Supreme Court of India
STATE OF MAHARASHTRA & ANR.versusINDIAN HOTEL & RESTAURANTS ASSN. & ORS
- Citation
- 2013 INSC 470
- Decided
- 16 July 2013
- Disposal
- Dismissed
- Bench
- ALTAMAS KABIR
Holding
Sections 33A and 338 of the Bombay Police Act, 1951 are unconstitutional as they violate Articles 14 and 19(1)(g) of the Constitution by creating an unjustifiable classification between prohibited and exempt establishments.
Summary
The Maharashtra government amended the Bombay Police Act, 1951 by inserting sections 33A and 338 to prohibit any dance performance in eating houses, permit rooms and beer bars while exempting certain establishments such as three‑star hotels and members‑only clubs. The amendment was challenged on the ground that it violated Articles 14, 19(1)(g) and other fundamental rights, leading the Bombay High Court to declare the provisions ultra vires. On appeal, the Supreme Court affirmed the High Court's view, holding that the classification between prohibited and exempt establishments was invidious and lacked a rational nexus to the legislative objective. The Court found that the ban was not a reasonable restriction on the freedom to trade, profession or expression and that the State had failed to justify the discrimination. Consequently, sections 33A and 338 were struck down as unconstitutional and the appeal was dismissed.
Issues considered
- The constitutional validity of sections 33A and 338 of the Bombay Police Act, 1951 under Article 14 (equality) of the Constitution.
- Whether the prohibition on dance in certain establishments infringes Article 19(1)(g) (freedom to practice any profession, trade or occupation) and Article 19(1)(a) (freedom of speech and expression).
- The applicability of Article 21 (right to life and livelihood) and Article 15 (prohibition of gender discrimination) to the impugned provisions.
- The adequacy of the State's justification for the classification of establishments and the reasonableness of the restriction.
Legislation cited
- Bombay Police Act, 1951s. 338, s. 33A
Subjects
Bar dancingDance barsBombay Police ActConstitutional validityArticle 14Article 19(1)(g)EqualityFreedom of professionLivelihoodGender discriminationProhibitionReasonable restriction
Judgment
[2013] 7 S.C.R. 654
A STATE OF MAHARASHTRA & ANR.
v.
INDIAN HOTEL & RESTAURANTS ASSN. & ORS.
(Civil Appeal No. 2705 of 2006) ·
JULY 16, 2013
B
[ALTAMAS KABIR, CJI. AND SURINDER SINGH
NIJJAR, J.]
BOMBAY POLICE ACT, 1951:
c
ss. 33A and 33B - Prohibition on bar dancing in State
of Maharashtra - s.33-A prohibiting to hold performance of
dance of any kind or type in any eating house, permit room
or bear bar, but exempting the establishments covered uls
0 33-B from any such restriction - Held: A distinction, the
foundation of which is the classes of establishments and the
classes/kind of p~rsons, who frequent the establishments and
those wfJo own the establishments, cannot be supported under
the Constitutional philosophy - The classification of
establishments covered u/ss 33A and 33B would not satisfy
E the test of equality - The distinction is made on the grounds
of "classes of establishments" or "classes of persons, who
frequent the establishments" and not on the form of dance -
ss. 33A and 33B introduce an invidious discrimination which
cannot be justified under Art. 14 of the Constitution - Yet at
F the same time, both kinds of establishments are to be granted
licenses and regµlated by the same restrictions, regulations
and standing provisions - It would be more appropriate that
the State Government re-examines the recommendations
made by the Committee and the suggestions made in para
G 123 of the judgment to bring about measures which should
ensure the safety and improve the working conditions of the
persons working as bar girls - Constitution of India, 1950 -
Arts. 14, 19(i)(a), 19(1){g) and 21.
H 654
STATE OF MAHARASHTRA v. INDIAN HOTEL & 655
RESTAURANTS ASSN.
CONSTITUTION OF IND/A, 1950: A
Art. 19(1)(g) read with Art. 14 - Prohibition on dance -
s.33-A of Bombay Police Act prohibiting dance of any kind
of type in any eating house, permit room or bear bar - Held:
State has failed to establish that the restriction is reasonable 8
or that it is in the interest of general public- Insertion of s.33-
A in the Bombay Police Act has led to closure of a large
number of establishments and unemployment of over seventy
five thousand woman workers - The impugned legislation
has proved to be totally counterproductive and being ultra
vires Art.19(1)(g), cannot be sustained- Bombay Police Act, C
1951 - ss. 33A- Convention on the Elimination of All Forms
of Discrimination Against Women (CEADAW) - Doctrine of
severability - Doctrine of reading down.
By amendment Act No. 35 of 2005, ss. 33-A and 33- D
B were introduced into the Bombay Police Act, 1951. By
s.33-A, holding of a performance of dance, of any kind or
type, in any eating house, permit room or beer bar was
prohibited; and by ss.33-B it was provided that the
prohibition laid by s.33-A would not apply to the holding E
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 F
tourism policy of the Central or State Government for
promoting the tourism activities in the State; or (b) cultural
activities, the State Government may, by special or
general order, specify in this behalf. Further, violation of
s.33-A(1) was made punishable with a sentence of G
imprisonment up to 3 years and a fine of Rs. 2 lacs. This
led to closure of a large number of establishments and
loss of employment for about seventy-five thousand
women employed in the dance bars in various capacities
in the State. Writ petitions were filed in the High Court
H
656 SUPREME COURT REPORTS [2013] 7 S.C.R.
A contending that ss.33-A and 33-8 were violative of, inter
alia, Arts. 14 and 19(1)(a), 19(1)(g) and 21 of the
Constitution. The High Court declared s.33-A as ultra
vires Arts. 14 and 19(1)(g) of the Constitution of India.
Dismissing the appeal, the Court
B
HELD:
Per Surinder Singh Nijjar, J. (for CJI and for himself):
C 1.1. A distinction, the foundation of which is classes
of the establishments and classes/kind of persons, who
. frequent the establishments and those who own the
establishments cannot be supported under the
Constitutional philosophy so clearly stated in the
Preamble to the Constitution of India and the individual
D Articles prohibiting 'discrimination on the basis of caste,
colour, creed, religion or gender. The Preamble· to the
Constitution of India as also Arts. 14 to 21, as observed
in l.R. Coelho* form the heart and soul of the
Constitution. Taking away of these rights of equality by
· E any legislation would require clear proof of the
justification for such abridgment. [para 100) [738-E-H]
*l.R. Coelho (Dead) by LRs. Vs. State of T.N. 2007 (1)
SCR 706 = 2001 (2) sec 1- relied on.
F
1.2. Section 33A(1 )(a) of the Bombay Police Act, 1951
prohibits holding of a performance of dance, of any kind
or type, in any eating house, permit room or beer bar. This
is a complete embargo on performance of dances in the
establishment covered u/s 33A(1). Section 33A contains
G a non-obstante clause which makes the section stand
alone and absolutely independent of the Act and the rules.
Contravention of s. 33A(1) makes it a criminal offence and
on conviction offender is liable to punishment of 3 years.
On the other hand, the establishments covered .u/s 338
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 657
RESTAURANTS ASSN.
enjoy complete exemption from any such restrictions and A
dance performances are permitted provided the
establishments com ply with the applicable statutory
1
provisions, Bye-Laws, Rules and Regulations. [para 98]
[736-F-H; 737-8-C]
1.3. The classification of the establishments covered
8
u/ss 33A and 338 would not satisfy the test of equality.
The distinction is made on the grounds of "classes of
establishments" or "classes of persons, who frequent the
establishments" and not on the form of dance. There is
no justification that a dance permitted in exempted C
institutions u/s 338, if permitted in the banned
establishment, would be derogatory, exploitative or
corrupting of public morality. Rather it is evident that the
same dancer can perform the same dance in the
exempted institution u/s 33-8 but is prohibited of doing D
so in the establishments covered u/s 33A. There is no
rationale which would justify the conclusion that a dance
that leads to depravity in one place would get converted
to an acceptable performance by a mere change of venue.
The discriminatory attitude of the State is illustrated by E
the fact that an infringement of s. 33A(1) by an
establishment covered under the said provision would
entail the owner being liable to be imprisoned for three
years by virtue of s. 33A(2). On the other hand, no such
punishment is prescribed for establishments covered u/ F
s 338. Such an establishment would merely lose the
licence. Such blatant discrimination cannot possibly be
justified on the criteria of reasonable classification under
Art. 14 of the Constitution. [para 100-101] (738-D-E, H;
739-A; 740-A-D] G
State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa
& Ors. 1974 (1) SCR 771 = 1974 (1) SCC 19; E. V. Chinnaiah
Vs. State of A.P. & Ors. 2004 (5) Suppl. SCR 972 = 2005
(1) SCC 394; Budhan Chaudhry Vs. State of Bihar 1955
=
SCR 1045 AIR 1955 SC 191; Lax mi Khandsari & Ors. Vs. H
658 SUPREME COURT REPORTS [2013] 7 S.C.R.
A State of UP. & Ors. 1981 (3) SCR 92 = 1981 (2) SCC 600
- relied on.
Radice Vs. People of the State of New York 264 U.S. 292
(1924) - cited.
8 1.4. Once the respondents had given prima facie
proof of the arbitrary classification of the establishments
u/ss 33A and 338, it was duty of the State to justify the
reasonableness of the classification. The appellants have
failed to justify by acceptable evidence, inevitable
C consequences or sufficient materials that the restriction,
whether partial or complete, is in public interest and
contains the quality of reasonableness. There was little
or no material on the basis of which the State could have
concluded that dancing in the prohibited establishments
D was likely to deprave, corrupt or injure the public morality
or morals. [para 100-101 and 104] [738-H; 739-A, 8-C, D-
E; 743-E]
1.5. The so called distinction is based pureiy on the
basis of the class of the performer and the so called
E · superior class of audience. It cannot be presumed that the
class to which an individual or the audience belongs
brings with him as a necessary concomitant a particular
kind of morality or decency. The presumption which runs
F through ss. 33A and 338 that the enjoyment of same kind
of entertainment by the upper classes leads only to mere
enjoyment and in the case of poor classes it would lead
to immorality, decadence and depravity, cannot be
accepted. Morality and depravity cannot be pigeon-holed
by degrees depending upon the classes of the audience.
G The said presumption is also perplexing on the ground
that in the banned establishments even a non-obscene
dance would be treated as vulgar. On the other hand, it
would be presumed that in the exempted establishments
any dance is non-obscene. The underlying presumption
H at once puts the prohibited establishments in a
STATE OF MAHARASHTRA v. INDIAN HOTEL & 659
RESTAURANTS ASSN.
precarious position, in comparison to the exempted class A
for the grant of a licence to hold a dance performance.
The presumption is elitist, which cannot be countenanced
under the egalitarian philosophy of the Constitution. Thus,
s~. 33A and 338 introduce an invidious discrimination
which cannot be justified under Art. 14 of the Constitution. B
Yet at the same time, both kinds of establishments are to
be granted licenses and regulated by the same
restrictions, regulations and standing provisions. [para
102-103) [741-F-H; 742-A-C, E-F]
Charanjit Lal Chowdhury Vs. Union of India & Ors. C
1950 SCR 869 =AIR 1951 SC 41; Ram Krishna Dalmia Vs.
Justice S.R. Tendolkar 1959 SCR 279 =AIR 1958 SC 538;
State of Uttar Pradesh Vs. Kaushailiya & Ors. 1964 SCR 1002
=AIR 1964 SC 416; and Shashikant Laxman Kale & Anr.
Vs. Union of India & Anr. 1990 (3) SCR 441 =1990 D
(4) sec 366 - referred to.
1.6. A perusal of the Objects and the Reasons would
show that the impugned legislation proceeds on a
hypothesis that different dance bars are being used as E
meeting points of criminals and pick up points of the
girls. But the Objects and Reasons say nothing about
any evidence having been presented to the Government
that these dance bars are actively involved in trafficking
of women. Isolated examples would not be sufficient to F
establish the connection of the dance bars covered u/s
33A with trafficking. Therefore, it cannot be said that the
ban has been placed for the protection of the vulnerable
women. [para 105) [743-G-H; 744-8-C]
1.7. The Legislature is free to recognize the degrees G
of harm· and may confine its ~estrictions to those cases
where the need is deemed to be clearest. Further, the
State may direct its law against what it deems the evil as
it actually exists without covering the whole field of
H
660 SUPREME COURT REPORTS (2013) 7 S.C.R.
A possible abuses, but such conclusion have to be
reached either on the basis of general consensus shared
by the majority of the population or on the basis of
empirical data. The State neither had the empirical data
to conclude that dancing in the prohibited establishment
B necessarily leads to depravity and corruption of public
morals nor was there general consensus that such was
the situ.ation. The three reports presented before the High
Court in fact have presented divergent view points. In the
instant case, the appellant has failed to give any details
c of any experience which would justify such blatant
discrimination, based purely on the class or location of
an establishment. [para 106] [744-D-G; 745-A]
Ram Krishna Dalmia Vs. Justice S.R. Tendo/kar
1959 SCR 279 =AIR 1958 SC 538; Mohd. Hanif Quareshi
D Vs. State of Bihar 1959 SCR 629 =AIR 1958 SC 731 -
referred to.
Joseph Patsone Vs. Commonwealth of Pennsylvania
232 U.S. 138 (1914) - cited.
E
1.8. The State has failed to justify the classification
between the exempted establishments and prohibited
establishments on the basis of surrounding
circumstances; or vulnerability. Undoubtedly, the
F legislature is the best judge to measure the degree of
harm and make reasonable classification but when such
a classification is challenged the State is duty bound to
disclose the reasons for the ostensible conclusions. In
the instant case, the legislation is based on an
unacceptable presumption that the so called elite i.e. rich
G and the famous would have higher standards of
decency, morality or strength of character than their
counter parts who have to content themselves with
lesser facilities of inferior quality dance bars. Such a
presumption is abhorrent to the resolve in the Preamble
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 661
RESTAURANTS ASSN.
to the Constitution to secure the citizens of India, A
"Equality of status and opportunity and dignity of the
individual". The State Government presumed that the
performance of an. identical dance item in the
establishments having facilities less than 3 stars would
be derogative to the dignity of women and would be likely B
to deprave, corrupt or injure public morality or morals;
but would not be so in the exempted establishments.
These are misconceived notions of a bygone era which
ought not to be resurrected. [para 107] [745-B-F]
1.9. The activities which are obscene or which are C
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 D
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 E
unconstitutional and particularly contrary to Art. 14 of the
Constitution of India. [para 108] (746-E-G]
Gaurav Jain Vs. Union of India 1997 (2) Suppl. SCR
=
105 1997 (8) SCC 114 - referred to. F·
2.1. Upon analyzing the entire fact situation, the High
Court has rightly held that dancing would be a
fundamental right and cannot be excluded by dubbing
the same as res extra commercium. The State has failed
to establish that the restriction is reasonable or that it is G
in the interest of general public. The High Court noticed
that in the guise of regulation, the legislation has
imposed a total ban on dancing in the establishments
covered u/s 33A. [para 110] (747-E-G]
H
662 SUPREME COURT REPORTS [2013] 7 S.C.R.
A Narendra Kumar & Ors. Vs. Union of India & Ors. (1960)
2 SCR 375; and Maneka Gandhi Vs. Union of India & Anr.
1978 (2) SCR 621 = 1978 (1) SCC 248 - referred to.
·2.2. There are already sufficient rules and regulations
and legislation in place which, if efficiently applied, would
8
control if not eradicate all the dangers to the society
enumerated in the Preamble and Objects and Reasons
of the impugned legislation. There is no material placed
on record by the State to show that it was not possible
to deal with the situation within the framework of the
C existing laws except for the unfounded conclusions
recorded in the Preamble as well the Objects and
Reasons. Sufficient power is vested with the Licensing
Authority to safeguard any perceived violation of the
dignity of women through obscene dances. [para 110
D and 116] [747-H; 748-A; 751-F-G; 752-B-C]
State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat
& Ors. 2005 (4) Suppl. SCR 582 = AIR 2006 SC 212 -
referred to.
E
2.3. From the Objects of the impugned legislation and
amendment itself, it is crystal clear that the legislation
was brought about on the admission of the police that it
is unable to effectively control the situation in spite of the
existence of all the necessary legislation, rules and
F regulations. It cannot be said that the impugned
enactment is a form of additional regulation, as it was felt
that the existing system of licence and permits were
insufficient to deal with problem of ever increasing dance
bars. [para 117 and 119) [752-C-D; 753-F-G]
G
State of Bombay Vs. R.M.D. Chamarbaugwala & Anr.
1957 SCR 874 =AIR 1957 SC 699; Khoaay Distilleries Ltd.
& Ors. Vs. "State of Kamataka & Ors. 1994 (4) Suppl. SCR
477=1995 (1) SCC 574; and State of Punjab & Anr. Vs.
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 663
RESTAURANTS ASSN.
Devans Modern Breweries Ltd. & Anr. 2003 (5) Suppl. A
SCR 930 = 2004 (11) SCC 26 ...,. held inapplicable
New York State Liquor Authority.Vs. Dennis BELLANCA,
DBA The Main Event, Et Al. 452 I.IS. 714 (1981); Regina
Vs. Bloom 1961 3 W.L.R. 611 - cited.
B
2.4. ·The end result of the prohibition of any form of
dancing in the establishments covered uls 33A leads to
the only conclusion that these establishments have to
shut down. This is e.vident from the fact that since 2005,
most if not all the dance bar establishments have literally C
closed down. This has led to the unemployment of over
75,000 women workers. It has been brought on the record
that many of them have been compelled to take up
prostitution· out of necessity for maintenance of their
families. The impugned legislation has proved to be D
totally counterproductive and being ultra vires
Art.19(1}(g}, cannot be sustained. [para 120] [754-B-D]
2.5. It is not possible to read down the expression
"any kind or type" of dance by any person to mean E
dances which are obscene and derogatory to the dignity
of women. Such reading down cannot be permitted so
long as any kind of dance is permitted in establishments
covered u/s 338. [para 121] [754-F-G]
Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi , F
=
(Smt.) 2008 (3) SCR 330 2008 (4) SCC 720 - referred to.
2.6. By applying the doctrine of severability, even if
s.338 is declared unconstitutional, the statute would still
retain the provision contained in s.33A which prohibits G
any kind of dance by any person in the establishments
covered u/s 33A. [para 122] [754-H; 755-A]
3.1. The Committee comprising of the Chairman of
AHAR, Public and Police Officials. and chaired by the
Principal Secretary (E.I.), Home Department, had H
664 SUPREME COURT REPORTS [2013) 7 S.C.R.
A prepared a report and submitted the same to the State
Government. The State Government had in fact sent a
communication dated 16th July, 2004 to all Judicial
Magistrates and Police Commissioner to amend the rules
for exercising control on hotel establishments presenting
B dance programmes. It would be more appropriate that the
State Government re-examines the recommendations
made by the Committee and the suggestions made in
para 123 of the judgment to bring about measures which
should ensure the safety and improve the working
c conditions of the persons working 'as bar girls. As has
been observed by this Court in the case of Anuj Garg
instead of. putting curbs on women's freedom,
empowerment would be more tenable and socially wise
approach. This empowerment should reflect in the law
enforcement strategies of the State as well as law
0
modeling done in this behalf. In the instant case, the
restrictions in the nature of prohibition cannot be said to
be reasonable, inasmuch as there could be several lesser
alternatives available which would have been adequate
to ensure safety of women than to completely prohibit
E dance. In fact, a large number of alternative steps could
be taken instead of completely prohibiting dancing, if the
real concern of the State is the safety of women. [para
123-124] [755-B-D; 756-E-H; 757-A]
F Welfare Association, A.R.P., Maharashtra & Anr. Vs.
Ranjit P. Gohil & Ors. 2003 (2) SCR 139 = 2003 (9) SCC 358;
S.P. Mittal Vs. Union of India & Ors. 1983 (1) SCR729 =
(1983) 1 SCC 51; Kedar Nath Bajoria & Anr. Vs. The State
of West Bengal 1954 SCR 30; Municipal Corporation of the
G City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai
& Anr. 1986 (2) SCR 700 =1986 (3) SCC 20; T.B. Ibrahim Vs.
Regional Transport Authority, Tanjore (1953] 4 SCR 290;
Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. Vs.
Union of India & Ors. 1981 (2) SCR 52 =AIR 1981 SC 344;
H v:
State of Madras Vs. G. Row 1952 SCR 597 = AIR 1952 SC
STATE OF MAHARASHTRA v. INDIAN HOTEL & 665
RESTAURANTS ASSN.
196, B.P. Sharma Vs. Union of India & Ors. 2003 (2) Suppl. A
SCR 684 = 2003 (7) SCC 309, M.R.F. Ltd. Vs. Inspector
Kera/a Govt. & Ors. 1998 (2) Suppl. SCR 632=1998 (8) SCC
227; M.J. Sivani & Ors. Vs. $fate of Kamataka & Ors. (1995)
6 SCC 289; State of Bihar & Ors. Vs. Bihar Distillery Ltd. &
Ors. 1996 (9) Suppl. SCR 479 =1997 (2) SCC 453; Kedar B
Nath Singh Vs. State of Bihar 1962 Suppl. SCR 769 =AIR
1962 SC 955; Sakal Papers (P) Ltd; & Ors. Vs. The Union
of India (1962) 3 SCR 842; Anuj Garg & Ors. Vs. Hotel
Association of India & Ors. 2007 (12) SCR 991 = 2008 (3 )
SCC 1; Government of A.P. Vs. P.B. Vijayakumar & Anr. c
1995 (1) Suppl. SCR 462 = 1995 (4) SCC 520; Mis. Laxmi
Khandsari & Ors. Vs. State of U.P. & Ors. 1981 (3) SCR
92=1981 (2) SCC 600 Rustom Cavasjee Cooper Vs. Union
of India 1970 (3) SCR 530 = 1970 (1) SCC 248 Bharat
Bhawan Trost Vs. Bharat Bhawan Artists' Association & Anr. 0
2001 (2) Suppl. SCR 27 = 2001 (7) SCC 630; D.S. Nakara
& Ors. Vs. Union of India 1983 (2) SCR 165 = 1983 (1)
SCC 305 ; Sanjeev Coke Manufacturing Company Vs. Mis
Bharat Coking Coal Limited & Anr. 1983 (1) SCR 1000 =
1983 (1) SCC 147; Sodan Singh & Ors. Vs. New Delhi
. Municipal Committee & Ors. 1989 (3) SCR 1038 = 1989 (4) E
sec 155 - cited
Consolidated Coke Co. Vs. Taylor 234 U.S.224 (1913);
Paris Adult Theatre I Et. Al Vs. Lewis R. Slaton, District
Attorney, Atlanta Judicial Circuit, Et. Al 413 U.S. 49 [1973] - F
cited.
Per Altamas Kabir, CJI. (Supplementing):
1. The right to practise a trade or profession and the
right to life guaranteed under Art. 21 are, by their very G
nature, intermingled with each other. It would be better
to treat the cause than to blame the effect and to
completely discontinue the livelihood. of a large section
of women, eking out an ex!stence by dancing in bars,
who will be left to the mercy of other forms of exploitation. H
666 SUPREME COURT REPORTS [2013) 7 S.C.R.
A Instead of generating unemployment, it may be wiser for
the State to look into ways and means in which
reasonable restrictions may be imposed on bar dancing,
but without completely prohibiting or stopping the same,
as suggested in para 123 of the main judgment. (para 4
B and 6) [757-G-H; 758-A-B; 759-A-B]
2. The State has to provide alternative means of
support and shelter to persons engaged in such trades
or professions, some of whom are trafficked from different
parts of the country and have nowhere to go or earn a
c living after coming out of their unfortunate circumstances.
A strong and effective support system may provide a
solution to the problem. [para 7) [759-B-C]
Case Law Reference:
D
Per Nijjar,J.
1990 (3) SCR 441 cited para 25
2003 (2) SCR 139 cited para 26
E 1964 SCR 1002 held inapplicable para 30
1959 SCR 279 referred to para 35
232 U.S. 138(1914) referred to para 35
234 U.S.224 (1913) cited para 36
F
264 U.S. 292 (1924) cited para 37
1959 SCR 629 referred to para 38
1983 (1) SCR 729 cited para 40
G 413 U.S. 49 cited para 44
1954 SCR 30 cited para 46
2005 (4) Suppl. SCR 582 referred to para 49
H 1986 (2) SCR 700 cited para 49
STATE OF MAHARASHTRA v. INDIAN HOTEL & 667
RESTAURANTS ASSN.
[1953) 4 SCR 290 cited para 54 A
1957 SCR 874 held inapplicable para 55
1994 (4) Suppl. SCR 477 held inapplicable para 55
2003 (5) Suppl. SCR 930 held inapplicable para 56
B
452 U.S. 714 (1981) held inapplicable para 56
1961 3 W.L.R. 611 cited para 57
1981 (2) SCR 52 cited para 58
1952 SCR 597 cited para 61 c
2003 (2) Suppl. SCR 684 cited para 61
1998 (2) Suppl. SCR 632 cited para ~1
'
(1995) 6 sec 289 cited para 63 D
1950 SCR 869 cited para 65
1996 (9) Suppl. SCR 479 cited para 66
2008 (3) SCR 330 cited para 68
·._~
E
1962 Suppl. SCR 769 cited para 69
2007 (1) SCR 706 relied on para 72
(1962) 3 SCR 842 cited para 72
2007 (12) SCR 991 cited para 72 F
1981 (3) SCR 92 cited para 73
1995 (1) Suppl. SCR 462 cited para 74
1981 (3) SCR 92 relied on para 76
G
(1960) 2 SCR 375 cited para 77
1970 (3) SCR 530 cited para 79
1978 (2) SCR 621 cited para 79
2001 (2) Suppl. SCR 27 cited para 79 H
668 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 1983 (2) SCR 165 cited para 81
1983 (1) SCR 1000. cited para 83
1989 (3) SCR 1038 cited para 88
1955 SCR 1045 cited para 92
B
1974 (1) SCR 771 cited • para 98
2004 (5) Suppl. SCR 972 cited . para 99
C CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2705 of 2006.
From the Judgment & Order dated 12.04.2006 ofthe High
Court of Judicature at Bombay in W.P. Nos. 2450, 2052, 233S
& 2587 of 2005.
D
WITH
C.A. Nos. 2704 of 2006 & 5504 of 2013
. .
Shekhar Naphade, Mukul Rohatgi, Anand Grover, Dr.
E Rajeev Dhawan, Ravindra Adsure, Subhangi Tuli, Asha
Gopalan Nair, Sanjay Kharde, Preshit V. Surshe, Veena
Thadani, Satyajit Saha, Prasenjit Keswani, Vishal Thadani,
Sourabh Kripal, V.D. Khanna, Meenakshi Arora, Aparna Bhat,
Rajkumari 8., Upasana G., Nikhil Nayyar, Tripti Tandon,
F Amritananda Ch., Naveen R. Nath, Manoj K. Mishra, Sanjay K.
Visen, Shiv Pati B. Pandey, Venkateswara Rao Anumolu,
Vishwajit Singh, Satyajit A. Desai, Somanath Padhan, Anagha
S. Desai, Kamini Jaiswal, Sunil Kumar Verma, Chander
Shekhar Ashri for the Appearing parties.
G The Judgments of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. Leave granted in SLP
(C) No.14534 of 2006.
2. These civil appeals seek to challenge common
H
STATE OF MAHARASHTRA v. IND1AN HOTEL & 669
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
judgment and final order dated 12th April, 2006 in Writ Petition A
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 B
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 - C
The Bombay Police Act, 1951 (hereinafter 'the Act') was
enacted in the year 1951 with the object of consolidating and
amending the law relating to the regulation of the exercise of
powers and performance of the functions by the State
0
Government for maintenance of public order. Section 33 of the
Act authorises the State Government to frame rules regulating
places of public amusement and entertainment. By virtue of
Section 33 of the Act, the "Rules for Licensing and Controlling
Places of Public Amusement (other than Cinemas) and
Performances for Public Amusement including Me/as & E
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 F
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 G
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
H
670 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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.
B The Government of Maharashtra, Home Department, on
10th December, 2002 passed resolution No. REH 012002/
153/SE-5, noting therein :
"It has come to notice that prostitution rackets are being
c 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
D 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
E 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
F 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
G
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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 671
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
circulated to all the concerned authorities through the letter of A
the Home Department No. REH 012002/153/SB-5 dated 16th
July, 2004. In this letter, the suggested regulations were
summarized as follows:
a. There should be restrictions on the attire of the 8
dancers.
b. Dancing area must have a railing 3 feet high
around it, and customer seats should be at least 5
feet away from the railing.
c
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 D
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 E
residence.
6. This letter instructed all Judicial Magistrates and Police
Commissioners to implement these recommendations with
immediate effect.
F
7. On 6th August, 2004 the Chairperson of the
Maharashtra State Commission for Women wrote to the State
Government about the ongoing racketeering to lure girls to work
in dance bars and their consequent acts of prostitution and
immoral trafficking stating: G
"Number of rackets indulging into physical and financial
exploitation of girls working in dance bars by forcibly
bringing them into this profession are found to be
increasing alarmingly. In the metropolis of Mumbai, the H
672 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 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
B
"Most of the girls working in Dance Bars of Maharashtra
State do not hail from State of Maharashtra, but come from
other States."
c
"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."
D
8. The letter went on to recommend a ban on such
establishments by stating:
"I therefore, request you that the system of issuing permits
E 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
F 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 1O girl children rescued
G from dance bar(s) under Immoral Traffic
(Prevention) Act, 1956.
b. Copies of complaints of victims' families against
illicit relations with bar dancers.
H C. Copies of complaints of Social Organizations
STATE OF MAHARASHTRA v. INDIAN HOTEL & 673
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
against dance bars. A
d. Copies of FIRs of cases registered in relatio.n to
dance bars.
e. Summary of cases registered under the Immoral
Traffic (Prevention) Act, 1956, u/s 294 IPC, u/s B
33(w) & 110 of Bombay Police Act, 1951 during the
period 2000~2005 regarding dance bars.
10. Apart from this, a study of the soci~conomic situation
and rehabilitation needs of the women in dance bars was c
conducted by PRAYAS (a field action project of the Tata Institute
of Social Sciences) in 2005. This study pointed out the relevant
facts regarding exploitation of minor girls in dance bars. The
study also pointed out that there was presence of the element
of human trafficking in the entir~ process; and that the o
environment of the dance bars was found to have negative
impact on the physical and mental health of the rpinor girls. The
study also pointed out that the atmosphere in the dance bars
increased the vulnerability of the minor children to sexual
exploitation. It is also the case of the appellants that independent E
of registration of offences under Bombay Police Act and PITA
Act as well as IPC, several complaints had been received from
various segments of society urging the State Government to
take steps for closure of the dance bars by legislative action.
11. Taking into consideration the aforesaid material, the F
members of the Maharashtra Legislative Assembly expressed
deep concern over the ill effects of dance bars on youth and
dignity of women. lhe Assembly further felt that the existing
measures were insufficient to tackle the subject. Just at that
time, a 'Call Attention Motion' was tabled by Shri Vivek Patil G
in the State Legislative AssembJy on 30th March, 2005. A
detailed reply was given by Shri R~R. Patil, Hon'bfe Dy. Chief
Minster to the same, on 21st July, 2005. Taking stock of the
entire situation, the State Government came to a tentative
opinion that performance of dances in eating houses, permit H
674 SUPREME COURT REPORTS [2013) 7 S.C.R.
A rooms or beer bars in an indecent manner is derogatory to the
dignity of women and is likely to deprave, corrupt and/or injure
public morality. It was evident on the basis of the material
available to the Government that permit rooms or beer bars
licensed under the relevant rules, were indulging ih exploitation
B of women by permitting the performance of dances in an
indecent obscene or vulgar manner. The Government, therefore,
considered it expedient to prohibit such dance performances
in eating houses or permit rooms or beer bars.
12. It was emphasised that even prior to the aforesaid
C 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
D 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,
E 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
F introduced in Maharashtra Legislative Assembly on 14th July,
2005. The Bill was passed by the Legislative Assembly on 21st
July, 2005 and by the Legislative Council on 23rd July, 2005.
The amended Act No. 35 of 2005, incorporating Sections 33A
& 33B in the Bombay Police Act, 1951, came into force after
G receiving the assent of the Governor of the Maharashtra by
publishing in the Maharashtra Gazette on 14th August, 2005.
Writ Petitions before the High Court of Bombay
14. The Amendment to the Bombay Police Act of 1951,
H introducing Sections 33A and 33B, was challenged as being
STATE OF MAHARASHTRA v. INDIAN HOTEL & 675
RESTAURANTS ASSN. [SURINOER SINGH NIJJAR, J.]
unconstitutional in several writ petitions before the High Court A
of Bombay; which are tabulated as under:
Writ Petition Number Party
WP 2450/2005 Indian Hotel and Restaurants Owners
Association, an Association of various B
hotel owners and bar owners and/or
conductors of the same, who carry on
business of running restaurants and
bars in Mumbai.
c
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.
D
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.
E
WP 2587/2005 The· 1st petitioner is a trust registered
under the Public Trust Act, working with
sex workers in the Malvani area of
Malad in Mumbai. The 2nd petitioner is
the Ekta Self Group which consists of F
1O bar dancers.
WP 1971/2005 Criminal WP The petitioner is the
Association of Dance Bar owners duly
registered under the Trade Unions Act,
G
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. H
676 SUPREME COURT REPORTS [2013] 7 S.C.R.
A WP 5503-5504/2005 Proprietors of two establishments who
are affected by the amendments to the
Police Act.
It was contended:
B 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.
c
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
D 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
E 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
F 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
G not an "eating place" under S.2(5A) of the Bombay
Prohibition Act, 1951 and hence the provisions do
not bind the petitioners.
That S. 33A and 338 are arbitrary under Article 14
H as they provide for different standards of morality
STATE OF MAHARASHTRA v. INDIAN HOTEL & 677
RES:rAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
to institutions with similar activities and that the A
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 B
of gender discrimination as the dancers are mainly
women.
That there is violation of Article 19 (1)(a) as dance
is a form of expression and that the impugned
enactment is ari unreasonable restriction and it is C
not by protected by Article 19(2).
That there ls an unreasonable restriction on right to
freedom of profession as the State Government
permitted and granted licenses for running such o
establishments being Res Commercium and that
it deprives the bar owners of their right to carry on
business and bar dancers the right to carry on their
. profession.
That right to life under Article 21 is infringed as right E.
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: F
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.
G
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. H
678 SUPREME COURT REPORTS [2013) 7 S.C.R.
A That there is no violation of Article 19(1)(a) as the
dance being conducted is not an expression but a
profession where restrictions can be imposed.
That there is no violation of Article 15 as the ban
on obscene dance applies to men .and wqmen.
B
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
c escalated prostitution whic~ lead to registration of
several cases under Prevention of Immoral
Trafficking Act and under Bombay Police Act. That
this led the legislatures to make an independent
classification of these establishments to safeguard
D 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.
E
That with regard to Article 19(1) (g) there is no
absolute right to conduct trade or profession and
that the same is subject to public order, decency
and morality and hence the restriction is reasonable
and justified.
F
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
G 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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 679
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
the difference is not capable of precise legislative definition, it A
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 B
enactment is discriminatory.
i 17. With these observations, the High Court declared that
Sections 33A and 33B of the Bombay Police Act, 1951 are
ultra vires Articles 14 and 19(1)(g) of the Constitution of India. C
18. We have heard th~ learned counsel for the parties at
some length. But before we notice the submissions at this
stage it would be appropriate to reproduce the provisions in
Sections 33A and 33B of the Bombay Police Act, 1951.
D
Sections 33A and 338 of the Bombay Police Act:
19. The provisions read as under:
"33A(1) Notwithstanding anything contained in this Act or
the rules made by the Commissioner of Police or the E
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,-
F
(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 G
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.
H
680 SUPREME COURT REPORTS [2013] 7 S.C.R.
A (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
8 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
c 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
D hold a dance performance of any kind or type in his eating
house, permit room or beer bar, the Licensing Authority
shall, notwithstanding anything contained in the rules
framed under section 33, suspend the Certificate of
Registration as an eating house and the licence to keep
E 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
F suspending the Certificate of Registration and the licence
or cancel the Certificate of Registration and the licence.
(4) ................. .
(5) ............... ·····
G
(6) The offence punishable under this section shall be
cognizable and non-bailable.
338. Subject to the other provisions of this Act, or any
other law for the time being in force, nothing in section 33A
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 681
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
shall apply to the holding of a dance performance in a 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 B
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 C
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."
D
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 E
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, F
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 G
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 H
682 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B 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
c Government considers it expedient to prohibit the
holding of such dance performances in eating
houses or permit rooms or beer bars.
(2) In the last Budget Session of the State Legislature,
by way of a Calling Attention Motion, the attention
D 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
E 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
F 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
G 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
H or cinema theatre or auditorium; registered sports
STATE OF MAHARASHTRA v. INDIAN HOTEL & 683
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
club or gymkhana; or three starred or above botel; A
or in any other establishment or class
establishments which the State Government may
specify having regard to tourism policy for
promotion of tourism in the State or c.ultural
activities, are not barred but all such establishments B
shall be required to obtain performance licence in
accordance with the said rules, for holding a dance
performance.
3.
-
The Bill is intended to achieve the following C
objectives."
Preamble
"Whereas the Commissioners of Police, District
Magistrates and certain other Officers, have granted 0
performance licences for holding dance performance;
And whereas the object of granting such performance
licences is to hold such dance performance for public
amusement;
E
And whereas it is brought to the notice of the State
Gov.ernment that the eating houses, permit rooms or beer
bars to whom licences to hold a dance performance have
been granted are permitting performance of dances in an
indecent, obscene or vulgar manner; F
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 G
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 H
684 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B
houses, permit rooms and beer bars."
Legal Submissions:
21. Mr. Harish N. Salve, Mr. Gopal Subramanium and Mr.
c 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
0 the aforesaid learned senior counsel.
22. Learned senior counsel have made submissions
confined only to the issue as to whether Sections 33A and 338
of the Bombay Police Act infringe Article 14 and with regard
to the provisions being ultra vires Article 19(1 )(g) of the
E 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.
F 23. Learned counsel for the appellants submitted that the
classification made by the impugned enactment is based on
intelligible differentia, having a nexus with the object sought to
be achieved. It is submitted that the impugned order suffers
from flawed reasoning. The classification made between
G establishments under Sections 33A and 338 is not solely on
the basis of the different kinds of dance performances but also
on differing social impact such establishments have, by virtue
of having differing dance performances and surrounding
circumstances including the customers. Therefore according to
H Mr. Gopal Subramanium, the establishments must be
STATE OF MAHARASHTRA v. INDIAN HOTEL & 685
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
understood in broader terms than is understood by the High A
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 B
the two provisions and the object sought to be achieved. Mr.
Gopal Sul;>ramanium has listed the differences factored into the
classification made by the impugned enactment. According to
the learned senior counsel, the impugned enactment is based
on intelligible ~ifferentia which could be categorized under the C
following broad heads:
(i) Type of dance; (ii) Form of remuneration; (iii) Demand
for vulnerable women; (iv) Degree of Harm; (v) Regulatory
feasibility.
D
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 E
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, F
it is not just that the type of dance performed is different but
the surrounding circumstances are also different. In the
exempted establishments, the distance between the dancing
platform and the audience is greater than at the banned
establishments. This, according to the learned senior counsel,
is sufficient to justify the classification between the exempted G
establishments and the banned establishments. Therefore, it
cannot be said that the classification is palpably arbitrary. In
support of the submissions, the learned senior counsel relied
on the observations made by this Court in Shashikant Laxman
H
686 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B
needs of the times and societal exigencies informed by
experience to determine reasonableness of the
classification.
26. Reliance was also placed Welfare Association,
C 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
D 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."
E
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
F between the dancers to attract the attention of the customers.
Therefore, each dancer tries to outdo her competitors in terms
of sexual suggestion through dance. This, in turn, creates an
unsafe atmosphere not just for the dancers. but also for the
other female employees of such establishments.
G
28. Relying on the report by Shubhada Chaukhar, learned
senior counsel submitted that 84% of the bar dancers are from
1. (1990) 4 sec 366.
H 2. c2003) 9 sec 358.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 687
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
outside the State of Maharashtra. These girls are lured into bar A
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 B
. 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 C
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 D
bar(s) under Immoral Traffic (Prevention) Act, 1956; complaints
of victims family against illicit relations with bar dancers;
complaints of social organi7ations against dance bars; copies
of First Information Reports of cases registered in relation to
dance bars; summary of cases registered under PITA Act, E
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 F
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 G
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
H
688 SUPREME COURT REPORTS [2013] 7 S.C.R.
A of State 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.
B
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
C (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
D 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
E 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
F vulnerable women, who may not have families and
communities to turn to and are completely dependent on their
employers. In support of the aforesaid submissions, reliance
was placed upon Prayas and Shubhada Chaukar Reports.
G 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
H 3. AIR 1964 SC 416.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 689
. RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
classification on the criterion of "Degree of Harm." The A
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 B
classify these establishments as a separate class based on-the
degree of harm that they trigger. Support for this submission
is sought from the observations made by this Court in Ram
Krishna Dalmia Vs. Justice S.R. Tendolkar' wherein it was
observed as follows: c
"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."
D
35. Reliance was also placed on the observations made
in 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 E
property. The possession of shot guns and rifles by such
persons was made unlawful. The Act was challenged as being
unconstitutional under due process and equal protection
provisions of the 14th Amendment of the United States
Constitution. The Court upheld the Act as constitutional and F
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 G
reasonably might be considered to define those from
whom the evil mainly is to be feared, it properly may be
4. AIR 1958 SC 538.
5. 232 U.S. 138 (1914). H
690 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 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
B 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
c 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.
D
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
E 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
F in Keokee Consolidated Coke Co. Vs. Tay/o~. which are as
follows:
"It is more pressed that the act discriminates
unconstitutionally against certain classes. But while there
are differences of opinion as to the degree and kind of
G 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
H 6. 234 U.S.224 (1913).
STATE OF MAHARASHTRA v. INDIAN HOTEL & 691
RESTAURANTS ASSN. [SURlt>!_DER SINGH NIJJAR, J.]
thinking up and enumerating other instances to which it A
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
8
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 :
c
"Nor is the statute vulnerable to the objection that it
constitutes a denial of the equal protection of the laws. The
points urged under this head are (a) that the act
discriminates between cities of the first and second class
and other cities and communities; and (b) excludes from o
its operation women employed in restaurants as singers
and performers, attendants in ladies' cloak rooms and
parlors, as well as in lunch rooms or restaurants conducted
by employees solely for the benefit of their employees.
The limitation of the legislative prohibition to cities of the E
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 F
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); G
but a case where all in the same class of work are
included in the restraint. Of course, the mere fact of
classification is not enough to put a statute beyond reach
7. 264 U.S. 292 (1924). H
692 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
8 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
C 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
o Bihar, 8 wherein the court held as under:
"......... The Courts, it is accepted, must presume that the
legislature understands and correctly appreciates the
needs of its own people, that its laws are directed to ·
problems made manifest by experience and that its
E 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
F 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."
G
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
H 8. AIR 1958 SC 731.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 693
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
"Degree of Harm". The legislature is the best judge to measure A
the degree of harm and make reasonable classification.
40. Coming to the next factor- Regulatory Feasibility,
which, according to the learned senior counsel, supports the
validity of the classification. It was submitted that the import of 8
the impugned enactment is not that, what is prohibited in
establishments under Section 33A is to be permitted in
establishments under Section 338. It is submitted by the
appellants that the acts which are degrading, dehumanising and
facilitating of gender violence in society do not cease to be so
simply by virtue of it being made exclusively available to an C
economically stronger sections of society. It is the submission
of the appellants that the State has already made extensive
regulatory provisions under various enactments. This relates to .
the grant of nature of license, terms and conditions of such
licence, perfonnance permits. All these regulatory measures are D
with a view to cure social evils. The impugned enactment,
according to-the appellants, is a form of an additional
regulation. It is justified on the ground that the existing system
of licenses and pennits is not sufficient to deal with the problem
of ever increasing "dance bars". Relying on the observations E
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 F
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 G
to make a contract of employment for themselves. The
answer of the state is that night work of kind prohibited,
so injuriously threatens to impair their peculiar and natural
functions, and so exposes them to the dangers and
9. (1983) 1 sec s1. H
694 SUPREME COURT REPORTS [2013) 7 S.C.R.
A menaces incident to night life in large cities, that a statute
prohibiting such work falls within the police power of the
state to preserve and promote the public health and
welfare.
The legislature had before it a mass of information from
B
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
c 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
D 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
E 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
F engaging in it to justify its suppression; and, since we are
unable to say that the finding is clearly unfounded, we are
precluded from reviewing the legislative determination".
41. Relying on the aforesaid, it is submitted that exempted
establishments as understood by Section 338 are gymkhanas,
G 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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 695
RESTAURANTS ASSN. (SURIND_ER SINGH NIJJAR, J.]
the standards expected of them under the regulation . . A
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 B
establishments, which at present are six in number, than
attempting to police the much greater number of prohibited
establishments. It is also pointed out that in cases wnere an
exempted establi.shment is found carrying out activities
prohibited in S.33A, it is incumbent on the relevant authority to c
revoke the permission for such acts; Therefore, it was su.bmitted
that the significant difference in feasibility of regulation i~ ;another
basis for classifying prohibited establishments. The High Court,
according to the counsel, failed to examine the two provisions
in•a··proper perspective.
D
42. The next submission of the appellants is that "the
objective of the Act is an expression of the Obligation on the
. State to secure safety, social ordet, public order and dignity of
women." It is submitted that a bare perusal of tlie Preamble of
the amending Act and the State.t\ient of Objects and Reasons E
·~ would make it clear that the St~;te enacted the legislation only
after receipt of complaints from various social organiZations as
Well as from various individuals. The Preamble makes it clear
that the legislature had enough material to show that the
performance of dance in the $aid bars gives rise to exploitation F
of women, and further that the performance of dances in eating
houses, permit rooms or be~r bars are derogatory to the dignity
of women and are likely to d~prave, corrupt or injure the public
morality or morals. The High Court ought to have considered
the Statement of Objects and Reasons and Preamble of the G
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:
H
696 SUPREME COURT REPORTS [2013) 7 S.C.R.
A · "It is first necessary to discern the true purpose or object
of the impugned enactment because it is only With
reference to the true object of the enactment that =ttre
existence of a rational nexus of the differentia on which the ' .
classification is based, with the object sought to be
B achieved by the enactment, can be ,examined to test the
validity of the classification .... •
43. It was reiterated that the High Court has given a very.
restrictive interpretation to the phrase "exploitation of women".
The expression would include not only the women who dance
C in the prohibited establishments but also the waitresses who
work in the same establishments. It would also include the effect
of the dance bar on gender rel'ations of not just the bar danqer,
but for the women around the area. The High Court, according
to the appellants, failed to take into account the object that the .
D 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
E 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
F prohibition. It is further submitted that the State is bound by this
duty to protect the interest of its citizens especially its weaker
sections under the Constitution. The legislation is sought to be
justified on the touchstone of Article 23, Article 39(e) and Article
51A(e) of the Constitution. The action of the Government is
G 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
H etc.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 697
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
44. Mr. Gopal Subramanium also emphasised that the A
. 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 B
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. c
"It is not for us to resolve empirical uncertainties underlying
~tate legislation, save in exceptional Case where that·
legislation plainly impinges upon rights protected by the
Constitution itself."
D
"Although there is no conclusive proof of a connection
between anti social behaviour and obscene material, the
legislature of Georgia could quite reasonably determine E
that such a connection does or might exist. In deciding
Roth, this Court implicitly accepted that a legislature could
legitimately act on such a conclusion to protect the social
interest in order and morality." Ro.th v. United States, 354
U.S.., at 485, quoting Chaplinsky v New Hampshire, 315 F
us. 568, 572 (1942)."
"The sum of experience, including that of the past two
decades, affords an ample basis for legislatures to G
conclude that a sensitive, key relationship of human
existence, central to family life, community welfare, and the
development of human personality, can be debased and
10. 413 U.S. 49 [1973].
H
698 SUPREME COURT REPORTS [2013) 7 S.C.R.
A distorted by crass commerciar exploitation of sex. Nothing
in the Constitution prohibits a state from reaching such a
conclusion and action on it legislatively simply because .
there is no conclusive evidence or empirical data."
B
"The states have the power to make a morally neutral
judgment that public exhibition of obscene materiat or
commerce in such material has a tendency to injure
community as a whole, to endanger the public safety or to
c 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)"
.. D
45. It is further pointed out that the decision to ban obscene
dancing is also in consonance with Convention on the
Elimination of All Forms of Discrimination Against Women
CCEADAW). Learned senior counsel further submitted that
establishments covered by Section 33A have a greater direct
and indirect effect on the exploitation of women, and the
E 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
F be permitted to carry out suc!J performances, but -are left to
the operation of parallel regulation simply because they are
significantly fewer in number and their very nature facilitates
effective regulation. Therefore, according to the learned senior
counsel, the impugned enactment is not discriminatory as it
G makes a reasonable legislative classification which has a direct
nexus with the object sought to be achieved by the Act. In
supP11rh of the proposition that there is a reasonable
classification and that the State has the power to make such
classification, reliance is placed on the observations made by
H this Court in Kedar Nath Bajoria & Ant. Vs. The State of West
STATE OF MAHARASHTRA v. INDIAN HOTEL & 699
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
Bengaf1 1 which are as follows: A
"Now it is well settled that the equal protection of the laws
guaranteed by Article 14 of the Constitution does not mean
that all laws must be general in character and universal in
application and that the State is no longer to have the
8
power of distinguishing and classifying persons or things
for the purpose of legislation. To put it simply all that is
required in class or special legislation is that the legislative
classification must not be arbitrary but should be based
on an intelligible principle having a reasonable relation to C
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 D
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 E
(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 F
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 G
has failed to appreciate all the documentary evidence placed
and gave a narrow meaning to the object of the Act which is in
the larger interest of the women and society.
11. 1954 SCR 30. H
700 SUPREME COURT REPORTS [2013] 7 S.C.R.
A Article 19(1)(ql -
49. With regard to whether there is any infringement of
rights under Article 19(1 )(g), it is submitted by the learned
senior counsel that the fundamental right under Article 19(1 )(g)
B to practice any profession. trade or occupatior. is subject to
restrictions in Article 19(6). Therefore, by prohibiting dancing
under Section 33A, no right of the bar owners are being
infringed. The curbs imposed by Sections 33A and 338 only
restrict the owners of the prohibited establishments from
permitting dances to be conducted in the interest of general
C 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
D Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai & Anr., 13
wherein this Court gave a wide meaning to "interest of general
public" and observed as follows :
"The expression in the interest of general public' is of wide
E 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
F 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
G 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
12. AIR 2006 SC 212.
H 13. (1986) 3 sec 20.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 701
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
overwhelming evidence on record to show that girls have not A
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 : B
"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 C
trafficking were found to 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 SNOT Report also shows that only 17.40% of the D
bar girls are from State of Ma.harashtra. 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 E
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
F
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 : G
"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 H
702 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
8
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
C 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
D 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.
E 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
F 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
G abolition of stand was conducive to 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,
H 14. [1953] 4 SCR 290.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 703
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
having regard to its knowledge of local conditions to A
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. B
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) C
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 D
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 dance bars having
negative impact on family, women, youth and has been E
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 F
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 o~ne G
films and literature is not a fundamental right as such activities
are vicious and pernicious. Reliance was placed on the
following observations:
15. AIR 1957 SC 699.
1s. (1995) 1 sec 574. H
704 SUPREME COURT REPORTS [2013) 7 S.C.R.
- A "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
B 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
c 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."
"It does not entitle citizens to carry on trade or business in
activities which are immoral and criminal and in articles
D 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
E 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."
F
56. The aforesaid observations were reiterated in State
of Punjab & Anr. Vs. Devans Modem Breweries Ltd. & Anr. 17
Relying on the. aforesaid observations, it was submitted that in
the banned establishments, the dance is performed amidst
G 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, OBA The
H 11. (2004} 11 sec 2a .
STATE· OF MAHARASHTRA v. INDIAN HOTEL & 705
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
Main Event, Et A/. 18 . In this case, the question raised was about A
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: 8
"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 C
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 D
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 E
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 F
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 G
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
18. 452 u:s. 714 (1981).
19. 1961 3 W.L.R. 611. H
"
706 SUPREME COURT REPORTS [2013] 7 S.C.R.
A house is a house conducted contrary to law and good order in
that matters 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
8 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
C 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
D 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
E right of the bar girls are derivative and they do not have absolute
right to dance as 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
F 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
G 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
H 20. AIR 1981 SC 344.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 707
RESTAURANTSASSN. [SURINDER SINGH NIJJAR, J.]
of sale, it Will be open to them to pursue their rights and A·
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 f~.mdamental right to carry on an occupation
whi¢h is guar~teed under article 19(1 )(g) of the 8
conStifution .•
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 C
from· the right of the dance bar owners to run the establishments
subject to restrictions imposed.
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 · D
.··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, fost~ring of prostitution, . E
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 F
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 "reasonal:>le restriction"
and the parameters within which the court will examine a G
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. Row21, B.P. Sharma Vs. Union of India & Ors., 22 M.R.F.
21. AIR 1952 SC 196.
22. (2003) 7 sec 309. H
708 SUPREME COURT REPORTS - [2013] 7 S.C.R.
A Ltd. Vs. Inspector Kera/a 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
B is to strike a balance between indhtidual 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 fo be in public interest
or just on the basis that it is. permissible to do so. For
placing a complete prohibition cin any professional activity
c 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
D pla~d 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
E 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, Kera/a Government (1998) 8 SCC
227 has laid certain tests on the basis of which
F 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
G
restrictions, the court has to keep in mind the directive
principles of State policy.·
H 2a. (1998) a sec 221.
I
STATE OF MAHARASHTRA v. INDIAN HOTEL & 709
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
(2) Restrictions inust not be arbitrary or of an excessive A
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 abstractor general pattern or a fixed principle can be
6
· laid dowrl $0 ·as to be ofuniversal application and the
same wtttv:ar;Y from case to case as also with regard to
the cha~in.g conditions, values of human life, social
philosophy ofthe Constitution, prevailing conditions and
the suttpunding circumstances.
~ .· .. . . c
(4) Ajl.1$l~a:lance has to be struck between the restrictions
imposed and the social control envisaged by clause (6)
of artfole.19.
(SfPrevailing social values as also social needs which are o
intended to be satisfied by restrictions have to be borne
in mind. (see State of U.P. v Kaushailiya)
(~) 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 E
..•· 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 F
Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat (supra) in
support of the submission that Statement of Objects a.nd
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 G
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
H
710 SUPREME .COURT. REPORTS [2013) 7 S.C.R.
A reasonable in the interest of general pl;!blic, yet, in the
present case banning staughter of cow progeny is not a
prohibition but only a restriction.".
63. Relying on the aforesaid, it was submitted that while
considering the reasonableness; the court should consider the
8
purpose of restriction imposed, extent ofurgency, prevailing
conditions at the time when the restriction was imposed.
According to the appellants, in the instant ca5e, the social order
problems in and around the· dance bars had reached such
C heights which were beyond the tolerablE! point. The tests laid .
down earlier were reiterated in M.J. Stvani & Ors. Vs. State
of Kamataka & 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
D between social c<mtro1 ·on the one hand and the right. of
individual on the other hand. The court must take into
' account factors li~e nature of.the right enshrined, '
underlying purpose of the restriction imposed, evil sought
to be remedied t>y the law, its extent and urgency, how far
E 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 ~lso incidentally leading to
F prostitution which could have been prevented to a large extent
only by impo$ii1g the ban. In support of this, learned counsel
have relied Qf'I·. the Prayas Report which shows that 6% of the
women woik-ing ·in dance bars are minors and 87% are
between th~ age bf 18-30 years. Similarly, SNOT repo·rt states
G that minors constitute upto 6.80 % and those between 19 to
30 years ofagE! 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
H 24. ('1995) e sec 2a9.
STATE OF MAHARASHTRA v. INDIAN HOTEL & · 711
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
47% of women did not reveal their work to family members and A
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 B
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 c
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. 0
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 E
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 F
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 G
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
25. AIR 1951 SC 41. H
712 SUPREME COURT REPORTS [2013] 7 S.C.R.
A laws are directed to problems made manifest by
experience and that its discriminations are based on
adequate grounds"
66. The same principle was reiterated by this Court in
8 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
C 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
D 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
E 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
F 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.
G 68. Finally, it was submitted that in the event this Court is
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
H 2e. (1997) 2 sec 453.
STATE; OF MAHARASHTRA v. INDIAN HOTEL & 713
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
is based on the principle that it is only when all efforts to do so A
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 :
B
"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 C
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 upnold the D
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 Kera/a (1979)
1 sec 23 para 6.
E
69. The same principle was reiterated in Kedar Nath
Singh Vs. State of Bihar28 which is as follows :
· "It is well settled that if certain provisions of law, construed
in one way, would make them consistent with the
F
Constitution and another interpretation 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: G
"All dance" found in Section 33A of the Police Act
may be read down to mean that "dances which are
21. (2008) 4 sec 120.
28. AIR 1962 SC 955. H
714 SUPREME COURT REPORTS (2013] 7 S.C.R.
A 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
B 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 338 and the provision which is contained in
c 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:
D
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
E Restaurants Ass9ciation 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
F 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
G 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
H challenge to the impugned legislation can be sustained on
STATE OF MAHARASHTRA v. INDIAN HOTEL & 715
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
other grounds also. He submits that a classification of the A
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, B
19(1)(a) and 19(1)(g) and 21 of the Constitution. Relying on the
observations made by this Court in the case of l.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. c
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.
0
Relying on Sections 370 ar'ld 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 upon
the observations made by this Court in Sakal Papers (P) Ltd. E
& 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 F
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 G
establishments and the bar girls from dancing in those
premises. He then submits that the amendment violates Article
29. c2001) 2 sec 1.
30. (1962) 3 SCR 842. H
716 SUPREME COURT REPORTS [2013) 7 S.C.R.
· A 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
B 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 the interest of morality or decency.
Mr. Rohatgi then submitted that the reasons set out in the
c 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
0
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 Cl single
complaint about trafficking. All allegations relating to trafficking
E 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
F similar nature in establishments, mentioned in Section 338 is
permissible, the prohibition of similar dance performance in
establishments covered under Section 33 cannot be termed as
reasonable and or "in the interest of general public". Therefore,
according to Mr. Rohatgi, the restrictions do not fall within the
G 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
H 31. c2ooa} 3 sec 1.
$TATE OF MAHARASHTRA v. INDIAN HOTEL & 717
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
violative of Articles 14, 15, 19 and 21. In this case, it was held A
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 8
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 C
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 D
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 E
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 same, excepting that F
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 G
made in the earlier part of the judgment. Therefore, it is not
necessary to reiterate the same. However, coming back to
Section 338, Mr. Rohatgi submitted that dancing that is
banned in the establishments covered under Section 33A is
permitted under the exempted establishments under Section H
718 SUPREME COURT REPORTS [2013] 7. S.C.R.
A 338. According to learned senior counsel, the differentia in
Section 33A and 338 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
B prohibited from dancing in an establishment covered under
Section 33A, dances in an establishment covered under
Section 338. The discrimination, according to Mr. Rohatgi, is
accentuated by the fact that for a breach committed by the
licensees in the category of Section 338 only their licenses will
c be cancelled but the licensees of establishments covered 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
0 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.
E 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
F of establishments under Sections 33A and 338 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
G be achieved by the legislation. He 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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 719
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
patrons. Such a differentiation, according to Mr. Rohatgi, is not A
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) 8
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 C
a/ia, 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 on th·e
observations made by this Court in Government of A.P. Vs. D
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 E
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 F
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
creatinQ job .~pportunities for women ...... "
(Emphasis supplied) G
75. He submits that the impugned legislation has achieved
the opposite result. Instead of creating fresh job opportunities
32. (1995) 4 sec 520. H
720 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B steps and movements of Hindi movie actresses. They wear
traditional clothes such as ghagra cholis, sarees and salwar
kameez. On the other hand, the actresses in movies wear
revealing clothes: shorts, swimming costumes and revealing
dresses. Reverting to the reliance placed by the appellants on
c 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 SNOT Report actually
indicates that there is no organized racket that brings women
to the dance bars. The girls' interview, in fact, indicated that they
0
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
E 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 SNOT Report
is contradictory to the Prayas Report. Thus, the State had no
reliable data on the basis of which the impugned legislation was
F 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 Rules 120 and 123 framed under the Amusement
G 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
H dancing. Similar provisions are contained under the
STATE OF MAHARASHTRA v. INDIAN HOTEL & 721
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
Performance license. Although learned senior counsel has A
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 B
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 c
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
prepared its report and submitted the same to the State
0
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.
E
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 F
independent of the Act and the Rules. He submits that the
provisions are absolutely arbitra-ry 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 338 introduced the discriminatory G
provision which allows such an activity in establishments where
entry is restri~ed 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 minimum 3 months and H
722 SUPREME COURT REPORTS (2013] 7 S.C.R.
A 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
8 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
c 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 338
D introduces blatant discrimination. He submits that the
classification of two kinds of establishment is unreasonable.
According to Dr. Dhawan, it is clear that Section 338 makes
distinction on the grounds of "class of establishments" or "class
E of persons who frequent the establishment" and not on the form
of dance. He 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 lice.nee differently,
even though they constitute two distinct classes would be
F 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
G 19(6) is permissible lies upon the State and not on the citizen,
he relies on the judgment of this Court in Mis. Laxmi Khandsari
& Ors. Vs. State of U.P. & Ors. 33
77. Relying on the Narendra Kumar & Ors. Vs. Union of
H 33. (1981) 2 sec 600.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 723
.
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
India & Ori.; 34 he submitted that the total prohibition in Section A
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 impugned legislation. He points out that the B
- 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- c
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
0
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 indi9ates
that after the ban there was urgent need to find alternate source
of livelihood for these girls. There was no facility of education E
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. The SNOT Report clearly states F
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 :-
G
1. ·. It is an issue of trafficking from other States and
countries.
2. 75% dancers are from Bangladesh.
34. (1960) 2 SCR 375. H
724 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 3. Only 3% are dancers from Maharashtra.
4. Bar culture is against the tradition of Maharashtra.
5. Girls who dance are minors.
B 6. Bar Dancers hide their faces.
7. Girls don't work hard.
8. Bar Girls can be rehabilitated in Call Centers.
C 9. Dancing in Bars is sexual exploitation.
10. Girls are forced into sex work.
11 . Dance bars are vulgar and obscene. .
D 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
E and prevention of entry of children into these 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
F 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 SNOT is based on empirical interviews.
It recommends that the ban imposed should be lifted
immediately. Dr. Dhawan has further elaborated the
G shortcomings of the Prayas Report. He has also emphasised
that both the SNOT 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
H places. After the ban, these families are left without a source
STATE OF MAHARASHTRA v. INDIAN HOTEL & 725
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
of income and have since then been rendered destitute. He also A
points out that the SNOT 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 dancers in view of the fact
that it afforded them financial independence and security. The B
SNOT 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 C
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 D
observations made by this Court in Rustom Cavasjee Cooper
Vs. Union of lndia 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 E
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 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 F
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.
G
80. Illustrations submitted by Dr. Dhawan are that the
legislation cannot be saved even by adopting the doctrine of
35. (1970) 1 sec 248.
36. (1978) 1 sec 248.
37. c2001} 1 sec 630. H
726 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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 19th
December, 2002 ought to be accepted. According to Dr.
Dhawan, acceptance of such suggestions would lead to
B 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
c does not agree with Mr. Gopal Subramanium that this should
be 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
D 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
E 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
F 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
G of figures by police with regard to complaints and cases
registered 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
H between dance bars and trafficking in women. Learned senior
STATE OF MAHARASHTRA v. INDIAN HOTEL & 727
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
counsel has reiterated the submission that Section 33A and A
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 lndia 36 • Learned senior counsel
also reiterated that the classification between the establishment
under Section 33A and Section 33B is unreasonable. B
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 C
provisions contained in the aforesaid sections. He reiterated
the submissions that the distinction between the establishments
is based not on the type 9f dance performance but on the basis
of class of such establishments. He makes a reference to the
affidavit in reply filed in Writ Petition No.2450 of 2005 at D
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 E
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."
F
83. These observations, according to learned counsel, are
contrary to the decision of this Court in Sanjeev Coke
Manufacturing Company Vs. Mis Bharat Coking Coal Limited
& Anr. 39 Mr. Grover has also reiterated the sutimission that
classification between Sections 33A and 338 establishments
has no rational nexus with the object sought to be achieved by G
the impugned legislation. He submits that whereas Section 33A
prohibits any kind or type of dance performance in eating
38. (1983) 1 sec 305.
39. (1983) 1 sec 147. H
728 SUPREME COURT REPORTS [2013] 7 S.C.R.
A house, permit room or beer bar, i.e., dance bars, Section 338
allows all types and kinds of dances in establishments covered
under Section 338. 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,
B obscene and vulgar type, derogatory to the 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 338. He has also given the example that most of the
c 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
D 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
E 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
F 'protecf women by constraining their liberty, 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)
G 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 tnat dancing is not inherently dangerous or
H pernicious and cannot be treated akin to trades that are res
STATE OF MAHARASHTRA v. INDIAN HOTEL & 729
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
extra commercium. Bar dancers, therefore, have a 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 B
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 the c
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 0
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
E
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, F
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 been conflated in a pejorative G
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. H
730 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B 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
C 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 rejected on the
ground that the amendment is substantially covered by Entries
D 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 Ill of the
Constitution of India. The High Court also rejected the
submissions that the proviso to Section 33A (2) amounts to
E 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
F 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
G 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 interest"
includes eating houses which serve alcohol for public
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 731
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
consumption. It was further observed that the amendment A
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 338 B
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. c
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 free,dom of speech and expression
guaranteed under Article 19(1)(a). The submission was rejected D.
by applying the doctrine of pith and substance. It has been held
by the High Court that dance performed by the bar dancers can
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 E
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:- F
"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 G
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
40. (1989) 4 sec 155. H
732 SUPREME COURT REPORTS [2013) 7 S.C.R.
A :respondents challenging the aforesaid findings, it would riot be
appropriate for us to opine on the correctness or other.Vise 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
8
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 dancing in a bar
is not an expression of dancers but their profession, and,
C therefore, it can not get the protection of Article 19{1){a).
Similarly, he had submitted that the High Court in the impugned
1 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
·D '."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
E 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
clearthat we have not expressed any opinion on the
F correctness or otherwise of the conclusions of the High co'urt
with regard to Sections 33A and 338 not being ultra vires
Articles 15(1), 19(1){a) an·d jl.rticle 21. We have been
constrained to adopt this approach: ·
- I • > I
·
{1) . Because there was no. challenge to the conclusions
G
of the High Court in appeal by respondents. -
(2) . The learned senior counsel of the appellants had
no occasion to make submissions in support of the
conclusions recorded by the High Court.
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 733
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J]
(3) We are not inclined to exercise our jurisdiction A
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 B
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 C
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 o
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 which the various tests E
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 :-
F
"It is now well established that while article 14 forbids class
legislation, it does not forbid re.asonable classification for
the purposes of legislation. In order, however, to pass the
test of permissible classification two conditions must be
fulfilled, namely, (1) that the classification must be founded G
on an intelligible differentia which distinguishes persons or
things that are grouped together from others left out of the
group, and (i1) that that differentia must have a rational
relation to the object sought to be achieved by the statute
41. AIR 1955 SC 191. H
734 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B 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
C 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
D to a single individual if on account of some special
circumstances or reasons applicable to him 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
E
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
F 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;
G (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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 735
RESTAURANTS ASSN. (SURINDER SINGH NIJJAR, J.]
matters of common knowledge, matters of common report, A
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
B
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 C
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 D
Shashikant Laxman Kale (supra). The relevant observations
have already been noticed in the earlier part of the judgment.
95. The High Court has held that the classification under
Sections 33A and 338 was rational because the type of dance E
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 F
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 G
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
H
736 SUPREME COURT REPORTS [2013) 7 S.C.R.
A . 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 professional dancers. They are mostly trafficked
B 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
c 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
0
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
E 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 Dalmia's case supra). In the present case,
judging the distinction between the two sections upon the
F 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
G 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,
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 737
RESTAURANTS ASSN, [SURINDER SINGH NIJJAR, J.]
the Court may impose a iesser punishment of 3 months and A
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 338 enjoy complete
exemption from any such restrictions. The dance performances 8
are permitted provided the establishments comply with the
applicable statutory provisions, Bye-Laws, Rules and
Regulations. Th~_ classification of the establishments covered
under S~ctions 33A and 338 would not satisfy the test of
equality laid down in the case of State of Jammu and Kashmir c
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 D
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.
&o~aheldfu~ E
"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."
F
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 G
- was submitted that it is not only just the type of dance performed
but the surrounding circumstances which have been taken into
42. (1974) 1 sec 19.
43. (2005) 1 sec 394. H
738 SUPREME COURT REPORTS (2013] 7 S.C.R.
- A consideration in making the distinction. The distinction is sought
to be 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
s 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
c 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
0
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
E that a dance permitted in exempted institutions under Section
· 338, if 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
F 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,
G as rightly observed in the Constitutional Bench Judgment of this
Court in l.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
H of the arbitrary classification of the establishments under
STATE OF MAHARASHTRA v. INDIAN HOTEL & 739
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
Sections 33A and 338, it was duty of the State to justify the A
reasonableness of the classification. This conclusion of ours is
fortified by the observations in Mis. 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 clear B
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 C
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." D
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 E
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
F
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 G
sought to be supported by a number of 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
H
740 SUPREME COURT REPORTS (2013] 7 S.C.R.
A 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
8 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
C 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 338. Such an
establishment would merely lose the licence. Such blatant
D discrimination cannot possibly be justified on the criteria of
reasonable 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
E 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
F 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
G
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
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 741
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
not so dangerous to public health or morals as a prostitute A
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 B
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 c
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
0
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 ~y removing
E
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
pbject sought to be achieved by the Act."
102. We fail to see how any of the above observations are F
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 G
necessary concomitant a particular kind of morality or decency.
We are unable to accept the presumption which runs through
Sections 33A and 338 that the enjoyment of same kind of
entertainment by the upper classes leads only to mere
enioyment and in the case of poor classes; it would lead to H
742 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
s other hand, it would be presumed that in the exenipted
establishments any dance is non-obscene. The underlying
presumption at once puts 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
c 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
D the exempted establishments would not bring about sexual
arousal in male audience as opposed to the male audie.nce
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
E 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)
F and State of Uttar Pradesh Vs. Kaushailiya & Ors. (supra)}. In
our opinion, sections 33A and 338 introduce an invidious
discrimination which cannot be justified under Article 14 of the
Constitution.
G 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 SNOT University has
substantially contradicted the conclusions reached by the other
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 743
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
two reports. The situation herein was not similar to the A
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 8
and employee of their liberty to contract, and (2). the equal
protection clause by an unreasonable and a~bitr~ry
classification. The Court upheld the iegislation on the first
ground that the State had come to the conclusion that night work
prohibited, so injuriously "threatens to impair women's peculiar C
and natural functions. Such work, according to the State,
exposes women to the dangers and menaces incidental to night
life in l_arge 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 D
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 E
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 intelligibie
differentia is on the ground that women who perform in the F
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 G
on a hypothesis that different dance-bars are being used as
meeting points of criminals and pick up points of the girls. But
the Objects and Reasons say nothing about any evidence
having been presented to the Government that these dance
bars are actively involved in trafficking of women. In fact, this
H
744 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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.
8 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.
C 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
D recognize the degrees of harm and may confine its restrictions
to those cases 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
E 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
F 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
G 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
H and that its discriminations are based on adequate grounds.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 745
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
In the present case, the appellant has failed to give any details A
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 8
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 C
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 D
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 E
dance item in the 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 F
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 G
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
H
746 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B social strata of the audience. History is replete with examples
of crimes of lust committed in the highest echelons of the
society as well as in the lowest levels ofsociety. The High Court
has rightly observed, relying on the ob&ervations of this Court
in Gaurav Jain Vs. Union of India, 44 that "prostitution in 5 star
c 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
0
to a notion that high morals and decent behaviour is t.he
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
E 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
F appellants that by prohibiting dancing under Section 33A, no
right of the bar owners for carrying on a business/profession
is being infringed [See: Fertilizer Corporation Kamgar Union
(Regd.), Sindri & Ors. (supra)]. The curbs are imposed by
Section 33A and 338 only to restrict the owners in the
G 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
H 44. (1997) a sec 114.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 747
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
right under Article 19(1 )(g). The submission is also sought to A
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 B
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 c
morality has been the subject of jurisprudential discourse for
centuries. The questions such as: Is the 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
0
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 ~enior counsel. Therefore, we
shall not dwell on the same.
110. Upon analyzing the entire fact situation, the High Court E
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 F
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 G
Court has also concluded that the legislation has failed to satisfy
the doctrine of direct and inevitable effect [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 H
748 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 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.
8 111. 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 C. Bombay Prohibition Act, 1949.
D. Rules for Licensing and Controlling Places of Public
Entertainment, 1953.
o 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.
E 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.
F ii. License under the Bombay Shops and
Establishment Act, 1948 and the Rules thereunder.
iii. Eating House license under Sections 394, 412A,
313 of the Bombay Municipal Corporation Act,
G 1888.
iv. Health License under the Maharashtra Prevention
of Food Adulteration Rules, 1962.
v. Health License under the Mumbai Municipal
H Corporation Act, 1888 for serving liquor;
STATE OF MAHARASHTRA v. INDIAN HOTEL & 749
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
vi. Performance License under Rules 118 of the A
Amusement Rules, 1960;
vii. Premises license under Rules 109 of the
amusement Rules;
viii. License to keep a place of Public Entertainment 8
under Section 33(1 ), clause (w) and (y) of the
Bombay Police Act, 1951 and the said
Entertainment Rules;
ix. FL Ill License under the Bombay Prohibition Act, c
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. D
113. Before any of the licenses are granted, the applicant
has to fulfil the following conditions :
(i) Any application for premises license shall E
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 F
educational institution shall be more than 75
metres.·
(iii) The proposed place of amusement shall not have
been located in the congested and thickly G
populated area.
(iv) The proposed site must be located on a road
having width of more than 10 metres.
H
750 SUPREME COURT REPORTS [2013] 7 S.C.R.
A (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.
B
(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.
c
(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
0 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 arid more
particularly Section 33(1)(w) of the said Act empowers the
E 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 anc:V
F morality."
115. Rules 122 and 123 of the Amusement Rules, 1960
also prescribe conditions for holding performances.
"Rule 122 - Acts prohibited bv the holder of a
G 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
H part of the auditorium :-
STATE OF MAHARASHTRA v. INDIAN HOTEL & 751
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
(a) any profanity or impropriety of language ; A
(b) any indecency of dress, dance, movement or gesture;
Similar conditions and restrictions are also prescribed
under the Performance Licence :
8
"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
c
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; D
(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." E
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 F
by the State to show that it was not possible to deal with the
situation within the framework of the existing laws except for
the unfounded conclusions recorded in the Preamble as well
the Objects and Reasons. [See: State of Gujarat Vs. Mirzapur
Moti Kureshi Kassab Jamat (supra)], wherein it is held that the G
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 H
752 SUPREME COURT REPORTS (2013] 7 S.C.R.
A 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
B 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 wi!!l- the
Licensing Authority to safeguard any perceived violation of the
c dignity of women through obscene dances.
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
D 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 338; the
reasons advanced for the aforesaid only highlight the stereotype
E 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
F 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
G dresses. The dance becomes even more provocative and
sensual when such behaviour is mixed with alcohol. It has the
tendency to lead to undesirable results. Reliance was placed
upon State of Bombay Vs. R.M.D. Chamarbaugwa/a & Anr.
(supra), Khoday Distilleries Ltd. & Ors. Vs. State of Kamataka
H & Ors. (supra), State of Punjab & Anr. Vs. Devans Modem
STATE OF MAHARASHTRA v. INDIAN HOTEL & 753
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
Breweries Ltd. & Anr. (supra), New York State Liquor Authority A -
Vs. Dennis BELLANCA, OBA 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 legislatior..
B
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
)n slaves or to carry on business of exhibiting and publishing C
pornographic or obscene films and literature. This case is
alstinguishable because the unfounded presumption that
women are being/were trafficked in the bars. The case of State
of Punjab & Anr. Vs. Devans Modem Breweries Ltd. & Anr.
(supra) dealt with liquor trade, whereas the present case is D
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 E
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. ·
F
119. We do not agree with t111e submission of Mr.
Subram8;nium 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 G
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 possible to regulate these permit rooms and
H
754 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 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.
8
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
C 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
D 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, this
E 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
F 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
G be permitted so long as any kind of dance is permitted in
establishments covered under Section 338.
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
H severability. Even if Section 338 is declared unconstitutional,
STATE OF MAHARASHTRA v. INDIAN HOTEL & 755
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
it would still retain the provision contained in Section 33A which A
prohibits any kind of dance by any person in the establishments
covered under Section 33A.
123. In our opinion, it would be more appropriate that the
State Government re-examines the recommendations made by
8
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.1.},
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 16th July, C
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 : D .
(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. E
(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 F
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. G
(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
H
756 SUPREME COURT REPORTS [2013) 7 S.C.R.
A 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
8
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
C maintained in the dance bar to take eritries 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
D 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.
E 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 about
measures which should ensure the safety and improve the
F 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
G 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
H to ~nsure safety of women than to completely prohibit dance.
STATE OF MAHARASHTRA v. INDIAN HOTEL & 757
RESTAURANTS ASSN.
In fact, a large number of imaginative alternative steps could A
b1~ 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 B
High Court. Therefore, we find no merit in these appeals and
the same are accordingly dismissed.
126. All interim orders are hereby vacated.
ALTAMAS KABIR, CJI. 1. Having had an opportunity of C
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 D
in all these matters requiring the balancing of 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.
E
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 F
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. G
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 H
758 SUPREME COURT REPORTS [2013] 7 S.C.R.
A 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
B 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 residence to her place of work,
c 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
0
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
E 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 make their own
choices, which is not an entirely uncommon or unreasonable
F 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
G 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.
H
STATE OF MAHARASHTRA v. INDIAN HOTEL & 759
RESTAURANTSASSN. [ALTAMAS KABIR, CJI.]
6. I fully endorse the suggestions made in paragraph 123 A
of the judgment prepared by my learned Brother that, instead ·
of generating unemployment, it may be wiser for the State to
look into ways and means in which reasonable restrictions may
be imposed on bar dancing, but without completely prohibiting
or stopping the same. B
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 C
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 derogation of
the judgment delivered by my learned Brother. D
R.P. Appeal dismissed.
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