme Court of India

Bench: ALTAMAS KABIR, S.S. NIJJAR

Case summary

STATE OF MAHARASHTRA & ANR. v. INDIAN HOTEL & RESTAURANTS ASSN. & ORS.pdf

Judgment text

[2013] 7 S. C. R. 654 STATE OF MAHARASHTRA & ANR. v. INDIAN HOTEL & RESTAURANTS ASSN. & ORS. (Civil Appeal No. 2705 of 2006) · JULY 16, 2013 [ALTAMAS KABIR, CJI. AND SURINDER SINGH NIJJAR, J. ] BOMBAY POLICE ACT, 1951: ss. 33A and 33B - Prohibition on bar dancing in State of Maharashtra - s. 33-A prohibiting to hold performance of dance of any kind or type in any eating house, permit room or bear bar, but exempting the establishments covered uls 33-B from any such restriction - Held: A distinction, the 0 foundation of which is the classes of establishments and the classes/kind ofp~rsons, who frequent the establishments and those wfJo own the establishments, cannot be supported under the Constitutional philosophy - The classification of establishments covered u/ss 33A and 33B would not satisfy the test of equality - The distinction is made on the grounds of "classes of establishments" or "classes of persons, who frequent the establishments" and not on the form of dance ss.

33A and 33B introduce an invidious discrimination which cannot be justified under Art. 14 of the Constitution - Yet at the same time, both kinds of establishments are to be granted licenses and regμlated by the same restrictions, regulations and standing provisions - It would be more appropriate that the State Government re-examines the recommendations made by the Committee and the suggestions made in para 123 of the judgment to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls - Constitution of India, 1950 - Arts. 14, 19(i)(a), 19(1){g) and 21. RESTAURANTS ASSN. CONSTITUTION OF IND/A, 1950: Art. 19(1)(g) read with Art. 14 - Prohibition on dance s. 33-A of Bombay Police Act prohibiting dance of any kind of type in any eating house, permit room or bear bar - Held: State has failed to establish that the restriction is reasonable 8 or that it is in the interest of general public- Insertion of s.

33- A in the Bombay Police Act has led to closure of a large number of establishments and unemployment of over seventy five thousand woman workers - The impugned legislation has proved to be totally counterproductive and being ultra vires Art. 19(1)(g), cannot be sustained- Bombay Police Act, 1951 - ss. 33A- Convention on the Elimination of All Forms of Discrimination Against Women (CEADAW) - Doctrine of severability - Doctrine of reading down. By amendment Act No. 35 of 2005, ss. 33-A and 33- B were introduced into the Bombay Police Act, 1951. By s. 33-A, holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar was prohibited; and by ss. 33-B it was provided that the prohibition laid by s.

33-A would not apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to: (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf. Further, violation of s. 33-A(1) was made punishable with a sentence of imprisonment up to 3 years and a fine of Rs. 2 lacs. This led to closure of a large number of establishments and loss of employment for about seventy-five thousand women employed in the dance bars in various capacities in the State. Writ petitions were filed in the High Court contending that ss. 33-A and 33-8 were violative of, inter alia, Arts. 14 and 19(1)(a), 19(1)(g) and 21 of the Constitution.

The High Court declared s. 33-A as ultra vires Arts. 14 and 19(1)(g) of the Constitution of India. Dismissing the appeal, the Court HELD: Per Surinder Singh Nijjar, J. (for CJI and for himself): 1. 1. A distinction, the foundation of which is classes of the establishments and classes/kind of persons, who . frequent the establishments and those who own the establishments cannot be supported under the Constitutional philosophy so clearly stated in the Preamble to the Constitution of India and the individual Articles prohibiting 'discrimination on the basis of caste, colour, creed, religion or gender. The Preamble· to the Constitution of India as also Arts. 14 to 21, as observed in l. R. Coelho* form the heart and soul of the Constitution. Taking away of these rights of equality by · any legislation would require clear proof of the justification for such abridgment. [para 100) [738-E-H] *l. R. Coelho (Dead) by LRs. Vs. State of T. N. 2007 (1) SCR 706 = 2001 (2) sec 1- relied on. 1. 2.

Section 33A(1 )(a) of the Bombay Police Act, 1951 prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar. This is a complete embargo on performance of dances in the establishment covered u/s 33A(1). Section 33A contains a non-obstante clause which makes the section stand alone and absolutely independent of the Act and the rules. Contravention of s. 33A(1) makes it a criminal offence and on conviction offender is liable to punishment of 3 years. On the other hand, the establishments covered . u/s 338 RESTAURANTS ASSN. enjoy complete exemption from any such restrictions and dance performances are permitted provided the 1 establishments com ply with the applicable statutory provisions, Bye-Laws, Rules and Regulations. [para 98] [736-F-H; 737-8-C] 8 1. 3. The classification of the establishments covered u/ss 33A and 338 would not satisfy the test of equality.

The distinction is made on the grounds of "classes of establishments" or "classes of persons, who frequent the establishments" and not on the form of dance. There is no justification that a dance permitted in exempted institutions u/s 338, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. Rather it is evident that the same dancer can perform the same dance in the exempted institution u/s 33-8 but is prohibited of doing so in the establishments covered u/s 33A. There is no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the State is illustrated by the fact that an infringement of s. 33A(1) by an establishment covered under the said provision would entail the owner being liable to be imprisoned for three years by virtue of s. 33A(2).

On the other hand, no such punishment is prescribed for establishments covered u/ s 338. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Art. 14 of the Constitution. [para 100-101] (738-D-E, H; 739-A; 740-A-D] State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa & Ors. 1974 (1) SCR 771 = 1974 (1) SCC 19; E. V. Chinnaiah Vs. State of A. P. & Ors. 2004 (5) Suppl. SCR 972 = 2005 (1) SCC 394; Budhan Chaudhry Vs. State of Bihar 1955 SCR 1045 =AIR 1955 SC 191; Laxmi Khandsari & Ors. Vs. State of UP. & Ors. 1981 (3) SCR 92 = 1981 (2) SCC 600 - relied on. Radice Vs. People of the State of New York 264 U. S. 292 (1924) - cited. 8 1. 4. Once the respondents had given prima facie proof of the arbitrary classification of the establishments u/ss 33A and 338, it was duty of the State to justify the reasonableness of the classification.

The appellants have failed to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. 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. [para 100-101 and 104] [738-H; 739-A, 8-C, D- E; 743-E] 1. 5. The so called distinction is based pureiy on the basis of the class of the performer and the so called · superior class of audience. It cannot be presumed that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. The presumption which runs through ss.

33A and 338 that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes it would lead to immorality, decadence and depravity, cannot be accepted. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The said presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a RESTAURANTS ASSN. precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. The presumption is elitist, which cannot be countenanced under the egalitarian philosophy of the Constitution. Thus, s~. 33A and 338 introduce an invidious discrimination which cannot be justified under Art. 14 of the Constitution.

Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions. [para 102-103) [741-F-H; 742-A-C, E-F] Charanjit Lal Chowdhury Vs. Union of India & Ors. 1950 SCR 869 =AIR 1951 SC 41; Ram Krishna Dalmia Vs. Justice S. R. Tendolkar 1959 SCR 279 =AIR 1958 SC 538; State of Uttar Pradesh Vs. Kaushailiya & Ors. 1964 SCR 1002 =AIR 1964 SC 416; and Shashikant Laxman Kale & Anr. Vs. Union of India & Anr. 1990 (3) SCR 441 =1990 (4) sec 366 - referred to. 1. 6. A perusal of the Objects and the Reasons would show that the impugned legislation proceeds 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.

Isolated examples would not be sufficient to establish the connection of the dance bars covered u/s 33A with trafficking. Therefore, it cannot be said that the ban has been placed for the protection of the vulnerable women. [para 105) [743-G-H; 744-8-C] 1. 7. The Legislature is free to recognize the degrees of harm· and may confine its ~estrictions to those cases where the need is deemed to be clearest. Further, the State may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, but such conclusion have to be reached either on the basis of general consensus shared by the majority of the population or on the basis of empirical data. 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 situ. ation.

The three reports presented before the High Court in fact have presented divergent view points. In the instant case, the appellant has failed to give any details of any experience which would justify such blatant discrimination, based purely on the class or location of an establishment. [para 106] [744-D-G; 745-A] Ram Krishna Dalmia Vs. Justice S. R. Tendo/kar 1959 SCR 279 =AIR 1958 SC 538; Mohd. Hanif Quareshi Vs. State of Bihar 1959 SCR 629 =AIR 1958 SC 731 referred to. Joseph Patsone Vs. Commonwealth of Pennsylvania 232 U. S. 138 (1914) - cited. 1. 8. The State has failed to justify the classification between the exempted establishments and prohibited establishments on the basis of surrounding circumstances; or vulnerability. Undoubtedly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty bound to disclose the reasons for the ostensible conclusions.

In the instant case, the legislation is based on an unacceptable presumption that the so called elite i. e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality dance bars. Such a presumption is abhorrent to the resolve in the Preamble RESTAURANTS ASSN. to the Constitution to secure the citizens of India, "Equality of status and opportunity and dignity of the individual". The State Government presumed that the performance of an. identical dance item in the establishments having facilities less than 3 stars would be derogative to the dignity ofwomen 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. [para 107] [745-B-F] 1. 9.

The activities which are obscene or which are likely to deprave and corrupt those whose minds are open to such immoral influences, cannot be distinguished on the basis as to whether they are performing in 5 star hotels or in dance bars. The judicial conscience of this Court would not give credence to a notion that high morals and decent behaviour is the exclusive domain of the upper classes; whereas vulgarity and depravity is limited to the lower classes. Any classification made on the basis of such invidious presumption is liable to be struck down being wholly unconstitutional and particularly contrary to Art. 14 of the Constitution of India. [para 108] (746-E-G] Gaurav Jain Vs. Union of India 1997 (2) Suppl. SCR 105 =1997 (8) SCC 114 - referred to. F· 2. 1. Upon analyzing the entire fact situation, the High Court has rightly held that dancing would be a fundamental right and cannot be excluded by dubbing the same as res extra commercium.

The State has failed to establish that the restriction is reasonable or that it is in the interest of general public. The High Court noticed that in the guise of regulation, the legislation has imposed a total ban on dancing in the establishments covered u/s 33A. [para 110] (747-E-G] Narendra Kumar &Ors. Vs. Union of India &Ors. (1960) 2 SCR 375; and Maneka Gandhi Vs. Union of India & Anr. 1978 (2) SCR 621 = 1978 (1) SCC 248 - referred to. ·2. 2. There are already sufficient rules and regulations and legislation in place which, if efficiently applied, would 8 control if not eradicate all the dangers to the society enumerated in the Preamble and Objects and Reasons of the impugned legislation. There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions recorded in the Preamble as well the Objects and Reasons.

Sufficient power is vested with the Licensing Authority to safeguard any perceived violation of the dignity of women through obscene dances. [para 110 and 116] [747-H; 748-A; 751-F-G; 752-B-C] State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. 2005 (4) Suppl. SCR 582 = AIR 2006 SC 212 referred to. 2. 3. From the Objects of the impugned legislation and amendment itself, it is crystal clear that the legislation was brought about on the admission of the police that it is unable to effectively control the situation in spite of the existence of all the necessary legislation, rules and regulations. It cannot be said that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. [para 117 and 119) [752-C-D; 753-F-G] State of Bombay Vs. R. M. D. Chamarbaugwala & Anr. 1957 SCR 874 =AIR 1957 SC 699; Khoaay Distilleries Ltd. & Ors. Vs.

"State of Kamataka & Ors. 1994 (4) Suppl. SCR 477=1995 (1) SCC 574; and State of Punjab & Anr. Vs. RESTAURANTS ASSN. Devans Modern Breweries Ltd. & Anr. 2003 (5) Suppl. SCR 930 = 2004 (11) SCC 26 ... ,. held inapplicable New York State Liquor Authority. Vs. Dennis BELLANCA, DBA The Main Event, Et Al. 452 I. IS. 714 (1981); Regina Vs. Bloom 1961 3 W. L. R. 611 - cited. 2. 4. ·The end result of the prohibition of any form of dancing in the establishments covered uls 33A leads to the only conclusion that these establishments have to shut down. This is e. vident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution· out of necessity for maintenance of their families. The impugned legislation has proved to be totally counterproductive and being ultra vires Art.

19(1}(g}, cannot be sustained. [para 120] [754-B-D] 2. 5. It is not possible to read down the expression "any kind or type" of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered u/s 338. [para 121] [754-F-G] Government ofAndhra Pradesh & Ors. Vs. P. Laxmi Devi , (Smt. ) 2008 (3) SCR 330 =2008 (4) SCC 720 - referred to. 2. 6. By applying the doctrine of severability, even if s. 338 is declared unconstitutional, the statute would still retain the provision contained in s. 33A which prohibits any kind of dance by any person in the establishments covered u/s 33A. [para 122] [754-H; 755-A] 3. 1. The Committee comprising of the Chairman of AHAR, Public and Police Officials. and chaired by the Principal Secretary (E. I. ), Home Department, had prepared a report and submitted the same to the State Government.

The State Government had in fact sent a communication dated 16th July, 2004 to all Judicial Magistrates and Police Commissioner to amend the rules for exercising control on hotel establishments presenting dance programmes. It would be more appropriate that the State Government re-examines the recommendations made by the Committee and the suggestions made in para 123 of the judgment to bring about measures which should ensure the safety and improve the working conditions of the persons working 'as bar girls. As has been observed by this Court in the case of Anuj Garg instead of. putting curbs on women's freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law 0 modeling done in this behalf.

In the instant case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. [para 123-124] [755-B-D; 756-E-H; 757-A] Welfare Association, A. R. P. , Maharashtra & Anr. Vs. Ranjit P. Gohil &Ors. 2003 (2) SCR 139 = 2003 (9) SCC 358; S. P. Mittal Vs. Union of India & Ors. 1983 (1) SCR729 = (1983) 1 SCC 51; Kedar Nath Bajoria & Anr. Vs. The State of West Bengal 1954 SCR 30; Municipal Corporation of the City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr. 1986 (2) SCR 700 =1986 (3) SCC 20; T. B. Ibrahim Vs. Regional Transport Authority, Tanjore (1953] 4 SCR 290; Fertilizer Corporation Kamgar Union (Regd. ), Sindri & Ors. Vs. Union of India & Ors.

1981 (2) SCR 52 =AIR 1981 SC 344; State of Madras Vs. v: G. Row 1952 SCR 597 = AIR 1952 SC RESTAURANTS ASSN. 196, B. P. Sharma Vs. Union of India & Ors. 2003 (2) Suppl. SCR 684 = 2003 (7) SCC 309, M. R. F. Ltd. Vs. Inspector Kera/a Govt. & Ors. 1998 (2) Suppl. SCR 632=1998 (8) SCC 227; M. J. Sivani & Ors. Vs. $fate of Kamataka & Ors. (1995) 6 SCC 289; State of Bihar & Ors. Vs. Bihar Distillery Ltd. & Ors. 1996 (9) Suppl. SCR 479 =1997 (2) SCC 453; Kedar Nath Singh Vs. State of Bihar 1962 Suppl. SCR 769 =AIR 1962 SC 955; Sakal Papers (P) Ltd; & Ors. Vs. The Union of India (1962) 3 SCR 842; Anuj Garg & Ors. Vs. Hotel Association of India & Ors. 2007 (12) SCR 991 = 2008 (3 ) SCC 1; Government of A. P. Vs. P. B. Vijayakumar & Anr. 1995 (1) Suppl. SCR 462 = 1995 (4) SCC 520; Mis. Laxmi Khandsari & Ors. Vs. State of U. P. & Ors. 1981 (3) SCR 92=1981 (2) SCC 600 Rustom Cavasjee Cooper Vs. Union of India 1970 (3) SCR 530 = 1970 (1) SCC 248 Bharat Bhawan Trost Vs.

Bharat Bhawan Artists' Association &Anr. 0 2001 (2) Suppl. SCR 27 = 2001 (7) SCC 630; D. S. Nakara & Ors. Vs. Union of India 1983 (2) SCR 165 = 1983 (1) SCC 305 ; Sanjeev Coke Manufacturing Company Vs. Mis Bharat Coking Coal Limited & Anr. 1983 (1) SCR 1000 = 1983 (1) SCC 147; Sodan Singh & Ors. Vs. New Delhi . Municipal Committee & Ors. 1989 (3) SCR 1038 = 1989 (4) sec 155 - cited Consolidated Coke Co. Vs. Taylor 234 U. S. 224 (1913); Paris Adult Theatre I Et. Al Vs. Lewis R. Slaton, District Attorney, Atlanta Judicial Circuit, Et. Al 413 U. S. 49 [1973] cited. Per Altamas Kabir, CJI. (Supplementing): 1. The right to practise a trade or profession and the right to life guaranteed under Art. 21 are, by their very nature, intermingled with each other. It would be better to treat the cause than to blame the effect and to completely discontinue the livelihood. of a large section of women, eking out an ex!

stence by dancing in bars, who will be left to the mercy of other forms of exploitation. Instead of generating unemployment, it may be wiser for the State to look into ways and means in which reasonable restrictions may be imposed on bar dancing, but without completely prohibiting or stopping the same, as suggested in para 123 of the main judgment. (para 4 and 6) [757-G-H; 758-A-B; 759-A-B] 2. The State has to provide alternative means of support and shelter to persons engaged in such trades or professions, some of whom are trafficked from different parts of the country and have nowhere to go or earn a living after coming out of their unfortunate circumstances. A strong and effective support system may provide a solution to the problem. [para 7) [759-B-C] Case Law Reference: Per Nijjar,J. 1990 (3) SCR 441 cited para 25 2003 (2) SCR 139 cited para 26 1964 SCR 1002 held inapplicable para 30 1959 SCR 279 referred to para 35 232 U. S. 138(1914) referred to para 35 234 U. S.

224 (1913) cited para 36 264 U. S. 292 (1924) cited para 37 1959 SCR 629 referred to para 38 1983 (1) SCR 729 cited para 40 413 U. S. 49 cited para 44 1954 SCR 30 cited para 46 2005 (4) Suppl. SCR 582 referred to para 49 1986 (2) SCR 700 cited para 49 RESTAURANTS ASSN. [1953) 4 SCR 290 cited para 54 1957 SCR 874 held inapplicable para 55 1994 (4) Suppl. SCR 477 held inapplicable para 55 2003 (5) Suppl. SCR 930 held inapplicable para 56 452 U. S. 714 (1981) held inapplicable para 56 1961 3 W. L. R. 611 cited para 57 1981 (2) SCR 52 cited para 58 1952 SCR 597 cited para 61 2003 (2) Suppl. SCR 684 cited para 61 1998 (2) Suppl. SCR 632 cited para ~1 ' (1995) 6 sec 289 cited para 63 1950 SCR 869 cited para 65 1996 (9) Suppl. SCR 479 cited para 66 2008 (3) SCR 330 cited para 68 ·. _~ 1962 Suppl. SCR 769 cited para 69 2007 (1) SCR 706 relied on para 72 (1962) 3 SCR 842 cited para 72 2007 (12) SCR 991 cited para 72 1981 (3) SCR 92 cited para 73 1995 (1) Suppl.

SCR 462 cited para 74 1981 (3) SCR 92 relied on para 76 (1960) 2 SCR 375 cited para 77 1970 (3) SCR 530 cited para 79 1978 (2) SCR 621 cited para 79 2001 (2) Suppl. SCR 27 cited para 79 1983 (2) SCR 165 cited para 81 1983 (1) SCR 1000. cited para 83 1989 (3) SCR 1038 cited para 88 1955 SCR 1045 cited para 92 1974 (1) SCR 771 cited • para 98 2004 (5) Suppl. SCR 972 cited . para 99 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2705 of 2006. From the Judgment & Order dated 12. 04. 2006 ofthe High Court of Judicature at Bombay in W. P. Nos. 2450, 2052, 233S & 2587 of 2005. WITH C. A. Nos. 2704 of 2006 & 5504 of 2013 . . Shekhar Naphade, Mukul Rohatgi, Anand Grover, Dr. Rajeev Dhawan, Ravindra Adsure, Subhangi Tuli, Asha Gopalan Nair, Sanjay Kharde, Preshit V. Surshe, Veena Thadani, Satyajit Saha, Prasenjit Keswani, Vishal Thadani, Sourabh Kripal, V. D. Khanna, Meenakshi Arora, Aparna Bhat, Rajkumari 8. , Upasana G. , Nikhil Nayyar, Tripti Tandon, Amritananda Ch. , Naveen R.

Nath, Manoj K. Mishra, Sanjay K. Visen, Shiv Pati B. Pandey, Venkateswara Rao Anumolu, Vishwajit Singh, Satyajit A. Desai, Somanath Padhan, Anagha S. Desai, Kamini Jaiswal, Sunil Kumar Verma, Chander Shekhar Ashri for the Appearing parties. The Judgments of the Court was delivered by SURINDER SINGH NIJJAR, J. 1. Leave granted in SLP (C) No. 14534 of 2006. 2. These civil appeals seek to challenge common STATE OF MAHARASHTRA v. IND1AN HOTEL & 669 judgment and final order dated 12th April, 2006 in Writ Petition No. 2450 of 2005, W. P. No. 2052 of 2005, W. P. No. 2338 of 2005 and W. P. No. 2587 of 2005 passed by the High Court of Judicature at Bombay, whereby Section 33A of the Bombay Police Act, 1951 as inserted by the Bombay Police (Amendment) Act, 2005 has been declared to be ultra vires Articles 14 and 19(1)(g) of the Constitution of India. Summary of Facts - 3.

Brief facts leading to the filing of the aforesaid writ petitions are - The Bombay Police Act, 1951 (hereinafter 'the Act') was enacted in the year 1951 with the object of consolidating and amending the law relating to the regulation of the exercise of powers and performance of the functions by the State 0 Government for maintenance of public order. Section 33 of the Act authorises the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the "Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Me/as & Tamashas, 1960" (hereinafter 'the Rules') were enacted to regulate and maintain discipline in places of public amusement, melas etc. 4. In 1986, orchestra and dance in hotels was permitted to be performed pursuant to the Rules and such institutions functioned under terms and conditions laid down therein.

However, several cases relating to violation of the terms and conditions of performance licences came to be registered. It is claimed that 20,196 cases were registered under Section 33(w), 110 and 117 of the Act from the year 2000 till 2005. Also, various cases of minor girls being rescued from dance bars were reported during the said period 2002-2005. The appellants have referred to the case histories from the Government Special Rehabilitation Centre for Girls (Special Home) of 10 girl children rescued from such establishments under Immoral Traffic (Prevention) Act, 1956 by Mumbai Police, which according to the appellants, correctly depict the prevailing situation. The Government of Maharashtra, Home Department, on 10th December, 2002 passed resolution No.

REH 012002/ 153/SE-5, noting therein : "It has come to notice that prostitution rackets are being run through pick up points in hotel establishments in which dance programmes are being conducted (Dance Bars) and that dance forms being presented therein are horrid and obscene and that criminals are being sheltered in such hotels. Such undesirable practices going on in hotel establishments have an adverse effect on society. " It was resolved to form a committee to make suggestions for amending the rules to deal with: (a) Remedial measures to check other undesirable practices going on in hotel establishments presenting dance programmes. (b) To prevent prostitution in hotel establishments (c) Remedial measures to see that criminals are not sheltered in hotel establishments; (d) To frame a code specifying what type of dance forms should be presented in hotel establishments.

(e) Creating a roving squad to check undesirable practices in hotel establishments and take strict action against owner of those establishments. 5. Pursuant to the aforesaid resolution, the Committee submitted its recommendations which were incorporated and circulated to all the concerned authorities through the letter of the Home Department No. REH 012002/153/SB-5 dated 16th July, 2004. In this letter, the suggested regulations were summarized as follows: a. There should be restrictions on the attire of the 8 dancers. b. Dancing area must have a railing 3 feet high around it, and customer seats should be at least 5 feet away from the railing. c. Dance floor to be of dimension of 10 x 12 ft so not more than 8 dancers can dance simultaneously. d. Customer rewards for dancing are to be routed through management of the establishment and customers are banned from going near the dancers or "showering money". e.

Names of dancers are to be registered with the establishment, a record kept of their employment, including details of identity/citizenship and place of residence. 6. This letter instructed all Judicial Magistrates and Police Commissioners to implement these recommendations with immediate effect. 7. On 6th August, 2004 the Chairperson of the Maharashtra State Commission for Women wrote to the State Government about the ongoing racketeering to lure girls to work in dance bars and their consequent acts of prostitution and immoral trafficking stating: "Number of rackets indulging into physical and financial exploitation of girls working in dance bars by forcibly bringing them into this profession are found to be increasing alarmingly. In the metropolis of Mumbai, the problems of the bar girls have acquired grave dimensions and have resulted even into death of many bar girls. These women are forcibly induced into prostitution leading to total destruction of their life. "....

Further "Most of the girls working in Dance Bars of Maharashtra State do not hail from State of Maharashtra, but come from other States. " "In the future this problem in all the probability would spoil our social health by acquiring increasingly grave dimensions, not confined only to Mumbai but extending to the National and even International levels. " 8. The letter went on to recommend a ban on such establishments by stating: "I therefore, request you that the system of issuing permits to the Bar Girls by various departments of Government should be stopped forthwith, thereby ·relieving the women from their physical, sexual and financial exploitation in the future. " 9. According to the appellant, the seriousness of the issues involved is well documented of which the Home Department was fully aware. The material available before the Home Department was as under: a. Copies of case history of 1Ogirl children rescued from dance bar(s) under Immoral Traffic (Prevention) Act, 1956. b.

Copies of complaints of victims' families against illicit relations with bar dancers. C. Copies of complaints of Social Organizations against dance bars. d. Copies of FIRs of cases registered in relatio. n to dance bars. e. Summary of cases registered under the Immoral Traffic (Prevention) Act, 1956, u/s 294 IPC, u/s 33(w) & 110 of Bombay Police Act, 1951 during the period 2000~2005 regarding dance bars. 10. Apart from this, a study of the soci~conomic situation and rehabilitation needs of the women in dance bars was conducted by PRAYAS (a field action project of the Tata Institute of Social Sciences) in 2005. This study pointed out the relevant facts regarding exploitation of minor girls in dance bars. The study also pointed out that there was presence of the element of human trafficking in the entir~ process; and that the o environment of the dance bars was found to have negative impact on the physical and mental health of the rpinor girls.

The study also pointed out that the atmosphere in the dance bars increased the vulnerability of the minor children to sexual exploitation. It is also the case of the appellants that independent of registration of offences under Bombay Police Act and PITA Act as well as IPC, several complaints had been received from various segments of society urging the State Government to take steps for closure of the dance bars by legislative action. 11. Taking into consideration the aforesaid material, the members of the Maharashtra Legislative Assembly expressed deep concern over the ill effects of dance bars on youth and dignity of women. lhe Assembly further felt that the existing measures were insufficient to tackle the subject. Just at that time, a 'Call Attention Motion' was tabled by Shri Vivek Patil in the State Legislative AssembJy on 30th March, 2005. A detailed reply was given by Shri R~R. Patil, Hon'bfe Dy. Chief Minster to the same, on 21st July, 2005.

Taking stock of the entire situation, the State Government came to a tentative opinion that performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt and/or injure public morality. It was evident on the basis of the material available to the Government that permit rooms or beer bars licensed under the relevant rules, were indulging ih exploitation of women by permitting the performance of dances in an indecent obscene or vulgar manner. The Government, therefore, considered it expedient to prohibit such dance performances in eating houses or permit rooms or beer bars. 12. It was emphasised that even prior to the aforesaid decision, the attention of the Government had been invited to mushrooming growth of illegal dance bars and their ill- effects on the society in general, including ruining of some families.

The dance bars were also used as meeting points by criminals and pick up joints of girls indulging in immoral activities. Young girls desirous of earning· easy money were being attracted to such dance bars and getting involved in immoral activitieS'. The decision was, therefore, taken by the State Government to prohibit performance of dance in eating houses or permit rooms or beer bars by suitably amending the Bombay Police Act, 1951. 13. The State Government took a conscious decision upon consideration of the various factors to add Sections 33A and 33B to the Bombay Police Act. The necessary amendment was introduced in Maharashtra Legislative Assembly on 14th July, 2005. The Bill was passed by the Legislative Assembly on 21st July, 2005 and by the Legislative Council on 23rd July, 2005. The amended Act No.

35 of 2005, incorporating Sections 33A & 33B in the Bombay Police Act, 1951, came into force after receiving the assent of the Governor of the Maharashtra by publishing in the Maharashtra Gazette on 14th August, 2005. Writ Petitions before the High Court of Bombay 14. The Amendment to the Bombay Police Act of 1951, introducing Sections 33A and 33B, was challenged as being RESTAURANTS ASSN. [SURINOER SINGH NIJJAR, J. ] unconstitutional in several writ petitions before the High Court of Bombay; which are tabulated as under: Writ Petition Number Party WP 2450/2005 Indian Hotel and Restaurants Owners Association, 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. WP 2052/2005 Bharatiya Bar Girls Union, a registered trade union claiming a membership of 5000, whose members work as bar girls in different parts of Maharashtra.

WP 2338/2005 The Parties in this petition are a group of six petitioners, who are women's organizations working in the field of women's development. WP 2587/2005 The· 1st petitioner is a trust registered under the Public Trust Act, working with sex workers in the Malvani area of Malad in Mumbai. The 2nd petitioner is the Ekta Self Group which consists of 1O bar dancers. WP 1971/2005 Criminal WP The petitioner is the Association of Dance Bar owners duly registered under the Trade Unions Act, and have as their members 344 dance bars. WP 6930-6931/2005 Proprietors of two establishments who are affected by the amendments to the Police Act. WP 5503-5504/2005 Proprietors of two establishments who are affected by the amendments to the Police Act. It was contended: That the State of Maharashtra does not have the legislative competence to enact the impugned law as 'morality' does not fall within the ambit of List II of Schedule 7 and that the impugned enactment falls in the concurrent list.

That the impugned amendment was not reserved for the assent of the President and therefore is unconstitutional under Article 254 . of the Constitution and also that the State does not have the power to implement international conventions and hence this enactment amounts to fraud on the Constitution. That the enactment results in interference with the independence of judiciary as no reasons are provided under S. 33A(2) of the Act for awarding lesser punishments. · That the affidavit filed by Youraj Laxman Waghmare was not in compliance with Order 19 Rule 3 of the Civil Procedure Code as no verification clause was provided. That the establishment of the petitioners is a place of public entertainment and public amusement as defined under S. 2(10) and 2(9) respectively and not an "eating place" under S. 2(5A) of the Bombay Prohibition Act, 1951 and hence the provisions do not bind the petitioners. That S.

33A and 338 are arbitrary under Article 14 as they provide for different standards of morality RES:rAURANTS ASSN. [SURINDER SINGH NIJJAR, J. ] to institutions with similar activities and that the activities in S. 33A establishments are less obscene but nonetheless the classification bears no nexus to the object of the Amendment. That S. 33A is violative of Article 15 on the basis of gender discrimination as the dancers are mainly women. That there is violation of Article 19 (1)(a) as dance is a form of expression and that the impugned enactment is ari unreasonable restriction and it is not by protected by Article 19(2). That there ls an unreasonable restriction on right to freedom of profession as the State Government permitted and granted licenses for running such o establishments being Res Commercium and that it deprives the bar owners of their right to carry on business and bar dancers the right to carry on their . profession. E.

That right to life under Article 21 is infringed as right to life includes right to livelihood and that the State has not provided for any rehabilitation. 15. The State of Maharashtra defended the challenge to enactment as follows: That the impugned enactment is covered by the List II. Entries 1- Public Order, 2- Police, 6- Public Order, 8- Intoxicants, 33- Entertainment or Amusement, 64- Offences against laws. That the 'eating houses' are covered in the impugned enactment as they would fall in public entertainment places, as license is issued to an eating house, which enjoys an additional facility to serve liquor, wine and beer. That there is no violation of Article 19(1)(a) as the dance being conducted is not an expression but a profession where restrictions can be imposed. That there is no violation of Article 15 as the ban on obscene dance applies to men . and wqmen.

That the several minor girls danced to get rewarded with cash by enticing customers, that led to a competition between performers leading to greatest rewards reserved for the greatest indignities which escalated prostitution whic~ lead to registration of several cases under Prevention of Immoral Trafficking Act and under Bombay Police Act. That this led the legislatures to make an independent classification of these establishments to safeguard the dignity of women, and public morality. That there are only six exempted establishments and that obscene performances are not permitted in such exempted establishments. Hence there is no violation of Article 14. That with regard to Article 19(1) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified.

That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the "bar girls" in availing benefits of the various Government Schemes for employment and providing alternative dignified vocations. 16. After considering the aforesaid arguments of both the sides, the High Court has, inter alia, held that the type of dancing in both categories of establishments differs and while the difference is not capable of precise legislative definition, it is sufficient to constitute intelligible differentia. However, the fact of different types of dancing being performed bears no nexus with the object sought to be achieved, which, as understood by the Bombay High Court, was limited to the exploitation of women dancers. Consequently, the operation of the impugned enactment is discriminatory. i 17.

With these observations, the High Court declared that Sections 33A and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14 and 19(1)(g) of the Constitution of India. 18. We have heard th~ learned counsel for the parties at some length. But before we notice the submissions at this stage it would be appropriate to reproduce the provisions in Sections 33A and 33B of the Bombay Police Act, 1951. Sections 33A and 338 of the Bombay Police Act: 19.

The provisions read as under: "33A(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, 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 which may 8 extend to rupees two lakhs: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand.

(3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under Sub-section (1 ), holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence. (4) ................. . (5)............... ····· (6) The offence punishable under this section shall be cognizable and non-bailable. 338.

Subject to the other provisions of this Act, or any other law for the time being in force, nothing in section 33A shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf. Explanation. -For the purposes of this section, "sports club" or "gymkhana" means an 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. " Statement of Objects and Reasons 20.

The Statement of Objects and Reasons clause appended to Bill No. LX of 2005 as introduced in the Maharashtra Legislative Assembly on 14th June, 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 Subsection (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 Government that the eating houses or permit rooms or beer bars to whom licences to hold dance performance, have been granted are permitting the performance of dances in an indecent, obscene or vulgar manner. It has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women.

The Government has received several complaints regarding the manner of holding such dance performances. The Government considers that the performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt or injure the public morality or morals. The Government considers it expedient to prohibit the holding of such dance performances in eating houses or permit rooms or beer bars. (2) In the last Budget Session of the State Legislature, by way of a Calling Attention Motion, the attention of the Government was invited to mushroom growth of illegal dance bars and their ill-effects on the society in general including ruining of families.

The members of the State Legislature, from ruling and opposition sides, pointed out that such dance bars are used as meeting points by criminals and pickup joints of girls Page 1267 for indulging in immoral activities and demanded that such dance bars should, therefore, be closed down. These dance bars are attracting young girls desirous of earning easy money and thereby such girls are involved in immoral activities. Having considered the complaints received from general public including the peoples' representatives. the Government considers it expedient to prohibit the performance of dance, of any kind or type, in an eating house or permit room or beer bar, throughout the State by suitably amending the Bombay Police Act, 1951.

However, a provision is also made to the effect that holding of a dance performance in a drama theatre or cinema theatre or auditorium; registered sports club or gymkhana; or three starred or above botel; or in any other establishment or class establishments which the State Government may specify having regard to tourism policy for promotion of tourism in the State or c. ultural activities, are not barred but all such establishments shall be required to obtain performance licence in accordance with the said rules, for holding a dance performance. - 3. The Bill is intended to achieve the following objectives. " Preamble "Whereas the Commissioners of Police, District Magistrates and certain other Officers, have granted 0 performance licences for holding dance performance; And whereas the object of granting such performance licences is to hold such dance performance for public amusement; And whereas it is brought to the notice of the State Gov.

ernment that the eating houses, permit rooms or beer bars to whom licences to hold a dance performance have been granted are permitting performance of dances in an indecent, obscene or vulgar manner; And whereas it has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women; And whereas the Government has received several complaints regarding the manner of holding of such dance performance; And whereas the Government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of woken and are likely to deprave, corrupt or injure the public morality or morals. And whereas the Government considered it expedient to prohibit such holding of performance of dances in eating houses, permit rooms and beer bars. " Legal Submissions: 21. Mr. Harish N. Salve, Mr. Gopal Subramanium and Mr.

Shekhar Naphade, learned senior counsel, have on different occasions made submissions on behalf of the appellants. Mr. Gopal Subramanium has supplemented the oral submissions by written submissions. The common submissions are noted with the appellation of learned senior counsel, referring to all the aforesaid learned senior counsel. 0 22. Learned senior counsel have made submissions confined only to the issue as to whether Sections 33A and 338 of the Bombay Police Act infringe Article 14 and with regard to the provisions being ultra vires Article 19(1 )(g) of the Constitution as all the other issues raised by the respondents were rejected by the High Court. The High Court had specifically rejected the challenge to the vires of the provisions under Article 15(1 ), 19(1 )(a) and Article 21. 23. Learned counsel for the appellants submitted that the classification made by the impugned enactment is based on intelligible differentia, having a nexus with the object sought to be achieved.

It is submitted that the impugned order suffers from flawed reasoning. The classification made between establishments under Sections 33A and 338 is not solely on the basis of the different kinds of dance performances but also on differing social impact such establishments have, by virtue of having differing dance performances and surrounding circumstances including the customers. Therefore according to Mr. Gopal Subramanium, the establishments must be understood in broader terms than is understood by the High Court. According to Mr. Harish Salve and Mr. Gopal Subramanium, the judgment of the High Court is too restrictive. 24. It was emphasised by the learned senior counsel that the High Court has failed to understand the distinction between the two provisions and the object sought to be achieved. Mr. Gopal Sul;>ramanium has listed the differences factored into the classification made by the impugned enactment.

According to the learned senior counsel, the impugned enactment is based on intelligible ~ifferentia which could be categorized under the following broad heads: (i) Type of dance; (ii) Form of remuneration; (iii) Demand for vulnerable women; (iv) Degree of Harm; (v) Regulatory feasibility. 25. It was submitted that in the banned establishments, the women who dance are not professional dancers. In fact, they are majorly trafficked into this profession or have taken this profession when they had no other option. Further, the dance is vulgar and obscene. Women are showered with money when they are dancing, which does not happen in the exempted establishments. Learned senior counsel further submitted that the classification based on type of dance need not be scientifically perfect but ought not to be palpably arbitrary.

According to the learned senior counsel, in the present case, it is not just that the type of dance performed is different but the surrounding circumstances are also different. In the exempted establishments, the distance between the dancing platform and the audience is greater than at the banned establishments. This, according to the learned senior counsel, is sufficient to justify the classification between the exempted G establishments and the banned establishments. Therefore, it cannot be said that the classification is palpably arbitrary. In support of the submissions, the learned senior counsel relied on the observations made by this Court in Shashikant Laxman 1 Kale & Anr. Vs. Union of India & Anr.

wherein this Court observed as follows :- "We must, therefore, look beyond the ostensible classification and to the purpose of the law and apply the test of 'palpable arbitrariness' in the context of the felt needs of the times and societal exigencies informed by experience to determine reasonableness of the classification. 26. Reliance was also placed Welfare Association, A. R. P. , Maharashtra & Anr. Vs. Ranjit P. Gohil & Ors. ,2 wherein this Court observed that: ".............. It is difficult to expect the legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the court would respect the classification dictated by the wisdom of the legislature and shall interfere only on being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14. " 27.

With regard to the form of remuneration, learned senior counsel submitted that remuneration to dancers in banned establishments is generally made out of the money which is showered on them. This creates an unhealthy competition between the dancers to attract the attention of the customers. Therefore, each dancer tries to outdo her competitors in terms of sexual suggestion through dance. This, in turn, creates an unsafe atmosphere not just for the dancers. but also for the other female employees of such establishments. 28. Relying on the report by Shubhada Chaukhar, learned senior counsel submitted that 84% of the bar dancers are from 1. (1990) 4 sec 366. 2. c2003) 9 sec 358. outside the State of Maharashtra. These girls are lured into bar dancing on false pretext. Supporting this submission, the following observations are pointed out in the same report: "Some unmarried girls have entered the world of bars just because of its glamour. Not a few have come of their own . free will.

Many less educated girls are attracted to a livelihood that makes them quick money". 29. On the basis of the aforesaid, learned senior counsel submitted that the activities that are carried out in establishments covered under Section 33A i. e. not just the dance itself but the surrounding circumstances of the dance are calculated to raise the illusion of access to women, irrespective of the consent or dignity of women, in men who are often in an inebriated condition.

In this context, learned senior counsel relied on the case history of girl children rescued from the dance bar(s) under Immoral Traffic (Prevention) Act, 1956; complaints of victims family against illicit relations with bar dancers; complaints of social organi7ations against dance bars; copies of First Information Reports of cases registered in relation to dance bars; summary of cases registered under PITA Act, 1956, under Section 294 IPC, under Section 33(w) & 110 of Bombay Police Act, 1951 during the period 2000-2005 regarding dance bars. 30. It is submitted by the learned senior counsel for the appellants that by comparison such complaints have been minimal in the case of exempted establishments. The same kind of behaviour is not seen as a norm. Learned senior counsel submitted that undesirable, anti social and immoral traffic is directly relatable to certain kind of dancing activities performed in prohibited establishments which are not performed in exempted establishments.

Therefore, there is a rational distinction between the exempted establishments and the prohibited establishments. In support of the submissions, reliance was placed on the judgment of this Court in the case 3 of State of Uttar Pradesh Vs. Kaushailiya & Ors. , wherein the constitutional validity of Immoral Traffic in Women and Girls Act, 1956 was called in question. This Court upheld the validity of the classification between a prostitute who is a public nuisance and one who is not. 31. Taking up the next head on which the classification has been sought to be justified as intelligible differentia, i. e. "the demand for vulnerable women," learned senior counsel relied on certain observations made by one Cathatine Mackinnon (1993) in an article entitled "Prostitution and Civil Rights" which appeared in Michigan Journal of Gender & Law, Volume I : 13- 31.

The argument given by the author therein was that: "If prostitution is a free choice, why are the women with the fewest choices the ones most often found doing it?... The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape. " 32. Taking cue from the aforesaid comments, learned senior counsel submitted that the dancing that takes place in the banned establishments has a similar effect on the psyche of the woman involved, and functions within the same parameters of the understanding of consent. It was emphasised that as a general rule, dancing in a dance bar is not a profession of choice, but of necessity, and consequently, there is a demand not for women of means and options, but vulnerable women, who may not have families and communities to turn to and are completely dependent on their employers. In support of the aforesaid submissions, reliance was placed upon Prayas and Shubhada Chaukar Reports. 33.

It was submitted that the High Court erroneously ignored the contents of the reports extracted above. 34. Now coming to the next head: "Justifying the 3. AIR 1964 SC 416. classification on the criterion of "Degree of Harm. " The appellants emphasised that the characteristics of the dancing that is sought to be prohibited have, to a greater degree than the activities that may be comparable at first blush, created an atmosphere where physical and emotional violence to women was both profitable and normalized. It is, therefore, rational to classify these establishments as a separate class based on-the degree of harm that they trigger. Support for this submission is sought from the observations made by this Court in Ram Krishna Dalmia Vs. Justice S. R.

Tendolkar' wherein it was observed as follows: "The decisions of this Court further establish - (d) that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest. " 35. Reliance was also placed on the observations made in the case of Joseph Patsone Vs. Commonwealth of 5 Pennsylvania • This was a case whereby an Act in Pennsylvania made it unlawful for unnaturalised foreign born residents to kill wild game, except in defence of person or property. The possession of shot guns and rifles by such persons was made unlawful. The Act was challenged as being unconstitutional under due process and equal protection provisions of the 14th Amendment of the United States Constitution.

The Court upheld the Act as constitutional and observed as follows: 'The discrimination undoubtedly presents a more difficult question, but we start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be 4. AIR 1958 SC 538. 5. 232 U. S. 138 (1914). picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if as a matter of fact, it is found that the danger is characteristic of the class named. Lindsley v. Natural Carbonic Gas Co. , 220 U. S. 61,80,81.

The State 'may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses' ........ The question therefore narrows itself to whether this court can say that legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalised aliens were the peculiar source of the evil that it desired to prevent. Barrett v Indiana, 229 U. S. 26, 29. Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the stale legislature was wrong in its facts. Adams v Milwaukee, 228 US. 572, 583. If we might trust popular speech in some states it was right - but it is enough that this Court has no such knowledge of local conditions as to be able to say that it was manifestly wrong. " 36. Reliance was also placed on the observations made in Keokee Consolidated Coke Co. Vs. Tay/o~.

which are as follows: "It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by 6. 234 U. S. 224 (1913). RESTAURANTS ASSN. [SURlt>! _DER SINGH NIJJAR, J. ] thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear. " 37. The next judgment relied upon by the appellants is 7 8 Radice Vs. People of the State of New York, in which the New York Statute was challenged, as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p. m. and 6 a. m.

The Court upheld the legislation in the following words : "Nor is the statute vulnerable to the objection that it constitutes a denial of the equal protection of the laws. The points urged under this head are (a) that the act discriminates between cities of the first and second class and other cities and communities; and (b) excludes from o its operation women employed in restaurants as singers and performers, attendants in ladies' cloak rooms and parlors, as well as in lunch rooms or restaurants conducted by employees solely for the benefit of their employees. The limitation of the legislative prohibition to cities of the first and second class does not bring about an unreasonable and arbitrary classification. Packard v Banton, ante, 140; Hayes v Missouri, 120 U. S. 68. Nor is there substance in the contention that the exclusion of restaurant employees of a special kind, and of hotels and employees' lunch rooms renders the statute obnoxious to the Constitution.

The statute does not present a case where some persons of a class are selected for special restraint from which others of the same class are left free (Connolly v Union Sewer Pipe Co. , 184 U. S. 540, 564); but a case where all in the same class of work are included in the restraint. Of course, the mere fact of classification is not enough to put a statute beyond reach 7. 264 U. S. 292 (1924). of equality provision of the Fourteenth Amendment. Such classification must not be "purely arbitrary, oppressive or capricious". American Sugar Refining Co. V Louisiana, 179 U. S. 89, 92. But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some degree. The inequality produced, order to 8 counter the challenge of the constitution must "actually and palpably unreasonable and arbitrary. " The U. S. Court then relied upon the observations made in Joseph Patsone's case (supra), Keokee Consolidated Coke Co.

case (supra) which we have already noticed. 38. Further, learned counsel supported the submissions by relying upon the case of Mohd. Hanif Quareshi Vs. State of 8 o Bihar, wherein the court held as under: "......... The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to · problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of Constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. " 39.

On the basis of the aforesaid extracts, learned counsel submitted that the classification between the exempted establishments and prohibited establishment is also based on 8. AIR 1958 SC 731. "Degree of Harm". The legislature is the best judge to measure the degree of harm and make reasonable classification. 40. Coming to the next factor- Regulatory Feasibility, which, according to the learned senior counsel, supports the validity of the classification. It was submitted that the import of 8 the impugned enactment is not that, what is prohibited in establishments under Section 33A is to be permitted in establishments under Section 338. It is submitted by the appellants that the acts which are degrading, dehumanising and facilitating of gender violence in society do not cease to be so simply by virtue of it being made exclusively available to an economically stronger sections of society.

It is the submission of the appellants that the State has already made extensive regulatory provisions under various enactments. This relates to . the grant of nature of license, terms and conditions of such licence, perfonnance permits. All these regulatory measures are with a view to cure social evils. The impugned enactment, according to-the appellants, is a form of an additional regulation. It is justified on the ground that the existing system of licenses and pennits is not sufficient to deal with the problem of ever increasing "dance bars". Relying on the observations 9 made by this Court in S. P. Mittal Vs. Union of India & Ors. it was submitted by the appellants that it is the prerogative of the Government to decide if certain forms of regulation are insufficient, to provide for additional regulation. Reliance was also placed on the observations made in the case of Radice Vs.

People of the State of New York (supra) which are as under:- "The basis of the first contention is that the statute unduly and arbitrarily interferes with the liberty of two adult persons to make a contract of employment for themselves. The answer of the state is that night work of kind prohibited, so injuriously threatens to impair their peculiar and natural functions, and so exposes them to the dangers and 9. (1983) 1 sec s1. menaces incident to night life in large cities, that a statute prohibiting such work falls within the police power of the state to preserve and promote the public health and welfare. The legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant. .....

The injurious consequences were thought by the legislature to bear more heavily against women than men and considering their delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing. Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.

The state legislature here determined that the night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination". 41. Relying on the aforesaid, it is submitted that exempted establishments as understood by Section 338 are gymkhanas, three starred or above hotels. In order to be considered three stars or above establishments, such establishments have to meet greater degrees of scrutiny, both from Government and from private associations (hoteliers, reviewers etc). In fact, such establishments generally maintain standards higher than RESTAURANTS ASSN. (SURIND_ER SINGH NIJJAR, J. ] the standards expected of them under the regulation . . Therefore, the regulation of such establishments is significantly easier, as opposed . to the prohibited establishments.

These establishments function, according to the appellants, to a greater degree, outside the constant scrutiny of the law. It is also pointed out that it is significantly easier to police the exempted establishments, which at present are six in number, than attempting to police the much greater number of prohibited establishments. It is also pointed out that in cases wnere an exempted establi. shment is found carrying out activities prohibited in S. 33A, it is incumbent on the relevant authority to revoke the permission for such acts; Therefore, it was su. bmitted that the significant difference in feasibility of regulation i~ ;another basis for classifying prohibited establishments. The High Court, according to the counsel, failed to examine the two provisions in•a··proper perspective. 42. The next submission of the appellants is that "the objective of the Act is an expression of the Obligation on the . State to secure safety, social ordet, public order and dignity of women.

" It is submitted that a bare perusal of tlie Preamble of the amending Act and the State. t\ient of Objects and Reasons ·~ would make it clear that the St~;te enacted the legislation only after receipt of complaints from various social organiZations as Well as from various individuals. The Preamble makes it clear that the legislature had enough material to show that the performance of dance in the $aid bars gives rise to exploitation of women, and further that the performance of dances in eating houses, permit rooms or be~r bars are derogatory to the dignity ofwomen and are likely to d~prave, corrupt or injure the public morality or morals. The High Court ought to have considered the Statement of Objects and Reasons and Preamble of the Act to discern the true intention of the legislature.

In support of the submission that the Court ought to have looked at the objects and reasons, reliance is placed on the observations of this Court in Shashikant Laxman Kale (supra), wherein it is observed as follows: · "It is first necessary to discern the true purpose or object of the impugned enactment because it is only With reference to the true object of the enactment that =ttre existence of a rational nexus of the differentia on which the ' . classification is based, with the object sought to be achieved by the enactment, can be ,examined to test the validity of the classification .... • 43. It was reiterated that the High Court has given a very. restrictive interpretation to the phrase "exploitation of women". The expression would include not only the women who dance in the prohibited establishments but also the waitresses who work in the same establishments.

It would also include the effect of the dance bar on gender rel'ations of not just the bar danqer, but for the women around the area. The High Court, according to the appellants, failed to take into account the object that the . statutory provisions are in respect of an activity ofexploitation ·· of women conducted for financial gain by bar owners and their intermediaries. It is emphasised that the issue involved in this matter is not merely about dancing in the bars, but involves larger issues of dignity of women, the destruction of environments and circumstances where it is profitable to keep women vulnerable. In such circumstances, the law is being used as a tool for dealing with the evils of human trafficking and prostitution, rather than simply prohibiting such activity without the administrative resources to effectively implement such prohibition.

It is further submitted that the State is bound by this duty to protect the interest of its citizens especially its weaker sections under the Constitution. The legislation is sought to be justified on the touchstone of Article 23, Article 39(e) and Article 51A(e) of the Constitution. The action of the Government is also justified on the ground that it is necessary to emancipate women from male dominance as women in dance bars are looked upon as objects of commerce. It is emphasised that the bar dancing is obscene, vulgar and casts considerable amount of negative influence on institutions like family, society, youth etc. 44. Mr. Gopal Subramanium also emphasised that the . State cannot shut its eyes to the larger social problems arising out of bar dancing which is uncontrolled and impossible to regulate. He sought to justify the aforesaid submission by taking support from some observations made in Paris Adult Theatre I Et. Al Vs. Lewis R.

Slaton, District Attorney, Atlanta Judicial 10 Circuit, Et. Al. This case provides, according to the learned senior counsel, a discussion on relation with obscenity and pornography and the duty of the state to regulate obscenity. Reliance is placed on the following observations at pp 58, 60, 63, 64 and 69. "It is not for us to resolve empirical uncertainties underlying ~tate legislation, save in exceptional Case where that· legislation plainly impinges upon rights protected by the Constitution itself. " "Although there is no conclusive proof of a connection between anti social behaviour and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality. " Ro. th v. United States, 354 U. S.. , at 485, quoting Chaplinsky v New Hampshire, 315 us. 568, 572 (1942).

" "The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and 10. 413 U. S. 49 [1973]. distorted by crass commerciar exploitation of sex. Nothing in the Constitution prohibits a state from reaching such a conclusion and action on it legislatively simply because . there is no conclusive evidence or empirical data. " "The states have the power to make a morally neutral judgment that public exhibition of obscene materiat or commerce in such material has a tendency to injure community as a whole, to endanger the public safety or to jeopardise in Mr. Chief Justice Warren's words, the States' "right ... to maintain a decent society". Jacobellis v Ohio 378 US at 199 (dissenting opinion)" 45. It is further pointed out that the decision to ban obscene ..

dancing is also in consonance with Convention on the Elimination of All Forms of Discrimination Against Women CCEADAW). Learned senior counsel further submitted that establishments covered by Section 33A have a greater direct and indirect effect on the exploitation of women, and the resultant and causative violence against women. It is submitted that the degree of effect on the subjects covered by the objects of the enactment are greater than any effect that might be attributable to exempted establishments. · 46. In any event, exempted establishments will also not be permitted to carry out suc! J performances, but -are left to the operation of parallel regulation simply because they are significantly fewer in number and their very nature facilitates effective regulation.

Therefore, according to the learned senior counsel, the impugned enactment is not discriminatory as it makes a reasonable legislative classification which has a direct nexus with the object sought to be achieved by the Act. In supP11rh of the proposition that there is a reasonable classification and that the State has the power to make such classification, reliance is placed on the observations made by this Court in Kedar Nath Bajoria & Ant. Vs. The State of West 1 Bengaf1 which are as follows: "Now it is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the 8 power of distinguishing and classifying persons or things for the purpose of legislation.

To put it simply all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentia which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the intelligible differentia having a reasonable relation to the legislative purpose. " 47. Reliance is also placed on the observations of this Court in Ram Krishna Dalmia Vs. Justice S. R. Tendolkar (supra) for outlining the scope and ambit of Article 14 of the Constitution of India. 48.

Finally, it is submitted that the Government had various documents and reports based on which they felt it important to regulate the menace of trafficking and to uphold the dignity of women. On the basis of the aforesaid material, it is submitted that the Government of Maharashtra enacted the amendment in good faith and knowledge of existing conditions after recognizing harm, confined the restrictions to cases where harm to women, public morality etc. was the highest. The High Court has failed to appreciate all the documentary evidence placed and gave a narrow meaning to the object of the Act which is in the larger interest of the women and society. 11. 1954 SCR 30. Article 19(1)(ql - 49. With regard to whether there is any infringement of rights under Article 19(1 )(g), it is submitted by the learned senior counsel that the fundamental right under Article 19(1)(g) to practice any profession. trade or occupatior. is subject to restrictions in Article 19(6).

Therefore, by prohibiting dancing under Section 33A, no right of the bar owners are being infringed. The curbs imposed by Sections 33A and 338 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 12 Vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. Reference was also made to Municipal Corporation of the City of 13 Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr. , wherein this Court gave a wide meaning to "interest of general public" and observed as follows : "The expression in the interest of genera