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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2705 OF 2006

State of Maharashtra & Anr.

...Appellants

VERSUS

Indian Hotel & Restaurants Assn. & Ors.

...Respondents

WITH

CIVIL APPEAL NO.2704 OF 2006

State of Maharashtra & Ors. Etc. Etc.

..Appellants

VERSUS

Ramnath Vishnu Waringe Etc. Etc.

...Respondents

WITH

CIVIL APPEAL NO._5504_____ OF 2013

[Arising out of S.L.P. (C) No.14534 of 2006]

Ghar Hakka Jagruti Charitable Trust

...Appellant

VERSUS

State of Maharashtra & Ors.

...Respondents

J U D G M E N T

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SURINDER SINGH NIJJAR,J.

1.Leave granted in SLP (C) No.14534 of 2006.

2.These civil appeals seek to challenge common judgment

and final order dated 12

th

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

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

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Cinemas) and Performances for Public Amusement including

Melas & Tamashas, 1960” (hereinafter ‘the Rules’) were

enacted to regulate and maintain discipline in places of

public amusement, melas etc.

4.In 1986, orchestra and dance in hotels was permitted to

be performed pursuant to the Rules and such institutions

functioned under terms and conditions laid down therein.

However, several cases relating to violation of the terms

and conditions of performance licences came to be

registered. It is claimed that 20,196 cases were registered

under Section 33(w), 110 and 117 of the Act from the year

2000 till 2005. Also, various cases of minor girls being

rescued from dance bars were reported during the said

period 2002-2005. The appellants have referred to the

case histories from the Government 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 10

th

December, 2002 passed resolution No. REH

012002/153/SE-5, noting therein :

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"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 16

th

July, 2004. In this letter, the suggested

regulations were summarized as follows:

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a. There should be restrictions on the attire of the

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 6

th

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

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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 10 girl 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.

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c. Copies of complaints of Social Organizations

against dance bars.

d. Copies of FIRs of cases registered in relation 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 socio-economic 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 entire

process; and that the environment of the dance bars was

found to have negative impact on the physical and mental

health of the minor 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

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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. The 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 Assembly

on 30

th

March, 2005. A detailed reply was given by Shri

R.R. Patil, Hon’ble Dy. Chief Minster to the same, on 21

st

July, 2005. Taking stock of the entire situation, the State

Government came to a tentative opinion that performance

of dances in eating houses, permit rooms or beer bars in

an indecent manner is derogatory to the dignity of women

and is likely to deprave, corrupt and/or injure public

morality. It was evident on the basis of the material

available to the Government that permit rooms or beer

bars licensed under the relevant rules, were indulging in

exploitation of women by permitting the performance of

dances in an indecent obscene or vulgar manner. The

Government, therefore, considered it expedient to prohibit

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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 14

th

July, 2005. The Bill was passed by the

Legislative Assembly on 21

st

July, 2005 and by the

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Legislative Council on 23

rd

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 14

th

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 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 1

st

petitioner is a trust registered under

the Public Trust Act, working with sex workers

in the Malvani area of Malad in Mumbai. The

2

nd

petitioner is the Ekta Self Group which

consists of 10 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

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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 33B are arbitrary under Article 14 as they

provide for different standards of morality 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

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expression and that the impugned enactment is an unreasonable restriction and it is

not by protected by Article 19(2).

·That there is an unreasonable restriction on right to freedom of

profession as the State Government permitted and granted

licenses for running such establishments being

Res Commercium and that it deprives the bar owners of their

right to carry on business and bar dancers the right to carry on

their profession.

·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 women.

·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

which 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

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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(I) (g) there is no absolute

right to conduct trade or profession and that the same is subject to public

order, decency and morality and hence the restriction is reasonable and justified.

·That there is no violation of Article 21 as special cell has

been constituted by Women and Child Welfare Department to train and assist the

"bar girls" in availing benefits of the various Government Schemes for employment and providing

alternative dignified vocations.

16.After considering the aforesaid arguments of both the

sides, the High Court has, inter alia, held that the type of dancing in both

categories of establishments differs and while the difference is not capable of precise legislative

definition, it is sufficient to constitute intelligible differentia. However, the fact of different types of

dancing being performed bears no nexus with the object sought to be achieved, which, as

understood by the Bombay High Court, was limited to the exploitation of women dancers.

Consequently, the operation of the impugned enactment is discriminatory.

17.With these 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 the 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 33B of the Bombay Police Act:

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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

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

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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.

33B. Subject to the other provisions of this Act, or

any other law for the time being in force, nothing in

section 33A shall apply to the holding of a dance

performance in a drama theatre, cinema theatre and

auditorium; or sports club or gymkhana, where entry

is restricted to its members only, or a three starred

or above hotel or in any other establishment or class

of establishments, which, having regard to (a) the

tourism policy of the Central or State Government for

promoting the tourism activities in the State; or (b)

cultural activities, the State Government may, by

special or general order, specify in this behalf.

Explanation.--For the purposes of this section, "sports

club" or "gymkhana" means an 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.”

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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 Sub-

section (1) of Section 33 of the Bombay Police Act,

1951 have granted licences for holding dance

performance in the area under their respective

charges in the State. The object of granting such

performance licence is to hold such dance

performance for public amusement. It is brought to

the notice of the State 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

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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 pick-up 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 hotel; or in any other establishment or class

establishments which the State Government may

specify having regard to tourism policy for promotion

of tourism in the State or cultural activities, are not

barred but all such establishments shall be required

to obtain performance licence in accordance with the

said rules, for holding a dance performance.

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3. The Bill is intended to achieve the following

objectives.”

Preamble

“Whereas the Commissioners of Police, District Magistrates

and certain other Officers, have granted performance

licences for holding dance performance;

And whereas the object of granting such performance

licences is to hold such dance performance for public

amusement;

And whereas it is brought to the notice of the State

Government 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.”

Page 19 - 19 -

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.

22.Learned senior counsel have made submissions

confined only to the issue as to whether Sections 33A and

33B 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

Page 20 - 20 -

sought to be achieved. It is submitted that the impugned

order suffers from flawed reasoning. The classification

made between establishments under Sections 33A and

33B 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 Subramanium has listed the

differences factored into the classification made by the

impugned enactment. According to the learned senior

counsel, the impugned enactment is based on intelligible

differentia which could be categorized under the following

broad heads:

Page 21 - 21 -

(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 establishments and the banned

establishments. Therefore, it cannot be said that the

classification is palpably arbitrary. In support of the

Page 22 - 22 -

submissions, the learned senior counsel relied on the

observations made by this Court in Shashikant Laxman

Kale & Anr. Vs. Union of India & Anr.

1

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

1

(1990) 4 SCC 366

2

(2003) 9 SCC 358

Page 23 - 23 -

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 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

Page 24 - 24 -

victims family against illicit relations with bar dancers;

complaints of social organizations 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 of Stat e of Uttar

Pradesh Vs. Kaushailiya & Ors.

3

, 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.

3

AIR 1964 SC 416

Page 25 - 25 -

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

Page 26 - 26 -

submissions, reliance was placed upon Prayas and

Shubhada Chaukar Reports.

33.It was submitted that the High Court erroneously

ignored the contents of the reports extracted above.

34.Now coming to the next head: “Justifying the

classification on the criterion of “Degree of Harm.” The

appellants emphasised that the characteristics of the

dancing that is sought to be prohibited have, to a greater

degree than the activities that may be comparable at first

blush, created an atmosphere where physical and

emotional violence to women was both profitable and

normalized. It is, therefore, rational to classify these

establishments as a separate class based on the degree of

harm that they trigger. Support for this submission is

sought from the observations made by this Court in Ram

Krishna Dalmia Vs. Justice S.R. Tendolkar

4

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

4

AIR 1958 SC 538

Page 27 - 27 -

the case of Joseph Patsone Vs. Commonwealth of

Pennsylvania

5

. 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 14

th

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 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.

5

232 U.S. 138 (1914)

Page 28 - 28 -

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. Taylor

6

, 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 thinking up and

enumerating other instances to which it might have

been applied equally well, so far as the court can

see. That is for the legislature to judge unless the

case is very clear."

37.The next judgment relied upon by the appellants is

Radice Vs. People of the State of New York

7

, 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

6

234 U.S.224 (1913)

7

264 U.S. 292 (1924)

Page 29 - 29 -

(b) excludes from 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 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 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 Bihar

8

, wherein the court held as under:

8

AIR 1958 SC 731

Page 30 - 30 -

"………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 “Degree of Harm”. The legislature is the best judge to

measure the degree of harm and make reasonable

classification.

40.Coming to the next factor– Regulatory Feasibility,

which, according to the learned senior counsel, supports

the validity of the classification. It was submitted that the

import of the impugned enactment is not that, what is

prohibited in establishments under Section 33A is to be

permitted in establishments under Section 33B. It is

submitted by the appellants that the acts which are

degrading, dehumanising and facilitating of gender

violence in society do not cease to be so simply by virtue

Page 31 - 31 -

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, performance 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 permits is

not sufficient to deal with the problem of ever increasing

"dance bars". Relying on the observations made by this

Court in S.P. Mittal Vs. Union of India & Ors.

9

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 menaces incident

to night life in large cities, that a statute prohibiting

9

(1983) 1 SCC 51

Page 32 - 32 -

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 33B are

gymkhanas, three starred or above hotels. In order to be

considered three stars or above establishments, such

establishments have to meet greater degrees of scrutiny,

both from Government and from private associations

(hoteliers, reviewers etc). In fact, such establishments

generally maintain standards higher than the standards

Page 33 - 33 -

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 where an exempted establishment 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 submitted that the significant

difference in feasibility of regulation is 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 order, public order and

dignity of women.” It is submitted that a bare perusal of

the Preamble of the amending Act and the Statement of

Page 34 - 34 -

Objects and Reasons would make it clear that the State

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 said bars gives rise to

exploitation of women, and further that the performance

of dances in eating houses, permit rooms or beer bars are

derogatory to the dignity of women and are likely to

deprave, 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 the 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….”

Page 35 - 35 -

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

relations of not just the bar dancer, but for the women

around the area. The High Court, according to the

appellants, failed to take into account the object that the

statutory provisions are in respect of an activity of

exploitation of women conducted for financial gain by bar

owners and their intermediaries. It is emphasised that the

issue involved in this matter is not merely about dancing

in the bars, but involves larger issues of dignity of women,

the destruction of environments and circumstances where

it is profitable to keep women vulnerable. In such

circumstances, the law is being used as a tool for dealing

with the evils of human trafficking and prostitution, rather

than simply prohibiting such activity without the

administrative resources to effectively implement such

prohibition. It is further submitted that the State is bound

by this duty to protect the interest of its citizens especially

its weaker sections under the Constitution. The legislation

Page 36 - 36 -

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 Circuit, Et. Al

10

. 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.

10

413 U.S. 49 [1973]

Page 37 - 37 -

“It is not for us to resolve empirical uncertainties

underlying state 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." Roth 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 distorted by crass commercial

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

material 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 (CEADAW) . Learned senior counsel further

Page 38 - 38 -

submitted that establishments covered by Section 33A

have a greater direct and indirect effect on the

exploitation of women, and the resultant and causative

violence against women. It is submitted that the degree of

effect on the subjects covered by the objects of the

enactment are greater than any effect that might be

attributable to exempted establishments.

46.In any event, exempted establishments will also not be

permitted to carry out such performances, but are left to

the operation of parallel regulation simply because they

are significantly fewer in number and their very nature

facilitates effective regulation. Therefore, according to the

learned senior counsel, the impugned enactment is not

discriminatory as it makes a reasonable legislative

classification which has a direct nexus with the object

sought to be achieved by the Act. In support 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 & Anr. Vs. The State of West

Bengal

11

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

11

1954 SCR 30

Page 39 - 39 -

character and universal in application and that the

State is no longer to have the 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

Page 40 - 40 -

and gave a narrow meaning to the object of the Act which

is in the larger interest of the women and society.

Article 19(1)(g) -

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 occupation is

subject to restrictions in Article 19(6). Therefore, by

prohibiting dancing under Section 33A, no right of the bar

owners are being infringed. The curbs imposed by Sections

33A and 33B only restrict the owners of the prohibited

establishments from permitting dances to be conducted in

the interest of general public. The term “interest of

general public” is a wide concept and embraces public

order and public morality. The reliance in support of this

proposition was placed on State of Gujarat Vs. Mirzapur

Moti Kureshi Kassab Jamat & Ors.

12

Reference was

also made to Municipal Corporation of the City of

Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai &

Anr.

13

, wherein this Court gave a wide meaning to

“interest of general public” and observed as follows :

12

AIR 2006 SC 212

13

(1986) 3 SCC 20

Page 41 - 41 -

“The expression in the interest of general public' is of

wide import comprehending public order, public

health, public security, morals, economic welfare of

the community and the objects mentioned in Part IV

of the Constitution.”

50.Factually, it was emphasised that the history of the

dance bars and the activities performed within the dance

bars show that they are not set up with an intention to

propagate art, exchange ideas or spread knowledge. It is

submitted that the dance performances in these

prohibited establishments were conducted in obscene and

objectionable manner to promote the sale of liquor.

Therefore, the main activity conducted in these prohibited

establishments is not a fundamental right. There is no

fundamental right in carrying business or sale in liquor and

Government has power to regulate the same. There is also

overwhelming evidence on record to show that girls have

not opted for this profession out of choice but have been

brought into this by middle men or other exploitative

factors. There is no free and informed choice being made

by the bar dancers. This is sought to be supported by the

observations in the Prayas Report where it is stated :

“In conclusion, the study has shown that most

women did not know the nature of their employment

at the time of getting into dance bars for work, and

they were brought into this work through middle

men. The basic elements of trafficking were found to

Page 42 - 42 -

be present in the process of entry, though it may not

have been in its overt form. Having come here and

seeing no other options, they had no choice but to

continue in this sector……”.

51.The SNDT Report also shows that only 17.40% of the

bar girls are from State of Maharashtra. The bar owners

have been exploiting the girls by sharing the tips received

and also capitalizing on their performance to serve liquor

and improve the sales and business. Again reliance is

placed on the observations made in Prayas Report at page

47 which is as under :

"The women working as either dancers or waiters

were not paid any salary, but were dependant on tips

given by customers in the bar, which varies from

day-to-day and from women to another. This money

is often shared with the bar owner as per a fixed

ratio ranging from 30 to 60 percent."

52.The same conclusion is also found in Shubadha

Chaukar Report where it is stated that :

"Tips given by enamoured customers are the main

income of girls working in the bars. Normally dancers

do not get a salary as such. The bar owner makes it

look like he is doing a favour by allowing them to

make money by dancing. So he does not give them a

salary. On the contrary a dancer has to hand over to

the owner 30 to 40 per cent of what she earns. This

varies from bar to bar.”

53.On the basis of the above, it was submitted that the bar

owners with a view to attract customers introduced dance

Page 43 - 43 -

shows where extremely young girls dance in an indecent,

obscene and vulgar manner which is detrimental to the

dignity of women and depraves and corrupt the morality.

54.The second limb of the submission is that the

prohibition does not bar the restaurant owners or the beer

parlour owners from running their respective

establishments i.e. restaurant business, beer parlours etc.

What is being prohibited is only the dancing as a form of

entertainment in such establishments. The bar owners can

still conduct entertainment programmes like music,

orchestras etc which are not prohibited. It is submitted

that loss of income cannot be a reason for the bar owners

to claim that their right to trade and profession is being

infringed. This submission is sought to be supported by the

observations of this Court in T.B. Ibrahim Vs. Regional

Transport Authority, Tanjore

14

. In this case it is

observed by this Court as follows:

“……………… ..There is no fundamental right in a

citizen to carry on business wherever he chooses and

his right must he subject to any reasonable

restriction imposed by the executive authority in the

interest of public convenience. The restriction may

have the effect of eliminating the use to which the

stand has been put hitherto but the restriction

cannot be regarded as being unreasonable if the

authority imposing such restriction has power to do

so. Whether the abolition of stand was conducive to

14

[1953] 4 SCR 290

Page 44 - 44 -

public convenience or not is a matter entirely for the

transport authority to judge, and it is not open to the

court to substitute its own opinion for the opinion of

the Authority, which is in the best position, having

regard to its knowledge of local conditions to

appraise the situation".

55.It was next submitted that the High Court wrongly

concluded that the activity of young girls/women being

introduced as bar dancers is not Res Extra Commercium .

Such activity by the young girls is a dehumanising

process. In any event, trafficking the girls into bar dancing

completely lacks the element of conscious selection of

profession. An activity which has harmful effects on the

society cannot be classified as a profession or trade for

protection under Article 19(1)(g) of the Constitution. Such

dances which are obscene and immoral would have to be

considered as an activity which is 'Res Extra

Commercium'. The High Court has wrongly concluded

otherwise. Reliance is also placed on the observations

made by this Court in the case of State of Bombay Vs.

R.M.D. Chamarbaugwala & Anr.

15

In this case, it was

observed by this Court that activity of gambling could not

be raised to the status of trade, commerce or intercourse

and to be made subject matter of a fundamental right

guaranteed by Article 19(1)(g). Similarly, in this case the

15

AIR 1957 SC 699

Page 45 - 45 -

dance bars having negative impact on family, women,

youth and has been augmenting the crime rate as well as

trafficking and exploitation of women. Reference was

again made to the various reports and studies to show the

disruptive opinion of the dance bars in the families of the

persons employed in such dance bars. Reliance was

placed on the judgment of this Court in Khoday

Distilleries Ltd. & Ors. Vs. State of Karnataka &

Ors.

16

, in support of the submission that the trading in

liquor is not a fundamental right. This Court further

observed that trafficking in women or in slaves or in

counterfeit coins or to carry on business of exhibiting or

publishing pornographic or obscene films and literature is

not a fundamental right as such activities are vicious and

pernicious. Reliance was placed on the following

observations:

“The correct interpretation to be placed on the

expression "the right to practice any profession, or to

carry on any occupation, trade or business" is to

interpret it to mean the right to practice any

profession or to carry on any occupation, trade or

business which can be legitimately pursued in a

civilised society being not abhorrent to the generally

accepted standards of its morality. ………This is apart

from the fact that under our Constitution the implied

restrictions on the right to practice any profession or

to carry on any occupation, trade or business are

made explicit in clauses (2) to (6) of Article 19 of the

Constitution and the State is permitted to make law

for imposing the said restrictions.”

16

(1995) 1 SCC 574

Page 46 - 46 -

“It does not entitle citizens to carry on trade or

business in activities which are immoral and criminal

and in articles or goods which are obnoxious and

injurious to health, safety and welfare of the general

public, i.e., res extra commercium, (outside

commerce). There cannot be a business in crime. (c)

Potable liquor as a beverage is an intoxicating and

depressant drink which is dangerous and injurious to

health and is, therefore, an article which is res extra

commercium being inherently harmful. A citizen has,

therefore, no fundamental right to do trade or

business in liquor. Hence the trade or business in

liquor can be completely prohibited.”

56.The aforesaid observations were reiterated in State of

Punjab & Anr. Vs. Devans Modern Breweries Ltd. &

Anr.

17

Relying on the aforesaid observations, it was

submitted that in the banned establishments, the dance is

performed amidst consumption of liquor and the State has

every right and duty to regulate the consequence

emanating from such circumstances. In support of this

submission, the appellants relied on the judgment of the

United States Supreme Court in New York State Liquor

Authority Vs. Dennis BELLANCA, DBA The Main

Event, Et Al.

18

. In this case, the question raised was

about the power of a State to prohibit topless dancing in

an establishment licensed by State to serve liquor. It was

claimed that the prohibition was violative of United States

Constitution. U.S. Supreme Court, upon consideration of

the issue, observed as follows:

17

(2004) 11 SCC 26

18

452 U.S. 714 (1981)

Page 47 - 47 -

"In short, the elected representatives of the State of

New York have chosen to avoid the disturbances

associated with mixing alcohol and nude dancing by

means of reasonable restriction upon establishments

which sell liquor for on-premises consumption. Given

the "added presumption in favour of the validity of

the state regulation" conferred by Twenty first

Amendment, California v LaRue, 409 U. S., at 118,

we cannot agree with the New York Court of Appeals

that statute violates United States Constitution.

Whatever artistic or communicative value may

attach to topless dancing is overcome by State's

exercise of its broad powers arising under the

Twenty-first Amendment. Although some may

quarrel with the wisdom of such legislation and may

consider topless dancing a harmless diversion, the

Twenty first Amendment makes that a policy

judgment fin- the state legislature, not the courts."

57.It was also submitted that in the present case the dance

is conducted in an obscene manner and further the dance

bars eventually happen to be pick up locations that also

propagate prostitution in the area, which is sought to be

prevented by the legislation. The appellants also relied on

the judgment in Regina Vs. Bloom

19

. In this case, the

appellants were proprietors of the clubs who were charged

with keeping a disorderly house, which arose out of

matters that occurred in course of strip tease

performances. The Court of Criminal Appeal (England) held

that as regards the cases in which indecent performances

or exhibition are alleged, a disorderly house is a house

conducted contrary to law and good order in that matters

19

1961 3 W.L.R. 611

Page 48 - 48 -

performed or exhibited are of such a character that their

performance or exhibition in a place of common resort

amounts to an outrage of public decency or tends to

corrupt or deprave the dignity of women and public

morality. Therefore in the present circumstances, the

State, in the interest of dignity of women, maintenance of

public order and morality has banned dances in such

establishments where regulation is virtually impossible.

Since the obscene and vulgar dancing is a res extra

commercium, the establishments cannot claim a

fundamental right to conduct dance therein.

58.It is further submitted that the legislation also does not

infringe any fundamental right of the bar dancers. The

prohibition contained under Section 33A is not absolute

and the dancers can perform in exempted establishments.

This apart, the dancers are also free to dance in

auditoriums, at parties, functions, musical concerts, etc.

According to the appellants, another important facet of the

same submission is that the rights of the bar girls to dance

are subject to the right of the bar owners to run the

establishment. In other words, the right of the bar girls are

derivative and they do not have absolute right to dance as

Page 49 - 49 -

a vocation or profession in the dance bars. This right would

be automatically curtailed in case the dance bar is closed

for economic reasons or as a result of licence being

cancelled. In support of the submission, the appellants

relied on a judgment of this Court in Fertilizer

Corporation Kamgar Union (Regd.), Sindri & Ors. Vs.

Union of India & Ors.

20

in which it is held as under :-

"14. The right of the petitioners to carry on the

occupation of industrial workers is not, in any

manner, affected by the impugned sale. The right to

pursue a calling or to carry on an occupation is not

the same thing as the right to work in a particular

post under a contract of employment. If the workers

are retrenched consequent upon and on account of

sale, it will be open to them to pursue their rights

and remedies under the industrial laws. But the point

to be noted is that the closure of an establishment in

which a workman is for the time being employed

does not by itself infringe his fundamental right to

carry on an occupation which is guaranteed under

article 19(1)(g) of the constitution.”

59.Relying on the above, it is submitted that there is no

absolute right for the bar girls to be employed in the dance

bars and that the right to work would be subject to the

continuation of the establishment. Hence, it is a derivative

right emanating from the right of the dance bar owners to

run the establishments subject to restrictions imposed.

20

AIR 1981 SC 344

Page 50 - 50 -

60.It is next submitted that the right to trade and

profession is subject to reasonable restriction under Article

19(6) of the Constitution. The decision to impose the ban

was to defend the weaker sections from social injustice

and all forms of exploitation. In the instant case, the moral

justification is accompanied with additional legitimate

state interest in matters like safety, public health, crimes

traceable to evils, material welfare, disruption of cultural

pattern, fostering of prostitution, problems of daily life and

multiplicity of crimes. Learned senior counsel for the

appellants strongly relied upon the Statement of Objects

and Reasons and the Preamble of the amending Act to

reiterate that the State is enjoined with the duty to protect

larger interest of the society when weaker sections are

being exploited as objects of commerce and when there is

issue of public order and morality involved.

61.The appellants have relied on a number of judgments of

this Court to illustrate the concept of “reasonable

restriction” and the parameters within which the court will

examine a particular restriction as to whether it falls within

the ambit of Article 19(6). Reference was made to the

State of Madras Vs. V.G. Row

21

, B.P. Sharma Vs.

21

AIR 1952 SC 196

Page 51 - 51 -

Union of India & Ors.

22

, M.R.F. Ltd. Vs. Inspector

Kerala Govt. & Ors.

23

. Since the principles are all

succinctly defined, we may notice the observations made

by this Court in B.P. Sharma’s case (supra) .

"The main purpose of restricting the exercise of the

right is to strike a balance between individual

freedom and social control. The freedom, however,

as guaranteed under article 19(1)(g) is valuable and

cannot be violated on grounds which are not

established to be in public interest or just on the

basis that it is permissible to do so. For placing a

complete prohibition on any professional activity

there must exist some strong reason for the same

with a view to attain some legitimate object and in

case of non-imposition of such prohibition, it may

result in jeopardizing or seriously affecting the

interest of the people in general. If it is not so, it

would not be a reasonable restriction if placed on

exercise of the right guaranteed under article 19 (1)

(g). The phrase ''in the interest of the general public"

has come to be considered in several decisions and it

has been held that it would comprise within its ambit

interests like public health and morals (refer to State

of Maharashtra v Himmatbhai Narbheram Rao (AIR

1970 SC 1157), economic stability On consideration

of a catena of decisions on the point, this Court, in a

case reported in 'IMF Ltd v Inspector, Kerala

Government (1998) 8 SCC 227 has laid certain tests

on the basis of which reasonableness of the

restriction imposed on exercise of the right

guaranteed under Article 19 (1)(g) can be tested.

Speaking for the Court, Saghir Ahmad (as he then

was), laid down such considerations as follows:

"(1) While considering the reasonableness of the

restrictions, the court has to keep in mind the

directive principles of State policy.

(2) Restrictions must not be arbitrary or of an

excessive nature so as to go beyond the requirement

of the interest of general public.

(3) In order to judge the reasonableness of the

restrictions, no abstract or general pattern or a fixed

22

(2003) 7 SCC 309

23

(1998) 8 SCC 227

Page 52 - 52 -

principle can be laid down so as to be of universal

application and the same will vary from case to case

as also with regard to the changing conditions,

values of human life, social philosophy of the

Constitution, prevailing conditions and the

surrounding circumstances.

(4) A just balance has to be struck between the

restrictions imposed and the social control envisaged

by clause (6) of article 19.

(5) Prevailing social values as also social needs which

are intended to be satisfied by restrictions have to be

borne in mind. (see State of U.P. v Kaushailiya)

(6) There must be a direct and proximate nexus or a

reasonable connection between the restrictions

imposed and the object sought to be achieved. If

there is a direct nexus between the restrictions and

the object of the Act, then a strong presumption in

favour of constitutionality of the Act will naturally

arise.”

62.Thereafter, Mr. Subramanium has cited State of

Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat

(supra) in support of the submission that Statement of

Objects and Reasons would be relevant for considering as

to whether it is permissible to place a total ban under

Article 19(6). After considering the principles laid down

earlier, this court concluded as under:-

“We hold that though it is permissible to place a total

ban amounting to prohibition on any profession,

occupation, trade or business subject to satisfying

the test of being reasonable in the interest of general

public, yet, in the present case banning slaughter of

cow progeny is not a prohibition but only a

restriction.”

63.Relying on the aforesaid, it was submitted that while

Page 53 - 53 -

considering the reasonableness, the court should consider

the purpose of restriction imposed, extent of urgency,

prevailing conditions at the time when the restriction was

imposed. According to the appellants, in the instant case,

the social order problems in and around the dance bars

had reached such heights which were beyond the tolerable

point. The tests laid down earlier were reiterated in M.J.

Sivani & Ors. Vs. State of' Karnataka & Ors.

24

In this

case, it is observed as follows :

“18…………. In applying the rest of reasonableness,

the broad criterion is whether the law strikes a

proper balance between social control on the one

hand and the right of individual on the other hand.

The court must take into account factors like nature

of the right enshrined, underlying purpose of the

restriction imposed, evil sought to be remedied by

the law, its extent and urgency, how far the

restriction is or is not proportionate to the evil and

the prevailing conditions at that time.”

64.Relying on the aforesaid, it was submitted that the

larger issue involved was the trafficking of young women

and minors into dance bars and also incidentally leading to

prostitution which could have been prevented to a large

extent only by imposing the ban. In support of this,

learned counsel have relied on the Prayas Report which

shows that 6% of the women working in dance bars are

minors and 87% are between the age of 18-30 years.

24

(1995) 6 SCC 289

Page 54 - 54 -

Similarly, SNDT report states that minors constitute upto

6.80 % and those between 19 to 30 years of age

constitute 88.20%. Prayas Report further states that "It

was found that the women respondents did not find any

dignity in this work. This is borne out by the fact that 47%

of women did not reveal their work to family members and

outsiders. They are often exposed to the sexual overtures

of overenthusiastic customers and are aware of their

vulnerability to get exploited". The appellants also relied

on a number of complaints and the various cases of minor

girls being rescued from dance bars during the period

2002-05 to buttress their submission that the young girls

were subjected to human trafficking. Learned senior

counsel also submitted that the High Court has

erroneously concluded that if the women can safely work

as waitress in the Restaurants why can they not work as

dancers. The learned senior counsel also submitted that

the High Court wrongly proceeded on the basis that there

was no evidence before the State or the Court in support

of the legislation. On the basis of the above, it is submitted

that the restrictions imposed are reasonable and the

legislation deserves to be declared intra vires the

constitutional provisions.

Page 55 - 55 -

65.Further, it was submitted that the legislative wisdom

cannot be gone into by the court. The Court can only

invalidate the enactment if it transgresses the

constitutional mandate. It is submitted that invalidation of

a statute is a grave step and that the legislature is the

best judge of what is good for the community. The

legislation can only be declared void when it is totally

absurd, palpably arbitrary, and cannot be saved by the

court. It is reiterated that the principle of “Presumption of

Constitutionality” has to be firmly rebutted by the person

challenging the constitutionality of legislation. The United

States Supreme Court had enunciated the principle of

constitutionality in favour of a statute and that the burden

is upon the person who attacks it to show that there has

been a clear transgression of any Constitutional provision.

The appellants relied on the observations made in

Charanjit Lal Chowdhury Vs. Union of India & Ors.

25

wherein this Court observed as follows :

“It must be presumed that a legislature understands

and correctly appreciates the need of its own people,

that its laws are directed to problems made manifest

by experience and that its discriminations are based

on adequate grounds"

25

AIR 1951 SC 41

Page 56 - 56 -

66.The same principle was reiterated by this Court in

State of Bihar & Ors. Vs. Bihar Distillery Ltd. & Ors.

26

in the following words :

“The approach of the Court, while examining the

challenge to the constitutionality of an enactment, is

to start with the presumption of constitutionality. The

court should try to sustain its validity to the extent

possible. It should strike down 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 a part of

attempt to sustain the validity/constitutionality of the

enactment. After all, an act 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."

67.On the basis of the above, it was submitted that the

burden of proof is upon the Respondents herein to prove

that the enactment/amendment is unconstitutional. Once

the respondents prima facie convince the Court that the

enactment is unconstitutional then the burden shifts upon

the State to satisfy that the restrictions imposed on the

fundamental rights satisfy the test of or reasonableness.

The High Court, according to the appellants, failed to apply

the aforesaid tests.

68.Finally, it was submitted that in the event this Court is

26

(1997) 2 SCC 453

Page 57 - 57 -

not inclined to uphold the constitutionality of the

impugned provisions, it ought to make every effort to give

the provision a strained meaning than what appears to be

on the face of it. This is based on the principle that it is

only when all efforts to do so fail, the court ought to

declare a statute to be unconstitutional. The principle has

been noticed by this Court in Government of Andhra

Pradesh & Ors. Vs. P. Laxmi Devi (Smt.)

27

wherein it is

observed as follows :

"46. In our opinion, there is one and only one ground

for declaring an Act of the legislature (or a provision

in the Act) to be invalid, and that is if it clearly

violates some provision of the constitution in so

evident a manner as to leave no manner of doubt.

This violation can, of course, be in different ways

But before declaring the statute to be

unconstitutional, the court must be absolutely sure

that there can be no two views that are possible, one

making the statute constitutional and the other

making it unconstitutional, the former view must

always be preferred. Also, the court must make

every effort to uphold the constitutional validity of a

statute, even if that requires giving strained

construction or narrowing down its scope vide Rt.

Rev. Msgr. Mark Netto v State of Kerala (1979) 1 SCC

23 para 6.

69.The same principle was reiterated in Kedar Nath

Singh Vs. State of Bihar

28

which is as follows :

“It is well settled that if certain provisions of law,

construed in one way, would make them consistent

with the Constitution and another interpretation

27

(2008) 4 SCC 720

28

AIR 1962 SC 955

Page 58 - 58 -

would render them unconstitutional, the court would

lean in favour of the former construction.”

70.On the basis of the above, it was submitted that this

Court ought to read down the provision in the following

manner:

“All dance” found in Section 33A of the Police Act may

be read down to mean that “dances which are obscene and

derogatory to the dignity of women”. This would ensure that

there is no violation of any of the rights of the girls who

dance as well as that of the owners of the establishments.

Still further, it was submitted that even if the reading of the

provisions as mentioned above is not accepted, Section 33A

can still be saved by applying the doctrine of severability. It

is submitted that the intention of the legislature being to

prohibit and ban obscene dance in the interest of society

and to uphold the dignity of women, by severing the

exempting section, namely, Section 33B and the provision

which is contained in Section 33A can be declared to be in

accordance with the object of legislature. This would

remove the vice of discrimination, as declared by the High

Court.

Respondents’ Submissions:

Page 59 - 59 -

71.In response to the aforesaid elaborate submissions,

learned senior counsel appearing for the respondents have

also submitted written submissions. Mr. Mukul Rohatgi,

learned senior counsel appeared for respondent – Indian

Hotel and Restaurants Association in C.A.No.2705 of 2006,

whereas Dr. Rajeev Dhawan, learned senior

counsel, appeared on behalf of Bhartiya Bar Girls Union in

C.A.No.2705 of 2006. Mr. Anand Grover, learned senior

counsel, appeared for respondent Nos. 1 to 6 in

W.P.No.2338/2005 and respondent No. 1 and 2 in W.P.

No.2587 of 2005.

72.Since the High Court has accepted the submissions

made on behalf of the respondents (writ petitioners in the

High Court), it shall not be necessary to note the

submissions of the learned senior counsel as elaborately

as the submissions of the appellants herein. Mr. Mukul

Rohatgi submitted that, at the heart of the present case,

the controversy revolved around the right to earn a

livelihood more so than the right of a person to choose the

vocation of their calling. It was submitted that apart from

the reasoning given in the judgment of the High Court, the

challenge to the impugned legislation can be sustained on

Page 60 - 60 -

other grounds also. He submits that a classification of the

establishments into three stars and above, and below is

not based on any intelligible differentia and is per se

discriminatory and arbitrary. Bar dancers have a right to

livelihood under Article 21 and the ban practically takes

away their right to livelihood. He therefore, submits that

the ban is violative of Articles 14, 19(1)(a) and 19(1)(g)

and 21 of the Constitution. Relying on the observations

made by this Court in the case of I.R. Coelho (Dead) by

LRs. Vs. State of T.N.

29

, he submits that these articles

are the very heart and soul of the Constitution and are

entitled to greater protection by the Court than any other

right. Mr. Rohatgi submits that the submissions made by

the appellants with regard to the protecting the dignity of

women and preventing trafficking in women are

misconceived. There are adequate measures in the

existing provisions, licensing conditions which would

safeguard the dignity of women. Relying on Sections 370

and 370A of the IPC, he submits that there are adequate

alternate mechanisms for preventing trafficking in women.

Elaborating on the submissions that dance is protected by

Article 19(1)(a) of the Constitution being a part of

fundamental right of speech and expression, he relied

29

(2007) 2 SCC 1

Page 61 - 61 -

upon the observations made by this Court in Sakal

Papers (P) Ltd. & Ors. Vs. The Union of India

30

. He has

also made a reference to some decisions of the High Court

recognizing that dancing and cabaret are protected rights

under Article 19(1)(a). He points out that it is always open

to a citizen to commercially benefit from the exercise of

the fundamental right. Such commercial benefit could be

by a bar owner having dance performance or by the

dancers themselves using their creative talent to carry on

an occupation or profession. The impugned amendment

prohibits the bar owners from carrying on any business or

trade associated with dancing in these establishments and

the bar girls from dancing in those premises. He then

submits that the amendment violates Article 19(1)(g), by

imposing restrictions by way of total prohibition of dance.

Even though the freedom under Article 19(1)(g) of the

Constitution is not absolute, any restriction imposed upon

the same have to fall within the purview of clause 6 of

Article 19. Therefore, the restriction imposed by law must

be reasonable and in the interest of general public. It was

also submitted that while such restriction may incidentally

touch upon other subjects mentioned above, such as

morality or decency, the same cannot be imposed only in

30

(1962) 3 SCR 842

Page 62 - 62 -

the interest of morality or decency. Mr. Rohatgi then

submitted that the reasons set out in the objects and

reasons of the amendment are not supported by any

evidence which would demonstrate that there was any

threat to public order. There is also no material to show

that the members of the Indian Hotel and Restaurants

Association were indulging in human trafficking or flesh

trade. Therefore, according to Mr. Rohatgi, the ban was

not for the protection of any interests of the general

public. In fact, Mr. Rohatgi emphasised that the Statement

of Objects and Reasons does not refer to trafficking. The

compilation of 600 pages given to the respondents by the

appellants does not contain a single complaint about

trafficking. All allegations relating to trafficking have been

introduced only to justify the ban on dancing. He,

therefore, submits that the total ban imposed on dancing

violates the fundamental right guaranteed under Article

19(1)(g). Learned senior counsel further submitted that

dancing is not res extra commercium. He emphasised that

if the dancing of similar nature in establishments,

mentioned in Section 33B is permissible, the prohibition of

similar dance performance in establishments covered

under Section 33 cannot be termed as reasonable and or

Page 63 - 63 -

“in the interest of general public”. Therefore, according to

Mr. Rohatgi, the restrictions do not fall within the scope of

Article 19(6). He relied on the judgment of this Court in

Anuj Garg & Ors. Vs. Hotel Association of India &

Ors.

31

, wherein a ban on employment of women in

establishment where liquor was served, was declared

discriminatory and violative of Articles 14, 15, 19 and 21.

In this case, it was held as under :

“…….Women would be as vulnerable without State

protection as by the loss of freedom because of the

impugned Act. The present law ends up victimising

its subject in the name of protection. In that regard

the interference prescribed by the State for pursuing

the ends of protection should be proportionate to the

legitimate aims. The standard for judging the

proportionality should be a standard capable of being

called reasonable in a modern democratic society.

Instead of putting curbs on women's freedom,

empowerment would be a more tenable and socially

wise approach. This empowerment should reflect in

the law enforcement strategies of the State as well

as law modelling done in this behalf.

Also with the advent of modern State, new models of

security must be developed. There can be a setting

where the cost of security in the establishment can

be distributed between the State and the employer.”

73.Relying on the State of Gujarat Vs. Mirzapur Moti

Kureshi Kassab Jamat (supra), Mr. Rohatgi submitted

that the standard for judging reasonability of restriction or

restrictions which amounts to prohibition remains the

31

(2008) 3 SCC 1

Page 64 - 64 -

same, excepting that a total prohibition must also satisfy

the test that a lesser alternative would be inadequate. The

State has failed to even examine the possibility of the

alternative steps that could have been taken. He has also

relied on the judgments with regard to the violation of

Article 14 to which reference has already been made in

the earlier part of the judgment. Therefore, it is not

necessary to reiterate the same. However, coming back to

Section 33B, Mr. Rohatgi submitted that dancing that is

banned in the establishments covered under Section 33A

is permitted under the exempted establishments under

Section 33B. According to learned senior counsel, the

differentia in Section 33A and 33B does not satisfy the

requirement that it must be intelligible and have a rational

nexus sought to be achieved by the statute. He submits

that the purported “immorality” gets converted to “virtue”

where the dancer who is prohibited from dancing in an

establishment covered under Section 33A, dances in an

establishment covered under Section 33B. The

discrimination, according to Mr. Rohatgi, is accentuated by

the fact that for a breach committed by the licensees in

the category of Section 33B only their licenses will be

cancelled but the licensees of establishments covered

Page 65 - 65 -

under Section 33A would have to close down their

business. He further submits that the provision contained

in Section 33A is based on the presumption of the State

Government that the performance of dance in prohibited

establishments having lesser facilities than three star

establishments would be derogatory to the dignity of

women. The State also presumed that dancing in such

establishments is likely to deprave, corrupt or injure public

morality. The presumption is without any factual basis.

The entry of women in such establishments is not banned.

There is also no prohibition for women to take up

alternative jobs within such establishments. They can

serve liquor and beer to persons but this does not lead to

the presumption that it would arouse lust in the male

customers. On the other hand, when women start dancing

it is presumed that it would arouse lust in the male

customers. He emphasised the categorization of

establishments under Sections 33A and 33B does not

specify the twin criteria: (i) that the classification must be

founded on an intelligible differentia which distinguishes

those that are grouped together from others; and (ii) the

differentia must have a rational nexus or relation to the

object sought to be achieved by the legislation. He

Page 66 - 66 -

submits that there is a clear discrimination between the

prohibited establishments and the exempted

establishments. He points out that the only basis for the

differentiation between the exempted and prohibited

establishments is the investment and the paying capacity

of patrons. Such a differentiation, according to Mr.

Rohatgi, is not permissible under the Constitution.

74.The next submission of Mr. Rohatgi is that Article 21

guarantees the right to life which would include the right

to secure a livelihood and to make life meaningful. Article

15(1) of the Constitution of India guarantees the

fundamental right that prohibits discrimination against any

citizen, inter alia, on the ground only of sex. Similarly

Article 15(2) lays down that no citizen shall, on grounds

only of, inter alia, sex, be subject to any disability, liability,

restriction or condition with regard, inter alia, to “access to

shops, public restaurants, hotels and places of public

entertainment.” The provision in Article 15(3) is meant for

protective discrimination or a benign discrimination or an

affirmative action in favour of women and its purpose is

not to curtail the fundamental rights of women. He relied

Page 67 - 67 -

on the observations made by this Court in Government

of A.P. Vs. P.B. Vijayakumar & Anr.

32

:-

“The insertion of clause (3) of Article 15 in relation to

women is a recognition of the fact that centuries,

women of this country have been socially and

economically handicapped. As a result, they are

unable to participate in the socio-economic activities

of the nation on a footing of equality. It is in order to

eliminate this socio-economic backwardness of

women and to empower them in a manner that

would bring about effective equality between men

and women that Article 15(3) is placed in Article 15.

Its object is to strengthen and improve the status of

women. An important limb of this concept of gender

equality is creating job opportunities for women……’’

(Emphasis supplied)

75.He 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 cholis,

sarees and salwar kameez . On the other hand, the

actresses in movies wear revealing clothes: shorts,

swimming costumes and revealing dresses. Reverting to

32

(1995) 4 SCC 520

Page 68 - 68 -

the reliance placed by the appellants on the Prayas Report

and Shubhada Chaukar Report, Mr. Rohatgi submitted that

both the reports are of no value, especially in the case of

Prayas Report which is based on interviews conducted with

only few girls. The SNDT Report actually indicates that

there is no organized racket that brings women to the

dance bars. The girls’ interview, in fact, indicated that

they came to the dance bars through family, community,

neighbors and street knowledge. Therefore, according to

the Mr. Rohatgi, the allegations with regard to trafficking

to the dance bars by middlemen are without any basis.

Most of the girls who performed dance are generally

illiterate and do not have any formal education. They also

do not have any training or skills in dancing. This clearly

rendered them virtually unemployable in any other job.

He, therefore, submits that the SNDT Report is

contradictory to the Prayas Report. Thus, the State had no

reliable data on the basis of which the impugned

legislation was enacted. Mr. Rohatgi further submitted that

there are sufficient provisions in various statutes which

empowered the Licensing Authority to frame rules and

regulations for licensing/controlling places of public

amusement or entertainment. By making a reference to

Page 69 - 69 -

Rules 120 and 123 framed under the Amusement Rules,

1960; he submits that no performers are permitted to

commit on the stage or any part of the auditorium any

profanity or impropriety of language. These dancers are

also not permitted to wear any indecent dress. They are

also not permitted to make any indecent movement or

gesture whilst dancing. Similar provisions are contained

under the Performance License. Although learned senior

counsel has listed all the regulatory provisions contained

under the Bombay Police Act, it is not necessary to notice

the same. The submission based on this regulation is that

there is wide amplitude of power available to the

appellants for controlling any perceived violation of dignity

of women through obscene dances. He submits that the

respondents are being made a scapegoat for lethargy and

failure of police to implement the provisions of law which

are already in place and are valid and subsisting. Failure of

the appellants in not implementing the necessary rules

and regulations would not justify the impugned legislation.

Learned senior counsel has also submitted that the State

Government, in its effort to regulate the conduct of

dances, had formed a Committee to make suggestions for

amendment of the existing Rules. The Committee had

Page 70 - 70 -

prepared its report and submitted the same to the State

Government. However, the State Government did not take

any steps for implementation of the recommendation

which was supported by the Indian Hotel and Restaurant

Association. He submits that the judgment of the High

Court does not call for any interference.

76.Dr. Rajeev Dhawan, learned senior counsel, has also

highlighted the same issues. He has submitted that the

provisions contained in Section 33A(1) prohibit

performance of dance of any kind or type. Since the

Section contained the Non Obstante Clause, it is a stand

alone provision absolutely independent of the Act and the

Rules. He submits that the provisions are absolutely

arbitrary and discriminatory. Under Section 33A(1), there

is an absolute provision which is totally prohibiting dance

in eating houses, permit rooms or beer bars. On the other

hand, Section 33B introduced the discriminatory provision

which allows such an activity in establishments where

entry is restricted to members only and three starred or

above hotels. He also emphasised that the consequence of

violation of Section 33A is punishment up to 3 years

imprisonment or Rs. 2 lakhs fine or both and with a

Page 71 - 71 -

minimum 3 months and Rs.50,000/- fine unless reasons

are recorded. The Section further contemplates that the

licence shall stand cancelled. Section 33A(6) makes the

offence cognizable and non-bailable. According to Dr.

Rajeev Dhawan, the provision is absolute and arbitrary. He

reiterates that the non obstante clause virtually makes

Section 33A stand alone. Further Section 33A(1) is

discretion less. It applied to all the establishments and

covers all the activities, including holding of performance

of dance of any kind or type in any eating house, permit

room or beer bar. There is total prohibition in the aforesaid

establishments. The breach of any condition would entail

cancellation of licence. According to Dr. Dhawan, Section

33A is a draconian code which is discretion less overbroad,

arbitrary with mandatory punishment for offences which

are cognizable and non-bailable. He then emphasised that

the exemption granted to the establishment under Section

33B introduces blatant discrimination. He submits that the

classification of two kinds of establishment is

unreasonable. According to Dr. Dhawan, it is clear that

Section 33B makes distinction on the grounds of “class of

establishments” or “class of persons who frequent the

establishment” and not on the form of dance. He

Page 72 - 72 -

reiterates the submission that if dance can be permitted in

exempted institutions it cannot be banned in the

prohibited establishments. He submitted that treating

establishments entitled to a performance licence

differently, even though they constitute two distinct

classes would be discriminatory as also arbitrary,

considering the object of the Act and the same being

violative of Article 14 of the Constitution of India.

Answering the submission on burden of proof with regard

to the reasonableness of the restriction, Dr. Dhawan

submits that the burden of showing that the recourse to

Article 19(6) is permissible lies upon the State and not on

the citizen, he relies on the judgment of this Court in M/s.

Laxmi Khandsari & Ors. Vs. State of U.P. & Ors.

33

77.Relying on the Narendra Kumar & Ors. Vs. Union of

India & Ors.

34

, he submitted that the total prohibition in

Section 33A must satisfy the test of Article 19(6) of the

Constitution. Reliance is placed on a number of judgments

to which we have made a reference earlier. Dr. Dhawan

further emphasised that the reports relied upon by the

State would not give a justification for enacting the

33

(1981) 2 SCC 600

34

(1960) 2 SCR 375

Page 73 - 73 -

impugned legislation. He points out that the study

conducted by Shubhada Chaukar for Vasantrao Bhagwat

Memorial Fellowship entitled “Problems of Mumbai Bar

girls” is based on conversations with 50 girls. According to

Dr. Dhawan, this report is thoroughly unreliable. The

report itself indicates that there are about one lakh bar

girls in Mumbai-Thane Region, therefore, interview of 50

girls would not be sufficient to generate any reliable data.

The report also states that there are about 1000-1200

bars, but it is based on interaction with seven bar owners.

Even then the report does not suggest complete

prohibition but suggests a framework which “regulates”

the functioning of bars, performances by singers, dancers

etc. Similarly, the Prayas Report cannot be relied upon.

The study was, in fact, done after the ban was imposed by

the State Government. Even this report indicates that after

the ban there was urgent need to find alternate source of

livelihood for these girls. There was no facility of education

for the children. Even this report finds that the families

from which these girls come are economically weak. Six

percent of minor children comprise the dancing

population. They are not provided any specialized training

to be bar dancers. They do not live in self owned houses.

Page 74 - 74 -

The SNDT Report clearly states that the study is based on

interaction with 500 girls from 50 bars. The report

indicates that there are a number of prevalent myths

which are without any basis. It is pointed out that,

according to the report, the following are the myths :-

1.It is an issue of trafficking from other States and

countries.

2.75% dancers are from Bangladesh.

3.Only 3% are dancers from Maharashtra.

4.Bar culture is against the tradition of Maharashtra.

5.Girls who dance are minors.

6.Bar Dancers hide their faces.

7.Girls don’t work hard.

8.Bar Girls can be rehabilitated in Call Centers.

9.Dancing in Bars is sexual exploitation.

10.Girls are forced into sex work.

11.Dance bars are vulgar and obscene.

12.Ban will solve all these problems.

78.The study, in fact, recommends that the dance bars

should not be banned. There should be regularization of

working conditions of bar dancers. There should be

monitoring and prevention of entry of children into these

Page 75 - 75 -

establishments. There should be protection against forced

sexual relations and harassments. There should be

security of earning, medical benefits and protection from

unfair trade practices. The report recommends that there

is a need for development that increases rather than

reduces options for women. The report also indicates that

the ban had an adverse impact in that respect. It will lead

to women becoming forced sex workers. The second

report of SNDT is based on empirical interviews. It

recommends that the ban imposed should be lifted

immediately. Dr. Dhawan has further elaborated the

shortcomings of the Prayas Report. He has also

emphasised that both the SNDT and Prayas Report

substantiate the fact that dancers were the sole bread

winners in their families earning approximately Rs.5,000/-

to Rs.20,000/- per month. They were supporting large

families in Mumbai as well as in their native places. After

the ban, these families are left without a source of income

and have since then been rendered destitute. He also

points out that the SNDT study indicates that many

dancers came from environments/employments where

they had been exploited (maid servants, factory workers,

etc.). Most of these women had taken employment as

Page 76 - 76 -

dancers in view of the fact that it afforded them financial

independence and security. The SNDT Report points out

that not a single bar dancer has ever made any complaint

about being trafficked. The reports, according to Dr.

Dhawan, clearly indicate that complete prohibition is not

the solution and regulation is the answer.

79.Dr. Dhawan then submitted that the conclusions

recorded by the High Court on equality and exploitation

need to be affirmed by this Court. He has submitted that

to determine the reasonableness of the restriction, the

High Court has correctly applied the direct and inevitable

effect test. He seeks support for the submission, by

making a reference to the observations made by this Court

in Rustom Cavasjee Cooper Vs. Union of India

35

and

Maneka Gandhi Vs. Union of India & Anr.

36

, he

emphasised that the direct operation of the Act upon the

rights forms the real test. The principle has been described

as the doctrine of intended and real effect or the direct

and inevitable effect, in the case of Maneka Gandhi

(supra). Dr. Dhawan also emphasised that dancing is

covered by Article 19(1)(a) even though it has been held

35

(1970) 1 SCC 248

36

(1978) 1 SCC 248

Page 77 - 77 -

by the High Court that it is not an expression of dancers

but their profession. He relied on the observations of this

Court in Bharat Bhawan Trust Vs. Bharat Bhawan

Artists’ Association & Anr.

37

wherein it is held that the

acting done by an artist is not done for the business. It is

an expression of creative talent, which is a part of

expression.

80.Illustrations submitted by Dr. Dhawan are that the

legislation cannot be saved even by adopting the doctrine

of proportionality which requires adoption of the least

invasive approach. Dr. Dhawan has reiterated that the

suggestions made by the Committee pursuant to the

resolution dated 19

th

December, 2002 ought to

be accepted. According to Dr. Dhawan, acceptance of such

suggestions would lead to substantial improvement. If the

State really seeks to control obscene bar dancing, he

submitted that the solution can be based on ensuring

that:- bar girls are unionized; there is adequate protection

to the girls and more involvement of the workers in self

improvement and self regulation. Dr. Dhawan does not

agree with Mr. Gopal Subramanium that this should be

37

(2001) 7 SCC 630

Page 78 - 78 -

treated as a case of trafficking with complicated crisis

centric approach.

81.Mr. Anand Grover, learned senior counsel has rebutted

the factual submissions made by the appellants. He

submits that the State has wrongly mentioned before the

court that women who dance in the bar are trafficked or

compelled to dance against their will and that the

significant number of dancers are minor or under the age

of 18 years; that the majority of dancers are from states

outside Maharashtra which confirms the allegation of inter-

state trafficking; that dancing in bars is a gateway to

prostitution; that bar dancing is associated with crime and

breeds criminality; that the conditions of dance bars are

exploitative and dehumanizing for the women. Lastly, that

bar dancing contributes to social-ills and illicit affairs

between dancers and the male visitors break up of family

and domestic violence against wives of men visiting the

dance bars. According to Mr. Grover, the aforesaid

assertions are founded on incorrect, exaggerated or

overstated claims. Learned senior counsel has also

indicated that there is great deal of fudging of figures by

police with regard to complaints and cases registered

Page 79 - 79 -

under the dance bars to substantiate their contentions. He

has relied on the official data on the incidence of

trafficking crimes from the National Crime Records Bureau

report for the year 2004-2011 to show that there is no

nexus between dance bars and trafficking in women.

Learned senior counsel has reiterated the submission that

Section 33A and Section 33B of the Bombay Police Act

violate Article 14 of the Constitution. He has relied on the

judgment of this Court in D.S. Nakara & Ors. Vs. Union

of India

38

. Learned senior counsel also reiterated that the

classification between the establishment under Section

33A and Section 33B is unreasonable.

82.The High Court, according to the learned senior counsel,

has wrongly accepted the explanation given by the

appellants in their affidavits that the classification is based

on the type of dance performed in the establishments.

This, according to learned senior counsel, is contrary to

the provisions contained in the aforesaid sections. He

reiterated the submissions that the distinction between

the establishments is based not on the type of dance

performance but on the basis of class of such

establishments. He makes a reference to the affidavit in

38

(1983) 1 SCC 305

Page 80 - 80 -

reply filed in Writ Petition No.2450 of 2005 at paragraph

33 inter alia stated as follows :-

“Even otherwise five star hotels are class themselves

and can’t be compared with popularly known dance

bars….the persons visiting these hotels or

establishments referred therein above stand on

different footing and can’t be compared with the

people who attend the establishments which are

popularly known as dance bar. They belong to

different strata of society and are a class by

themselves.”

83.These observations, according to learned counsel, are

contrary to the decision of this Court in Sanjeev Coke

Manufacturing Company Vs. M/s Bharat Coking Coal

Limited & Anr.

39

Mr. Grover has also reiterated the

submission that classification between Sections 33A and

33B establishments has no rational nexus with the object

sought to be achieved by the impugned legislation. He

submits that whereas Section 33A prohibits any kind or

type of dance performance in eating house, permit room

or beer bar, i.e., dance bars, Section 33B allows all types

and kinds of dances in establishments covered under

Section 33B. Learned senior counsel further submits that

the object of the impugned legislation is to protect women

from exploitation by prohibiting dances, which were of

indecent, obscene and vulgar type, derogatory to the

39

(1983) 1 SCC 147

Page 81 - 81 -

dignity of women and likely to deprave, corrupt or injure

the public morality, or morals. This is belied by the fact

that all kinds of dances are permitted in the exempted

establishments covered under Section 33B. He has also

given the example that most of the Hindi film songs or

even dancing in discos are much more sexually explicit

than the clothes worn by the bar dancers.

84.Learned senior counsel further submitted that

exploitation of women is not limited only to dance bar.

Such exploitation exists in all forms of employment

including factory workers, building site workers,

housemaids and even waitresses. In short, he reiterated

the submission that the legislation does not advance the

objects and reasons stated in the amendment Act. Mr.

Grover further submitted that the impugned law violates

the principle of proportionality. He has pointed out that

gender stereotyping is also palpable in the solution crafted

by the legislature. The impugned statute does not affect a

man’s freedom to visit bars and consume alcohol, but

restricts a woman from choosing the occupation of

dancing in the same bars. The legislation, patronizingly,

seeks to ‘protect’ women by constraining their liberty,

Page 82 - 82 -

autonomy and self-determination. Mr. Grover has also

reiterated the submission that Section 33A is violative of

Article 19(1)(a) of the Constitution. According to Mr.

Grover, restriction imposed on the freedom of expression

is not justified under Article 19(6) of the Constitution. He

submits that dancing in eating houses, permit rooms or

beer bars is not inherently dangerous to public interest.

Therefore, restrictions on the freedom of speech and

expression are wholly unwarranted. Mr. Grover also

emphasised that dancing is not inherently dangerous or

pernicious and cannot be treated akin to trades that are

res extra commercium . Bar dancers, therefore, have a

fundamental right to practice and pursue their

profession/occupation of dancing in eating houses, beer

bars and permit rooms. The social evils projected by the

appellants, according to Mr. Grover, are related to

serving and drinking of alcohol and not dancing. Therefore,

there was no rational nexus in the law banning all types of

dances. He also emphasised that the women can be

allowed to work as waitresses to serve liquor and alcoholic

drinks. There could be no justification for banning the

performance of dance by them. Mr. Grover also submitted

that the ban contained in Section 33A violates Article 21 of

Page 83 - 83 -

the Constitution. He submits that the right to livelihood is

an integral part of the right to life guaranteed under Article

21 of the Constitution. The deprivation of right to

livelihood can be justified if it is according to procedure

established by law under Article 21. Such a law has to be

fair, just and reasonable both substantively and

procedurally. The impugned law, according to Mr. Grover,

does not meet the test of substantive due process. It does

not provide any alternative livelihood options to the

thousands of bar dancers who have been deprived of their

legitimate source of livelihood. In the name of protecting

women from exploitation, it has sought to deprive more

than 75,000 women and their families from their

livelihoods and their only means of subsistence. Mr. Grover

has submitted that there is no viable rehabilitation or

compensation provision offered to the bar dancers, in

order to tide over the loss of income and employment

opportunities. According to learned senior counsel, in the

last 7 years, the impact of the prohibition has been

devastating on the lives of the bar dancers and their

families. This has deprived the erstwhile bar dancers of a

life with dignity. In the present context, the dignity of bar

dancers (of persons) and dignity of dancing (work) has

Page 84 - 84 -

been conflated in a pejorative way. According to Mr.

Grover, the bar dancing in establishments covered under

Section 33A has been demeaned because the dancers

therein hail from socially and economically lower castes

and class. It is a class based discrimination which would

not satisfy the test of Article 14.

85.Lastly, he has submitted that the plea of trafficking

would not be a justification to sustain the impugned

legislation. In fact, trafficking is not even mentioned in the

Statement of Objects and Reasons, it was mentioned for

the first time in the affidavit filed by the State in reply to

the writ petition. According to learned senior counsel, the

legislation has been rightly declared ultra vires by the High

Court.

86.We have considered the submissions made by the

learned senior counsel for the parties. We have also

perused the pleadings and the material placed before us.

87.The High Court rejected the challenge to the impugned

Act on the ground that the State legislature was not

competent to enact the amendment. The argument was

Page 85 - 85 -

rejected on the ground that the amendment is

substantially covered by Entries 2, 8, 33 and 64 of List II.

The High Court further observed that there is no

repugnancy between the powers conferred on the Centre

and the State under Schedule 7 List II and III of the

Constitution of India. The High Court also rejected the

submissions that the proviso to Section 33A (2) amounts

to interference with the independence of the judiciary on

the ground that the legislature is empowered to regulate

sentencing by enactment of appropriate legislation. Such

exercise of legislative power is not uncommon and would

not interfere with the judicial power in conducting trial and

rendering the necessary judgment as to whether the guilt

has been proved or not. The submission that the affidavit

filed by Shri Youraj Laxman Waghmare, dated 1.10.2005,

cannot be considered because it was not verified in

accordance with law was rejected with the observations

that incorrect verification is curable and steps have been

taken to cure the same. The submissions made in Writ

Petition 2450 of 2005 that the amendment would not

apply to eating houses and would, therefore, not be

applicable in the establishments of the petitioners therein

was also rejected. It was held that the “place of public

Page 86 - 86 -

interest” includes eating houses which serve alcohol for

public consumption. It was further observed that the

amendment covered even those areas in such eating

houses where alcohol was not served. The High Court also

rejected the challenge to the amendment that the same is

in violation of Article 15(1) of the Constitution of India. It

has been observed that dancing was not prohibited in the

establishments covered under Section 33B only on the

ground of sex. What is being prohibited is dancing in

identified establishments. The Act prohibits all types of

dance in banned establishments by any person or persons.

There being no discrimination on the basis of gender, the

Act cannot be said to violate Article 15(1) of the

Constitution.

88.The High Court has even rejected the challenge to the

impugned amendment on the ground that the ban

amounts to an unreasonable restriction, on the

fundamental right of the bar owners and bar dancers, of

freedom of speech and expression guaranteed under

Article 19(1)(a). The submission was rejected by applying

the doctrine of pith and substance. It has been held by the

High Court that dance performed by the bar dancers can

Page 87 - 87 -

not fall within the term “freedom of speech and

expression” as the activities of the dancers are mainly to

earn their livelihood by engaging in a trade or occupation.

Similarly, the submission that the provision in Section 33A

was ultra vires Article 21 of the Constitution of India was

rejected, in view of the ratio of this Court, in the case of

Sodan Singh & Ors. Vs. New Delhi Municipal

Committee & Ors.

40

wherein it is observed as follows :-

“We do not find any merit in the argument founded

on Article 21 of the Constitution. In our opinion,

Article 21 is not attracted in a case of trade or

business – either big or small. The right to carry on

any trade or business and the concept of life and

personal liberty within Article 21 are too remote to

be connected together.”

89.Since, no counter appeal has been filed by any of the

respondents challenging the aforesaid findings, it would

not be appropriate for us to opine on the correctness or

otherwise of the aforesaid conclusions.

90.However in order to be fair to learned senior counsel for

the respondents, we must notice that in the written

submissions it was sought to be argued that in fact the

amendments are also unconstitutional under Articles

15(1), 19(1)(a) and 21. Dr. Dhawan has submitted that the

High Court has erroneously recorded the finding that the

40

(1989) 4 SCC 155

Page 88 - 88 -

dancing in a bar is not an expression of dancers but their

profession, and, therefore, it can not get the protection of

Article 19(1)(a). Similarly, he had submitted that the High

Court in the impugned judgment has erroneously held that

the challenge to the amendment under Article 21 is too

remote. The respondents, therefore, would invite this

Court to examine the issue of “livelihood” under Article

142 of the Constitution of India being “question of law of

general public importance. According to Dr. Dhawan, the

High Court ought to have protected the bar dancers under

Articles 19(1)(a) and 21 also. As noticed earlier, Mr.

Rohatgi and Mr. Grover had made similar submissions. We

are, however, not inclined to examine the same in these

proceedings. No separate appeals have been filed by the

respondents specifically raising a challenge to the

observations adverse to them made by the High Court. We

make it very clear that we have not expressed any opinion

on the correctness or otherwise of the conclusions of the

High Court with regard to Sections 33A and 33B not being

ultra vires Articles 15(1), 19(1)(a) and Article 21. We have

been constrained to adopt this approach:

1) Because there was no challenge to the

conclusions of the High Court in appeal by

respondents.

Page 89 - 89 -

2) The learned senior counsel of the appellants had

no occasion to make submissions in support of the

conclusions recorded by the High Court.

3) We are not inclined to exercise our jurisdiction

under Article 142, as no manifest injustice has

been caused to the respondents. Nor can it be

said that the conclusions recorded by the High

Court are palpably erroneous so as to warrant

interference, without the same having been

challenged by the respondents. We, therefore,

decline the request of Dr. Rajeev Dhawan.

91.This now brings us to the central issue as to whether

the findings recorded by the High Court that the impugned

amendment is ultra vires Article 14 and 19(1)(g) suffers

from such a jurisdictional error that they cannot be

sustained.

Is the impugned legislation ultra vires Article 14?

92.Before we embark upon the exercise to determine as to

whether the impugned amendment Act is ultra vires

Article 14 and 19(1)(g), it would be apposite to notice the

well established principles for testing any legislation

before it can be declared as ultra vires. It is not necessary

for us to make a complete survey of the judgments in

Page 90 - 90 -

which the various tests have been formulated and re-

affirmed. We may, however, make a reference to the

judgment of this Court in Budhan Choudhry Vs. State of

Bihar

41

, wherein a Constitution Bench of seven Judges of

this Court explained the true meaning and scope of Article

14 as follows :-

“It is now well established that while article 14

forbids class legislation, it does not forbid reasonable

classification for the purposes of legislation. In order,

however, to pass the test of permissible classification

two conditions must be fulfilled, namely, (i) that the

classification must be founded on an intelligible

differentia which distinguishes persons or things that

are grouped together from others left out of the

group, and (ii) that that differentia must have a

rational relation to the object sought to be achieved

by the statute in question. The classification may be

founded on different bases, namely, geographical, or

according to objects or occupations or the like. What

is necessary is that there must be a nexus between

the basis of classification and the object of the Act

under consideration. It is also well established by the

decisions of this Court that Article 14 condemns

discrimination not only by a substantive law but also

by a law of procedure.”

93.The aforesaid principles have been consistently adopted

and applied in subsequent cases. In the case of Ram

Krishna Dalmia (supra), this Court reiterated the

principles which would help in testing the legislation on

the touchstone of Article 14 in the following words :

“(a) That a law may be constitutional even though it

relates to a single individual if on account of some

special circumstances or reasons applicable to him

41

AIR 1955 SC 191

Page 91 - 91 -

and not applicable to others, that single individual

may be treated as a class by himself

(b) That there is always presumption in favour of the

constitutionality of an enactment and the burden is

upon him who attacks it to show that there has been

a clear transgression of the constitutional principles;

(c) That it must he presumed that the legislature

understands and correctly appreciates the need of its

own people, that its laws are directed to problems

made manifest by experience and that its

discriminations are based on adequate grounds;

(d) That the legislature is free to recognise degrees

of harm and may confine its restrictions to those

cases where the need is deemed to be the clearest;

(e) That in order to sustain the presumption of

constitutionality the court may take into

consideration matters of common knowledge,

matters of common report, the history of the times

and may assume every state of facts which can he

conceived existing at the time of the legislation; and

(f) That while good faith and knowledge of the

existing conditions on the part of the legislature are

to be presumed, if there is nothing on the face of the

law or the surrounding circumstances brought to the

notice of the court on which the classification may be

reasonably be regarded as based, the presumption

of constitutionality cannot be carried to the extent of

always holding that there must be some undisclosed

and unknown reasons for subjecting certain

individuals or corporations to hostile or

discriminating legislation."

(Italics are ours)

94.These principles were reiterated by this Court in

Shashikant Laxman Kale (supra). The relevant

observations have already been noticed in the earlier part

of the judgment.

Page 92 - 92 -

95.The High Court has held that the classification under

Sections 33A and 33B was rational because the type of

dance performed in the establishments allowed them to be

separated into two distinct classes. It is further observed

that the classification does not need to be scientifically

perfect or logically complete.

96.The High Court has, however, concluded that

classification by itself is not sufficient to relieve a statute

from satisfying the mandate of the equality clause of

Article 14. The amendment has been nullified on the

second limb of the twin test to be satisfied under Article 14

of the Constitution of India that the amendment has no

nexus with the object sought to be achieved. Mr.

Subramanium had emphasised that the impugned

enactment is based on consideration of different factors,

which would justify the classification. We have earlier

noticed the elaborate reasons given by Mr. Subramanium

to show that the dance performed in the banned

establishments itself takes a form of sexual propositioning.

There is revenue sharing generated by the tips received

by the dancers. He had also emphasised that in the

banned establishment women, who dance are not

Page 93 - 93 -

professional dancers. They are mostly trafficked into

dancing. Dancing, according to him, is chosen as a

profession of last resort, when the girl is left with no other

option. On the other hand, dancers performing in the

exempted classes are highly acclaimed and established

performer. They are economically independent.

Such performers are not vulnerable and, therefore, there

is least likelihood of any indecency, immorality or

depravity. He had emphasised that classification to be

valid under Article 14 need not necessarily fall within an

exact or scientific formula for exclusion or inclusion of

persons or things. [See: Welfare Association, A.R.P.,

Maharashtra (supra)] There are no requirements of

mathematical exactness or applying doctrinaire tests for

determining the validity as long as it is not palpably

arbitrary. (See: Shashikant Laxman Kale & Anr.

(supra)).

97.We have no hesitation in accepting the aforesaid

proposition for testing the reasonableness of the

classification. However, such classification has to be

evaluated by taking into account the objects and reasons

of the impugned legislation; ( See: Ram Krishna

Page 94 - 94 -

Dalmia’s case supra). In the present case, judging the

distinction between the two sections upon the aforesaid

criteria cannot be justified.

98.Section 33(a)(i) prohibits holding of a performance of

dance, of any kind or type, in any eating house, permit

room or beer bar. This is a complete embargo on

performance of dances in the establishment covered

under Section 33(a)(i). Section 33(a) contains a non-

obstante clause which makes the section stand alone and

absolutely independent of the act and the rules. Section

33(a)(ii) makes it a criminal offence to hold a dance

performance in contravention of sub-section(i).

On conviction, offender is liable to punishment for 3 years,

although, the Court may impose a lesser punishment of 3

months and fine, after recording special reasons for the

same. We are in agreement with the submission of Dr.

Dhawan that it is a particularly harsh provision. On the

other hand, the establishments covered under Section 33B

enjoy complete exemption from any such restrictions. The

dance performances are permitted provided the

establishments comply with the applicable statutory

provisions, Bye-Laws, Rules and Regulations. The

Page 95 - 95 -

classification of the establishments covered under

Sections 33A and 33B would not satisfy the test of equality

laid down in the case of State of Jammu and Kashmir

Vs. Shri Triloki Nath Khosa & Ors.

42

, wherein it was

observed as under:

“Classification, therefore, must be truly founded on

substantial differences which distinguish persons

grouped together from those left out of the group

and such differential attributes must bear a just and

rational relation to the object sought to be achieved.”

99.Further, this Court in E.V. Chinnaiah Vs. State of A.P.

& Ors.

43

held that:

“Legal constitutional policy adumbrated in a statute

must answer the test of Article 14 of the Constitution

of India. Classification whether permissible or not

must be judged on the touchstone of the object

sought to be achieved.”

100. Learned senior counsel for the appellants have sought

to justify the distinction between two establishments, first

of all as noticed earlier, on the basis of type of dance. It

was emphasised that the dance performed in the

prohibited establishments, itself takes a form of sexual

propositioning. It was submitted that it is not only just the

type of dance performed but the surrounding

circumstances which have been taken into consideration

in making the distinction. The distinction is sought to be

42

(1974) 1 SCC 19

43

(2005) 1 SCC 394

Page 96 - 96 -

made under different heads which we shall consider

seriatim. It is emphasised that in the banned

establishments, the proximity between the dancing

platform and the audience is larger than at the banned

establishments. An assumption is sought to be made from

this that there would hardly be any access to the dancers

in the exempted establishments as

opposed to the easy access in the banned or prohibited

establishments. Another justification given is that the

type of crowd that visits the banned establishments is also

different from the crowd that visits the exempted

establishments. In our opinion, all the aforesaid reasons

are neither supported by any empirical data nor common

sense. In fact, they would be within the realm of “myth”

based on stereotype images. We agree with the

submission made by the learned counsel for the appellant,

Mr. Mukul Rohtagi and Dr. Dhawan that the distinction is

made on the grounds of “classes of establishments” or

“classes of persons, who frequent the establishment.” and

not on the form of dance. We also agree with the

submission of the learned senior counsel for the

respondents that there is no justification that a dance

permitted in exempted institutions under Section 33B, if

Page 97 - 97 -

permitted in the banned establishment, would be

derogatory, exploitative or corrupting of public morality.

We are of the firm opinion that a distinction, the

foundation of which is classes of the establishments and

classes/kind of persons, who frequent the establishment

and those who own the establishments can not be

supported under the constitutional philosophy so clearly

stated in the Preamble of the Constitution of India and the

individual Articles prohibiting discrimination on the basis of

caste, colour, creed, religion or gender. The Preamble of

the Constitution of India as also Articles 14 to 21, as rightly

observed in the Constitutional Bench Judgment of this

Court in I.R. Coelho (supra), form the heart and soul of

the Constitution. Taking away of these rights of equality by

any legislation would require clear proof of the justification

for such abridgment. Once the respondents had given

prima facie proof of the arbitrary classification of the

establishments under Sections 33A and 33B, it was duty of

the State to justify the reasonableness of the classification.

This conclusion of ours is fortified by the observations in

M/s. Laxmi Khandsari (supra) , therein this Court

observed as follow:

“14. We, therefore, fully agree with the contention

advanced by the petitioners that where there is a

Page 98 - 98 -

clear violation of Article 19(1)(g), the State has 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.

This proposition has not been disputed by the

counsel for the respondents, who have, however,

submitted that from the circumstances and materials

produced by them the onus of proving that the

restrictions are in public interest and are reasonable

has been amply discharged by them.”

101.In our opinion, the appellants herein have failed to

satisfy the aforesaid test laid down by this court. The

Counsel for the appellant had, however, sought to

highlight before us the unhealthy practice of the

customers showering money on the dancers during the

performance, in the prohibited establishments. This

encourages the girls to indulge in unhealthy competition

to create and sustain sexual interest of the most favoured

customers. But such kind of behaviour is absent when the

dancers are performing in the exempted establishments. It

was again emphasised that it is not only the activities

performed in the establishments covered under Section 33

A, but also the surrounding circumstances which are

calculated to produce an illusion of easy access to women.

The customers who would be inebriated would pay little

heed to the dignity or lack of consent of the women. This

conclusion is sought to be supported by a number of

Page 99 - 99 -

complaints received and as well as case histories of girl

children rescued from the dance bars. We are again not

satisfied that the conclusions reached by the state are

based on any rational criteria. We fail to see how exactly

the same dances can be said to be morally acceptable in

the exempted establishments and

lead to depravity if performed in the prohibited

establishments. Rather it is evident that the same dancer

can perform the same dance in the high class hotels,

clubs, and gymkhanas but is prohibited of doing so in the

establishments covered under Section 33A. We see 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 section 33A(1) by an

establishment covered under the aforesaid provision

would entail the owner being liable to be imprisoned for

three years by virtue of section 33A(2). On the other hand,

no such punishment is prescribed for establishments

covered under Section 33B. Such an establishment would

merely lose the licence. Such blatant discrimination cannot

possibly be justified on the criteria of reasonable

Page 100 - 100 -

classification under Article 14 of the Constitution of India.

Mr. Subramaniam had placed strong reliance on the

observations made by the Court in the State of Uttar

Pradesh Vs. Kaushailiya & Ors. (supra), wherein it was

observed as follows:

“7. The next question is whether the policy so

disclosed offends Article 14 of the Constitution. It has

been well settled that Article 14 does not prohibit

reasonable classification for the purpose of

legislation and that a law would not be held to

infringe Article 14 of the Constitution if the

classification is founded on an intelligible differentia

and the said differentia has a rational relation to the

object sought to be achieved by the said law. The

differences between a woman who is a prostitute and

one who is not certainly justify their being placed in

different classes. So too, there are obvious

differences between a prostitute who is a public

nuisance and one who is not. A prostitute who carries

on her trade on the sly or in the unfrequented part of

the town or in a town with a sparse population may

not so dangerous to public health or morals as a

prostitute who lives in a busy locality or in an over-

crowded town or in a place within the easy reach of

public institutions like religious and educational

institutions. Though both sell their bodies, the latter

is far more dangerous to the public, particularly to

the younger generation during the emotional stage

of their life. Their freedom of uncontrolled movement

in a crowded locality or in the vicinity of public

institutions not only helps to demoralise the public

morals, but, what is worse, to spread diseases not

only affecting the present generation, but also the

future ones. Such trade in public may also lead to

scandals and unseemly broils. There are, therefore,

pronounced and real differences between a woman

who is a prostitute and one who is not, and between

a prostitute, who does not demand in public interests

any restrictions on her movements and a prostitute,

whose actions in public places call for the imposition

of restrictions on her movements and even

deporation. The object of the Act, as has already

been noticed, is not only to suppress immoral traffic

in women and girls, but also to improve public morals

Page 101 - 101 -

by removing prostitute from busy public places in the

vicinity of religious and educational institutions. The

differences between these two classes of prostitutes

have a rational relation to the object sought to be

achieved by the Act.”

102.We fail to see how any of the above observations are of

relevance in present context. The so called distinction is

based purely on the basis of the class of the performer and

the so called superior class of audience. Our judicial

conscience would not permit us to presume 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. We are unable to accept the

presumption which runs through Sections 33A and 33B

that the enjoyment of same kind of entertainment by the

upper classes leads only to mere enjoyment and in the

case of poor classes; it would lead to immorality,

decadence and depravity. Morality and depravity

cannot be pigeon-holed by degrees depending upon the

classes of the audience. The aforesaid presumption is also

perplexing on the ground that in the banned

establishments even a non-obscene dance would be

treated as vulgar. On the other hand, it would be

presumed that in the exempted establishments any dance

is non-obscene. The underlying presumption at once puts

Page 102 - 102 -

the prohibited establishments in a precarious position, in

comparison to the exempted class for the grant of a

licence to hold a dance performance. Yet at the same

time, both kinds of establishments are to be granted

licenses and regulated by the same restrictions,

regulations and standing provisions.

103. We, therefore, decline to accept the submission of

Mr. Subramaniam that the same kind of dances performed

in the exempted establishments would not bring about

sexual arousal in male audience as opposed to the male

audience frequenting the banned establishments meant

for the lower classes having lesser income at their

disposal. In our opinion, the presumption is elitist, which

cannot be countenanced under the egalitarian philosophy

of our Constitution. Our Constitution makers have taken

pains to ensure that equality of treatment in all spheres is

given to all citizens of this country irrespective of their

station in life. {See: Charanjit Lal Chowdhury Vs.

Union of India & Ors. (supra), Ram Krishna Dalmia’s

case (supra) and State of Uttar Pradesh Vs.

Kaushailiya & Ors. (supra )}. In our opinion, sections

Page 103 - 103 -

33A and 33B introduce an invidious discrimination which

cannot be justified under Article 14 of the Constitution.

104.The High Court, in our opinion, has rightly declined to

rely upon the Prayas and Shubhada Chaukar’s report. The

number of respondents interviewed was so miniscule as to

render both the studies meaningless. As noticed earlier,

the subsequent report submitted by SNDT University has

substantially contradicted the conclusions reached by the

other two reports. The situation herein was not similar to

the circumstances which led to the decision in the case of

Radice (supra). In that case, a 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., on the ground of (1) due

process clause, by depriving the employer and employee

of their liberty to contract, and (2) the equal protection

clause by an unreasonable and arbitrary classification. The

Court upheld the legislation on the first ground that the

State had come to the conclusion that night work

prohibited, so injuriously threatens to impair women’s

peculiar and natural functions. Such work, according to the

State, exposes women to the dangers and menaces

Page 104 - 104 -

incidental to night life in large cities. Therefore, it was

permissible to enable the police to preserve and promote

the public health and welfare. The aforesaid conclusion

was, however, based on one very important factor which

was that “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.” In our opinion, as pointed out by the learned

counsel for the respondents, in the present 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.

105.The next justification for the so called intelligible

differentia is on the ground that women who perform in

the banned establishment are a vulnerable lot. They come

from grossly deprived backgrounds. According to the

appellants, most of them are trafficked into bar dancing.

We are unable to accept the aforesaid submission. A

perusal of the Objects and the Reasons would show that

the impugned legislation proceed on a hypothesis that

different dance bars are being used as meeting points of

Page 105 - 105 -

criminals and pick up points of the girls. But the Objects

and Reasons say nothing about any evidence having been

presented to the Government that these dance bars are

actively involved in trafficking of women. In fact, this plea

with regard to trafficking of women was projected for the

first time in the affidavit filed before the High Court. The

aforesaid plea seems to have been raised only on the

basis of the reports which were submitted after the ban

was imposed. We have earlier noticed the extracts from

the various reports. In our opinion, such isolated

examples would not be sufficient to establish the

connection of the dance bars covered under section 33A

with trafficking. We, therefore, reject the submission of the

appellants that the ban has been placed for the protection

of the vulnerable women.

106.The next justification given by the learned counsel for

the appellants is on the basis of degree of harm which is

being caused to the atmosphere in the banned

establishments and the surrounding areas. Undoubtedly as

held by this Court in the Ram Krishna Dalmia’s case

(supra), the Legislature is free to recognize the degrees

of harm and may confine its restrictions to those cases

Page 106 - 106 -

where the need is deemed to be clearest. We also agree

with the observations of the U.S. Court in Joseph

Patsone’s case (supra) that 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. 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.

The three reports presented before the High Court in fact

have presented divergent view points. Thus, the

observations made in the case of Joseph Patsone

(supra) are not of any help to the appellant. We are also

conscious of the observations made by this court in case

of Mohd. Hanif Quareshi (supra) , wherein it was held

that there is a presumption that the legislature

understands and appreciates the needs of its people and

that its laws are directed to problems made manifest by

experience and that its discriminations are based on

adequate grounds. In the present case, the appellant has

Page 107 - 107 -

failed to give any details of any experience which would

justify such blatant discrimination, based purely on the

class or location of an establishment.

107. We are of the opinion that 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 our opinion, in the present case, the

legislation is based on an unacceptable presumption that

the so called elite i.e. rich and the famous would have

higher standards of decency, morality or strength of

character than their counter parts who have to content

themselves with lesser facilities of inferior quality in the

dance bars. Such a presumption is abhorrent to the

resolve in the Preamble of the Constitution to secure the

citizens of India. “Equality of status and opportunity and

dignity of the individual”. The State Government presumed

that the performance of an identical dance item in the

Page 108 - 108 -

establishments having facilities less than 3 stars

would be derogative to the dignity of women and would be

likely to deprave, corrupt or injure public morality or

morals; but would not be so in the exempted

establishments. These are misconceived motions of a

bygone era which ought not to be resurrected.

108. Incongruously, the State does not find it to be

indecent, immoral or derogatory to the dignity of women if

they take up other positions in the same establishments

such as receptionist, waitress or bar tender. The women

that serve liquor and beer to customers do not arouse lust

in customers but women dancing would arouse lust. In our

opinion, if certain kind of dance is sensuous in nature and

if it causes sexual arousal in men it cannot be said to be

more in the prohibited establishments and less in the

exempted establishments. Sexual arousal and lust in men

and women and degree thereof, cannot be said to be

monopolized by the upper or the lower classes. Nor can it

be presumed that sexual arousal would generate different

character of behaviour, depending on the social strata of

the audience. History is replete with examples of crimes of

lust committed in the highest echelons of the society as

Page 109 - 109 -

well as in the lowest levels of society. The High Court has

rightly observed, relying on the observations of this Court

in Gaurav Jain Vs. Union of India

44

, that “prostitution in

5 star hotels is a licence given to a person from higher

echelon”. In our opinion, 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 Article 14 of

the Constitution of India.

Is the impugned legislation ultra vires Article 19(1)(g)

–

109. It was submitted by the learned counsel for the

appellants that by prohibiting dancing under Section 33A,

no right of the bar owners for carrying on a

44

(1997) 8 SCC 114

Page 110 - 110 -

business/profession is being infringed [See: Fertilizer

Corporation Kamgar Union (Regd.), Sindri & Ors.

(supra)]. The curbs are imposed by Section 33A and 33B

only to restrict the owners in the prohibited

establishments from permitting dance to be conducted in

the interest of general public. Since the dances conducted

in establishments covered under Section 33A were

obscene, they would fall in the category of res extra

commercium and would not be protected by the

fundamental right under Article 19(1)(g). The submission

is also sought to be supported by placing a reliance on the

reports of Prayas and Subhada Chaukar. The restriction is

also placed to curb exploitation of the vulnerability of the

young girls who come from poverty stricken background

and are prone to trafficking. In support of the submission,

the learned counsel relied on a number of judgments of

this Court as well as the American Courts, including

Municipal Corporation of the City of Ahmedabad

(supra), wherein it was held that the expression “in the

interest of general public” under Article 19(6) inter alia

includes protecting morality. The relationship between law

and morality has been the subject of jurisprudential

discourse for centuries. The questions such as: Is the

Page 111 - 111 -

development of law influenced by morals? Does morality

always define the justness of the law? Can law be

questioned on grounds of morality? and above all, Can

morality be enforced through law?, have been subject

matter of many jurisprudential studies for over at least a

century and half. But no reference has been made to any

such studies by any of the learned senior counsel.

Therefore, we shall not dwell on the same.

110.Upon analyzing the entire fact situation, the High Court

has held that dancing would be a fundamental right 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 rightly scrutinized the

impugned legislation in the light of observations of this

Court made in Narendra Kumar (supra) , wherein it was

held that greater the restriction, the more the need for

scrutiny. The High Court noticed that in the guise of

regulation, the legislation has imposed a total ban on

dancing in the establishments covered under Section 33A.

The High Court has also concluded that the legislation has

failed to satisfy the doctrine of direct and inevitable effect

Page 112 - 112 -

[See: Maneka Gandhi’s case (supra) ]. We see no

reason to differ with the conclusions recorded by the High

Court. We agree with Mr. Rohatgi and Dr. Dhawan 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 Objects and Reasons of

the impugned legislation.

111.The activities of the eating houses, permit rooms and

beer bars are controlled by the following regulations:

A. Bombay Municipal Corporation Act.

B. Bombay Police Act, 1951.

C. Bombay Prohibition Act, 1949.

D. Rules for Licensing and Controlling Places of Public

Entertainment, 1953.

E. Rules for Licensing and controlling Places of Public

Amusement other that Cinemas.

F. And other orders are passed by the Government from

time to time.

112.The Restaurants/Dance Bar owners also have to obtain

licenses/permissions as listed below:

i. Licence and Registration for eating house under the

Bombay Police Act, 1951.

ii. License under the Bombay Shops and Establishment

Act, 1948 and the Rules thereunder.

Page 113 - 113 -

iii. Eating House license under Sections 394, 412A, 313 of

the Bombay Municipal Corporation Act, 1888.

iv. Health License under the Maharashtra Prevention of

Food Adulteration Rules, 1962.

v. Health License under the Mumbai Municipal

Corporation Act, 1888 for serving liquor;

vi. Performance License under Rules 118 of the

Amusement Rules, 1960 ;

vii. Premises license under Rules 109 of the amusement

Rules;

viii. License to keep a place of Public Entertainment under

Section 33(1), clause (w) and (y) of the Bombay Police

Act, 1951 and the said Entertainment Rules;

ix. FL III License under the Bombay Prohibition Act, 1949

and the Rules 45 of the Bombay Foreign Liquor Rules,

1953 or a Form “E” license under the Special Permits

& Licenses Rules for selling or serving IMFL & Beer.

x. Suitability certificate under the Amusement Rules.

113.Before any of the licenses are granted, the applicant

has to fulfil the following conditions :

(i) Any application for premises license shall

accompanied by the site-plan indicating inter-alia the

distance of the site from any religious, educational

institution or hospital.

(ii) The distance between the proposed place of

amusement and the religious place or hospital or

educational institution shall be more than 75 metres.

(iii) The proposed place of amusement shall not have been

located in the congested and thickly populated area.

(iv) The proposed site must be located on a road having

width of more than 10 metres.

Page 114 - 114 -

(v) The owners/partners of the proposed place of

amusement must not have been arrested or detained

for anti-social or any such activities or convicted for

any such offenses.

(vi) The distance between two machines which are to be

installed in the video parlour shall be reflected in the

plan.

(vii) No similar place of public amusement exists within a

radius of 75 metres.

(b) The conditions mentioned in the license shall be

observed throughout the period for which the license

is granted and if there is a breach of any one of the

conditions, the license is likely to be cancelled after

following the usual procedure.

114.The aforesaid list, enactments and regulations are

further supplemented with regulations protecting the

dignity of women. The provisions of 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.”

115.Rules 122 and 123 of the Amusement Rules, 1960 also

prescribe conditions for holding performances.

Page 115 - 115 -

“ Rule 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 of or subsequent to any performance,

exhibition, production, display or staging, permit or

himself commit on the stage or in any part of the

auditorium or outside it :

(i) any exhibition or advertisement whether by

way of posters or in the newspapers,

photographs of nude or scantily dressed

women;

(ii) any performance at a place other than the

place provided for the purpose;

(iii) any mixing of the cabaret performers with

the audience or any physical contact by touch

or otherwise with any member of the audience;

(iv) any act specifically prohibited by the

rules.”

116.The Rules under the Bombay Police Act, 1951 have

been framed in the interest of public safety and social

welfare and to safeguard the dignity of women as well as

prevent exploitation of women. There is no material placed

on record by the State to show that it was not possible to

Page 116 - 116 -

deal with the situation within the framework of the existing

laws except for the unfounded conclusions recorded in the

Preamble as well the Objects and Reasons. [See: State of

Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat

(supra)], wherein it is held that the standard of judging

reasonability of restriction or restrictions amounting to

prohibition remains the same, except that a total

prohibition must also satisfy the test that a lesser

alternative would be inadequate]. The Regulations framed

under Section 33(w) of the Bombay Police Act, more so

Regulations 238 and 242 provide that the licensing

authority may suspend or cancel a licence for any breach

of the license conditions. Regulation 241 empowers the

licensing authority or any authorised Police Officer, not

below the rank of Sub Inspector, to direct the stoppage of

any performance forthwith if the performance is found to

be objectionable. Section 162 of the Bombay Police Act

empowers a Competent Authority/Police

Commissioner/District Magistrate to suspend or revoke a

license for breach of its conditions. Thus, sufficient power

is vested with the Licensing Authority to safeguard any

perceived violation of the dignity of women through

obscene dances.

Page 117 - 117 -

117.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. 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 fall within Section 33B; 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 33A 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 dancers wore deliberately provocative

dresses. The dance becomes even more provocative and

Page 118 - 118 -

sensual when such behaviour is mixed with alcohol. It has

the tendency to lead to undesirable results. Reliance was

placed upon State of Bombay Vs. R.M.D.

Chamarbaugwala & Anr. (supra), Khoday Distilleries

Ltd. & Ors. Vs. State of Karnataka & Ors. (supra),

State of Punjab & Anr. Vs. Devans Modern Breweries

Ltd. & Anr. (supra), New York State Liquor Authority

Vs. Dennis BELLANCA, DBA The Main Event, Et Al.

(supra), Regina Vs. Bloom (supra) to substantiate the

aforesaid submissions. Therefore, looking at the degree of

harm caused by such behaviour, the State enacted the

impugned legislation.

118.We are undoubtedly bound by the principles enunciated

by this Court in the aforesaid cases, but these are not

applicable to the facts and circumstances of the present

case. In Khoday Distilleries Ltd. (supra) , it was held

that there is no fundamental right inter alia to do

trafficking in women or in slaves or to carry on business of

exhibiting and publishing pornographic or obscene films

and literature. This case is distinguishable because the

unfounded presumption that women are being/were

trafficked in the bars. The case of State of Punjab &

Page 119 - 119 -

Anr. Vs. Devans Modern Breweries Ltd. & Anr.

(supra) dealt with liquor trade, whereas the present case

is clearly different. The reliance on New York State

Liquor Authority (supra) is completely unfounded

because in that case endeavour of the State was directed

towards prohibiting topless dancing in an establishment

licensed to serve liquor. Similarly, Regina Vs. Bloom

(supra) dealt with indecent performances in a disorderly

house. Hence, this case will also not help the appellants.

Therefore, we are not impressed with any of these

submissions. All the activities mentioned above can be

controlled under the existing regulations.

119. We do not agree with the submission of

Mr. Subramanium that the impugned enactment is a form

of additional regulation, as it was felt that the existing

system of licence and permits were insufficient to deal

with problem of ever increasing dance bars. We also do

not agree with the submissions that whereas exempted

establishments are held to standards higher than those

prescribed; the eating houses, permit rooms and dance

bars operate beyond/below the control of the regulations.

Another justification given is that though it may be

Page 120 - 120 -

possible to regulate these permit rooms and dance bars

which are located within Mumbai, it would 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.

120.The end result of the prohibition of any form of dancing

in the establishments covered under Section 33A 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 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).

121.We are also not able to agree with the submission of

Mr. Subramanium that the impugned legislation can still

be protected by reading down the provision. Undoubtedly,

Page 121 - 121 -

this Court in the case of Government of Andhra

Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon

taking notice of the previous precedents has held that the

legislature must be given freedom to do experimentations

in exercising its powers, provided it does not clearly and

flagrantly violate its constitutional limits, these

observations are of no avail to the appellants in view of

the opinion expressed by us earlier. 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 under Section 33B.

122.We are also unable to accept the submission of

Mr. Subramanium that the provisions contained in Section

33A can be declared constitutional by applying the

doctrine of severability. Even if Section 33B is declared

unconstitutional, it would still retain the provision

contained in Section 33A which prohibits any kind of dance

by any person in the establishments covered under

Section 33A.

Page 122 - 122 -

123.In our opinion, it would be more appropriate that the

State Government re-examines the recommendations

made by the Committee which had been constituted by

the State Government comprising of a Chairman of AHAR,

Public and Police Officials and chaired by the Principal

Secretary (E.I.), Home Department. The Committee had

prepared a report and submitted the same to the State

Government. The State Government had in fact sent a

communication dated 16

th

July, 2004 to all District Judicial

Magistrates and Police Commissioner to amend the rules

for exercising control on Hotel Establishments presenting

dance programmes. The suggestions made for the

amendment of the Regulations were as follows :

(1) Bar girls dancing in dance bars should not wear

clothes which expose the body and also there

should be restriction on such dancers wearing

tight and provocative clothes.

(2) There should be a railing of 3 ft. height adjacent to

the dance stage. There should be distance of 5 ft.

between the railing and seats for the customers.

In respect of dance bars who have secured

licences earlier, provisions mentioned above be

made binding. It should be made binding on dance

bars seeking new licences to have railing of 3 ft.

height adjacent to the stage and leaving a

distance of 5 ft. between the railing and sitting

arrangement for customers.

Page 123 - 123 -

(3) Area of dance floor should be minimum 10 x 12 ft.

i.e. 120 sq. ft. and the area to be provided for

such dancer should be minimum of 15 sq. ft. so

that more than 8 dancers cannot dance

simultaneously on the stage having area of 12- sq.

ft.

(4) If the dancers are to be awarded, there should be

a ban on going near them or on showering money

on them. Instead it should be made binding to

collect the said money in the name of manager of

the concerned dancer or to hand over to the

manager.

(5) Apart from the above, a register should be

maintained in the dance bar to take entries of

names of the girls dancing in the bar every day.

Similarly, holders of the establishment should

gather information such a name, address,

photograph and citizenship and other necessary

information of the dance girls. Holder of the

establishment should be made responsible to

verify the information furnished by the dance girls.

Also above conditions should be incorporated in

the licences being granted.

124.Despite the directions made by the State Government,

the authorities have not taken steps to implement the

recommendations which have been submitted by AHAR.

On the contrary, the impugned legislation was enacted in

2005. In our opinion, it would be more appropriate to bring

Page 124 - 124 -

about measures which should ensure the safety and

improve the working conditions of the persons working as

bar girls. In similar circumstances, this Court in the case of

Anuj Garg (supra ) had made certain observations

indicating that 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 modeling done in this behalf. In our opinion, in the

present 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

imaginative alternative steps could be taken instead of

completely prohibiting dancing, if the real concern of the

State is the safety of women.

125.Keeping in view the aforesaid circumstances, we are

not inclined to interfere with the conclusions reached by

the High Court. Therefore, we find no merit in these

appeals and the same are accordingly dismissed.

Page 125 - 125 -

126.All interim orders are hereby vacated.

………………………… CJI.

[Altamas Kabir]

…………………………… .J.

[Surinder Singh Nijjar]

New Delhi;

July 16, 2013.

Page 126 126

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2705 OF 2006

State of Maharashtra & Anr. … Appellants

Vs.

Indian Hotel & Restaurants Assn.

& Ors. …

Respondents

WITH

Civil Appeal No. 2704 of 2006

and

Page 127 127

Civil Appeal No.5504 of 2013

[Arising out of S.L.P. (C) No. 14534 of 2006]

J U D G M E N T

ALTAMAS KABIR, CJI.

1. Having had an opportunity of going through the

masterly exposition of the law in the crucible of

facts relating to the violation of the provisions

of Articles 19(1)(a), 19(1)(g) and 21 of the

Constitution read with the relevant provisions of

the Bombay Police Act, 1951, I wish to pen down

some of my thoughts vis-a-vis the problem arising

in all these matters requiring the balancing of

Page 128 128

equities under Articles 19(1)(g) and 21 of the

Constitution.

2.The expression “the cure is worse than the

disease” comes to mind immediately.

3.As will appear from the judgment of my learned

Brother, Justice Nijjar, the discontinuance of bar

dancing in establishments below the rank of three

star establishments, has led to the closure of a

large number of establishments, which has resulted

in loss of employment for about seventy-five

thousand women employed in the dance bars in

various capacities. In fact, as has also been

commented upon by my learned Brother, many of these

unfortunate people were forced into prostitution

merely to survive, as they had no other means of

survival.

Page 129 129

4.Of course, the right to practise a trade or

profession and the right to life guaranteed under

Article 21 are, by their very nature, intermingled

with each other, but in a situation like the

present one, such right cannot be equated with

unrestricted freedom like a run-away horse. As has

been indicated by my learned Brother, at the very

end of his judgment, 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 existence by dancing

in bars, who will be left to the mercy of other

forms of exploitation. The compulsion of physical

needs has to be taken care of while making any laws

on the subject. Even a bar dancer has to satisfy

her hunger, provide expenses for her family and

meet day to day expenses in travelling from her

Page 130 130

residence to her place of work, which is sometimes

even as far as 20 to 25 kms. away. Although, it

has been argued on behalf of the State and its

authorities that the bar dancers have taken to the

profession not as an extreme measure, but as a

profession of choice, more often than not, it is a

Hobson's choice between starving and in resorting

to bar dancing. From the materials placed before

us and the statistics shown, it is apparent that

many of the bar dancers have no other option as

they have no other skills, with which they could

earn a living. Though some of the women engaged in

bar dancing may be doing so as a matter of choice,

not very many women would willingly resort to bar

dancing as a profession.

5.Women worldwide are becoming more and more

assertive of their rights and want to be free to

Page 131 131

make their own choices, which is not an entirely

uncommon or unreasonable approach. But it is

necessary to work towards a change in mindset of

people in general not only by way of laws and other

forms of regulations, but also by way of providing

suitable amenities for those who want to get out of

this trap and to either improve their existing

conditions or to begin a new life altogether.

Whichever way one looks at it, the matter requires

the serious attention of the State and its

authorities, if the dignity of women, as a whole,

and respect for them, is to be restored. In that

context, the directions given by my learned

Brother, Justice Nijjar, assume importance.

6.I fully endorse the suggestions made in

paragraph 123 of the judgment prepared by my

learned Brother that, instead of generating

Page 132 132

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.

7.It is all very well to enact laws without

making them effective. 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.

8.These words are in addition to and not in

Page 133 133

derogation of the judgment delivered by my learned

Brother.

...................CJI.

(ALTAMAS KABIR)

New Delhi

Dated: July 16, 2013.