INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR) & ANR. versus THE STATE OF MAHARASHTRA & ORS.

INDIAN HOTEL AND RESTAURANTASSOCIATION (AHAR) & ANR.

THE STATE OF MAHARASHTRA & ORS.

(Writ Petition (Civil) No. 576 of 2016)

JANUARY 17, 2019

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Act, 2016 – s.2(8)(i) – Constitutional validity of,challenged on the ground that the expression ‘arouse the prurientinterest of the audience’ is vague, incapable of giving precise meaningthereto – Held: Such plea not accepted for the reason that inexplaining as to what kind of books, pamphlets, papers, writings,drawings, paintings, representations, figures or any other objectwill be deemed as obscene, s.292 of the IPC itself uses this veryexpression when it lays down that such books etc. shall be deemedto be obscene if they are ‘lascivious or appeals to the prurientinterest...’ – In way, therefore, s.2(8) incorporates the definitionof obscenity as laid down in the IPC which also makes obscenebooks etc. (s.292 IPC) as well as obscene acts and songs (s.294IPC) as punishable offences – Prurient interest in the context ofdance performance would be performance which has or whichencourages an excessive interest in sexual matters – It cannot besaid that dance which is aimed at arousing the prurient interest ofthe audience is vague term, incapable of definite connotation – Itis, more so, when s.292 IPC particularly uses this expression in thedeeming provision relating to obscenity – – Maharashtra Prohibitionof Obscene Dance in Hotels, Restaurant and Bar Rooms andProtection of Dignity of Women (Working therein) Rules, 2016 –Penal Code, 1860 – s.294 – Constitution of India – Arts.14, 15,19(1)(a) and 21.

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Act, 2016 – s.6(4) – Forbidding grant of licence

CDEF

Afor discotheque or orchestra where licence under this Act is granted– Whether s.6(4) is violative of equality clause enshrined in Art.19(1)of the Constitution – Held: s.6(4) forbids grant of licence fordiscotheque or orchestra where licence under this Act is granted –Conversely it also forbids grant of licence under this Act for theplace for which licence for discotheque or orchestra has beenBgranted – It means that in respect of particular place, licencewould be granted either for dance bars or for discotheque/orchestraand not for both purposes – The impugned provision is totallyarbitrary and irrational and has no nexus with the so-called purposesought to be achieved – s.6(4) of the Act is struck as unconstitutionalC– Constitution of India – Art.19(1).

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Act, 2016 – s.8(2) – Whether punishment providedunder s.8(2) of the Act is discriminatory and offends Art.14 of theDConstitution – Held: Sub-section (2) has to be read along with sub-section (1) of s.8 – Under s.8(1), if the place is used in contraventionof s.3, it is made punishable offence – It means that where hotel,restaurant, bar room or any place is used for staging dances withoutobtaining licence under s.3 of the Act, that is made punishableoffence – However, even if licence is obtained, that would not meanEthat place can be used for obscene dance performances or forexploiting working women for any immoral purpose – It is theseacts which are made punishable under sub-section (2) – In thismanner, the offence under s.8(2) is somewhat different from theoffence that is stipulated in s.294 IPC – Challenge to the validity ofFs.8(2) of the Act, therefore, failed – Constitution of India – Art.14.Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Act, 2016 – s.8(4) – Whether s.8(4) of the Act isarbitrary and violative of Art.14 – This provision is to be read withGcondition Nos. 6, 7 and 8 of Part – It banned throwing orshowering coins, currency notes or any article or anything whichcan be monetized on the stage or handing over personally suchnotes, to dancer and treated it as an offence – Further stipulationin these provisions is that any tip to be given should be added in thebill only and is not to be given to the performers etc. – The

INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)v. STATE OF MAHARASHTRA

justification given by the State was that showering of money etc. isa method of inducement which has to be curbed keeping in viewthat Act aims to protect the dignity of women – Held: Insofar asthrowing or showering coins, currency notes etc. is concerned, theprovision is well justified as it aims at checking any untowardincident since the said Act has tendency to create situation ofindecency – Therefore, whatever money, any appreciation of anydance performance, has to be given, can be done without throwingor showering such coins etc. – However, there may not be anyjustification in giving such tips only by adding thereto in the bills tobe raised by the administration of the place – On the contrary, ifthat is done, the person who is rightful recipient of such tips may bedenied the same – Further, State cannot impose particular mannerof tipping as it is entirely matter between an employer andperformer on the one hand, and the performer and the visitor onthe other hand – Therefore, the provision is upheld insofar as itprohibits throwing or showering of coins, currency notes or anyarticle or anything which can be monetised on the stage – However,handing over of the notes to the dancers personally is notinappropriate – The provision of giving the tips only by adding thesame in the bills is also set aside – Constitution of India – Art.14.

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – r.3(3)(i) – Legality of, challengedon the ground that it is vague – As per this sub-rule, person isentitled to obtain or hold licence who possesses ‘good character’and ‘antecedents’ and he should not have any history of ‘criminalrecord’ in the past ten years – Held: The terms ‘good character’ or‘antecedents’ or ‘criminal record’ are not definite or precise – Theseexpressions are capable of any interpretation and, therefore, is leftto the wisdom of the licensing authority to adjudge whether aparticular person possesses good character or good antecedentsor not – Likewise, insofar as history of criminal record is concerned,it is not spelled out as to whether such criminal record is based onconviction in case or mere lodging of FIR would be termed ascriminal record – Therefore, the provision is quashed in the presentform, but, at the same time, liberty is given to the rule makingauthority to have suitable provision of precise nature –

AConsequently, condition No. 16 of Part in the present form is alsoset aside.

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No. 2 of Part of generalBconditions (GOC) – Stage in bar room has to be with non-transparentpartition between hotel, restaurant and bar room area – In essence,it segregates bar room area from hotel and restaurant i.e. itprescribes fixed partition between permit room and dance room –Justification of – Held: There is no rationality in imposing such acondition having regard to any objective sought to be achieved –CTherefore, this provision is struck down.Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No.11 of Part –Stipulation that the place where dance is to be performed should beDat least 1 km away from the educational and religious institutions –Held: Such condition does not take into account the groundrealities particularly in the city of Mumbai where it is difficult tofind any place which is 1 km away from either an education institutionor religious institution – This, therefore, amounts to fulfilling anEimpossible condition and the effect thereof is that, at no place, inMumbai, licence would be granted – Therefore, this condition isalso arbitrary and unreasonable and is quashed, with liberty to therespondents to prescribe the distance from educational and religiousinstitutions, which is reasonable and workable.

FMaharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No.2 of Part –Imposition of an obligation on the employers to the effect thatworking women, the dancers and waiters/waitresses must beemployed under written contract on monthly salary and theirGmonthly salary should be deposited in their bank accounts with allthe benefits required under the law and copy of such contractsshould be deposited with the licensing authority as well – Held:The provision relating to entering into written contract as well asdepositing of the remuneration in the bank accounts is justified asHit make the conditions on which such working women, dancers and

INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)v. STATE OF MAHARASHTRA

waiters/waitresses are employed, transparent thereby eliminating orminimising any chances of exploitation or other disputes – However,the condition of employing such persons on monthly salary impingesupon the rights of such workers as well who may, otherwise, be freeto give their performances at more than one place – This imposescondition of employment in particular manner i.e. on monthlybasis – There can be other modes of employment permissible in lawand the employers have legal right to adopt such modes – Therefore,it imposes restriction even upon such employees and infringes theirright under Art.19(1)(g) – The State Government failed to showany compelling public interest to curtail the choices of womenperformers – This part of Condition No. 2 is set aside – However,the provisions for written contract, deposit of the remuneration inthe bank accounts of the employee as well as submission of thesewritten contracts with the licensing authority are appropriate –Constitution of India – Art.19(1)(g).

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No. 9 of Part –Prescribing timing of dance performances only between 6 pm to11:30 pm – Held: It is not manifestly unreasonable – Merely becauseestablishments are otherwise open until 1:30 am (next day) or 12:30am (next day) does not mean that the State has no power to restrictthe time of dance performances till 11:30 pm. – Even period of 6pm to 11:30 pm for dance performances is quite sufficient andsubstantial as it allows 5½ hours of such performances – Thiscondition is upheld.

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No. 12 of Part –Prescribing that no alcohol should be served in the bar room wheredances are staged – Held: This is totally disproportionate,unreasonable and arbitrary – There is no reason as to why theliquor cannot be served at such places – State seemingly is moreinfluenced by moralistic overtones under wrong presumption thatpersons after consuming alcohol would misbehave with the dancers– If this is so, such presumption would be equally applicable tobar rooms where the alcohol is served by women waitresses –

AHowever, such conditions have been held to be unreasonable bythe Courts – There may be aberrations or sporadic incidents ofthis nature which can happen not only at the places where danceperformances are staged but at other places including bar roomsand even main restaurants – Other measures have to be adopted tocheck such nuance – There cannot be complete prohibitionBfrom serving alcoholic beverages – Therefore, condition No. 12 isquashed.

Maharashtra Prohibition of Obscene Dance in Hotels,Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 – Condition No. 20 of Part –CInstalling of CCTV Cameras – This would be totally inappropriateand amounts to invasion of privacy and is, thus, violative of Arts.14,19(1)(a) and 21 of the Constitution – Constitution of India – Arts.14,19(1)(a) and 21.

Morality – Extent to which the State can go in imposingDmorality on its citizens – Held: It cannot be denied that danceperformances, in dignified forms, are socially acceptable andnobody takes exceptions to the same – On the other hand, obscenityis treated as immoral – Therefore, obscene dance performance maynot be acceptable and the State can pass law prohibiting obsceneEdances – However, practice which may not be immoral by societalstandards cannot be thrusted upon the society as immoral by theState with its own notion of morality and thereby exercise ‘socialcontrol’.

Partly allowing the Writ petitions, the CourtFHELD: 1. Argument of morality – To what extent the Statecan go in imposing ‘morality’ on its citizens?

There may be certain activities which the society perceivesas immoral per se. It may include gambling, prostitution etc. Thestandards of morality in society change with the passage of time.GA particular activity, which was treated as immoral few decadesago may not be so now. Societal norms keep changing. Socialchange is of two types: continuous or evolutionary anddiscontinuous or revolutionary. The most common form of changeis continuous. This day-to-day incremental change is subtle,but dynamic, factor in social analysis. It cannot be denied thatH

INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)v. STATE OF MAHARASHTRA

dance performances, in dignified forms, are socially acceptableand nobody takes exceptions to the same. On the other hand,obscenity is treated as immoral. Therefore, obscene danceperformance may not be acceptable and the State can pass lawprohibiting obscene dances. However, practice which may notbe immoral by societal standards cannot be thrusted upon thesociety as immoral by the State with its own notion of moralityand thereby exercise ‘social control’. Furthermore, and in anycase, any legislation of this nature has to pass the muster ofconstitutional provisions as well. [Para 77][449-A-D]

State of Punjab & Anr. v. Devans Modern BreweriesLtd. & Anr. (2004) 11 SCC 26 : [2003] 5 Suppl. SCR 930; Gobind v. State of Madhya Pradesh & Anr.(1975) 2 SCC 148 : [1975] 3 SCR 946 – referred to.

2. Principle of res extra commercium. Insofar as danceperformances are concerned, it has already been held that it isnot res extra commercium. The decision in Indian Hotel andRestaurants Association (1) dealt with the aspects of HumanTrafficking, injury to public morals and res extra commercium.[Para 78][449-E; 450-C, E]

State of Maharashtra & Anr. v. Indian Hotel andRestaurants Association & Ors. (2013) 8 SCC 519 :[2013] 7 SCR 654 – relied on.

3. Re: Section 2(8)(i) of the Act – Section 2(8) definesobscene dance. In the main body, it states that any dance whichcomes within the meaning of Section 294 of IPC and any otherlaw for time being in force, shall be treated as ‘obscene dance’.The argument is that the definition of obscene dance is expandedbeyond Section 294 of the IPC. The submission is that in Section2(8)(i), the expression ‘arouse the prurient interest of theaudience’ is vague, incapable of giving precise meaning thereto.This submission is not accepted for the reason that in explainingas to what kind of books, pamphlets, papers, writings, drawings,paintings, representations, figures or any other object will bedeemed as obscene, Section 292 of the IPC itself uses this veryexpression when it lays down that such books etc. shall be deemedto be obscene if they are ‘lascivious or appeals to the prurient

[2019] 1 S.C.R.

Ainterest...’. In way, therefore, Section 2(8) incorporates thedefinition of obscenity as laid down in the IPC which also makesobscene books etc. (Section 292 IPC) as well as obscene actsand songs (Section 294 IPC) as punishable offences. Prurientinterest in the context of dance performance would be aperformance which has or which encourages an excessive interestBin sexual matters. It cannot be said that dance which is aimedat arousing the prurient interest of the audience is vague term,incapable of definite connotation. It is, more so, when Section292 IPC particularly uses this expression in the deeming provisionrelating to obscenity. [Paras 79-81, 84, 89][450-G-H; 451-A, C-CE; 452-C; 455-H; 456-A]

Raj Kapoor & Ors. v. State & Ors. (1980) 1 SCC 43 :[1980] 1 SCR 1081 – relied on.

Amitabh Bachhan Corporation Ltd. v. Om Pal SinghHoon 1996 SCC Online Del 268 : (1996) 37 DRJ 352D(DB) 87 – referred to.

Brockett v. Spokane Arcades Inc. 1985 SCC OnlineUS SC 165 : 472 US 491 (1985) : 105 S.Ct. 2794;Patrick v. Minister of Safety and Security 1996 SCCOnline ZACC 8 : [1996] ZACC7 – referred to.E

4. Re: Whether Section 6(4) of the Act is violative ofequality clause enshrined in Article 19(1) of the Constitution?

This provision forbids grant of licence for discotheque ororchestra where licence under this Act is granted. Conversely itFalso forbids grant of licence under this Act for the place for whicha licence for discotheque or orchestra has been granted. It meansthat in respect of particular place, licence would be grantedeither for dance bars or for discotheque/orchestra and not forboth purposes. The impugned provision is totally arbitrary andGirrational and has no nexus with the so-called purpose sought tobe achieved. Therefore, Section 6(4) of the Act is struck asunconstitutional. [Para 90][456-B, D-E]

5. Re: Whether punishment provided under Section 8(2)of the Act is discriminatory and offends Article 14 of theHConstitution?

Sub-section (2) has to be read along with sub-section (1) ofSection 8. Under Section 8(1), if the place is used in contraventionof Section 3, it is made punishable offence. It means that wherea hotel, restaurant, bar room or any place is used for stagingdances without obtaining licence under Section 3 of the Act,that is made punishable offence. However, even if licence isobtained, that would not mean that place can be used for obscenedance performances or for exploiting working women for anyimmoral purpose. It is these acts which are made punishableunder sub-section (2). In this manner, the offence under Section8(2) is somewhat different from the offence that is stipulated inSection 294 IPC which is clear from the language of Section 294.Challenge to the validity of Section 8(2) of the Act, therefore,fails. [Paras 91, 92][456-G-H; 457-A, D]

6. Re: Whether Section 8(4) of the Act is arbitrary andviolative of Article 14?

This provision is to be read with condition Nos. 6, 7 and 8of Part B. It makes throwing or showering coins, currency notesor any article or anything which can be monetized on the stage orhanding over personally such notes, to dancer is banned andtreated as an offence. Further stipulation in these provisions isthat any tip to be given should be added in the bill only and is notto be given to the performers etc. Insofar as throwing orshowering coins, currency notes etc. is concerned, the provisionis well justified as it aims at checking any untoward incident asthe said Act has tendency to create situation of indecency.Therefore, whatever money, any appreciation of any danceperformance, has to be given, can be done without throwing orshowering such coins etc. However, there may not be anyjustification in giving such tips only by adding thereto in the billsto be raised by the administration of the place. On the contrary, ifthat is done, the person who is rightful recipient of such tips maybe denied the same. Further, State cannot impose particularmanner of tipping as it is entirely matter between an employerand performer on the one hand and the performer and the visitoron the other hand. [Para 93][457-D-H; 458-A]

7. Legality of Rule 3(3)(i) challenged on the ground that itis quite vague.

AAs per this sub-rule, person is entitled to obtain or holdlicence who possesses ‘good character’ and ‘antecedents’ andhe should not have any history of ‘criminal record’ in the past tenyears. However, the terms ‘good character’ or ‘antecedents’ or‘criminal record’ are not definite or precise. These expressionsare capable of any interpretation and, therefore, it is left to theBwisdom of the licensing authority to adjudge whether particularperson possesses good character or good antecedents or not.Likewise, insofar as history of criminal record is concerned, it isnot spelled out as to whether such criminal record is based onconviction in case or mere lodging of FIR would be termed asCcriminal record. Therefore, the provision is quashed in thepresent form, but, at the same time, liberty is given to the rulemaking authority to have suitable provision of precise nature.Consequently, condition No. 16 of Part in the present form isalso set aside. [Para 95]458-D-F]D8. Condition No. 2 of Part of general conditions (GOC)was that size of stage in the bar room should not be less than 10feet x 12 feet; that the stage in bar room has to be with non-transparent partition between hotel, restaurant and bar room area.In essence, it segregated bar room area from hotel and restaurantand Fixed partition is prescribed between permit room and danceEroom. There is no objection to the condition that the size of stagein the bar room should not be less than 10 feet x 12 feet. However,as regards the partition, there is no rationality or justification inimposing such condition which appears to be quite unreasonableand there cannot be any rationale in this provision having regard

Fto any objective sought to be achieved. Therefore, this provisionis struck down. [Paras 96, 97][458-G-H; 459-A-C]

9. Condition No.11 of Part stipulates that the place wheredance is to be performed shall be at least 1 km away from theeducational and religious institutions. Such condition does notGtake into account the ground realities particularly in the city ofMumbai where it is difficult to find any place which is 1 km awayfrom either an education institution or religious institution. This,therefore, amounts to fulfilling an impossible condition and theeffect thereof is that, at no place, in Mumbai, licence would begranted. Therefore, this condition is also arbitrary andH

unreasonable and is quashed, with liberty to the respondents toprescribe the distance from educational and religious institutions,which is reasonable and workable. [Para 98][459-C-E]

10. Condition No.2 of Part imposes an obligation on theemployers to the effect that working women, the dancers andwaiters/waitresses must be employed under written contracton monthly salary and their monthly salary should be depositedin their bank accounts with all the benefits required under thelaw and the copy of such contracts should be deposited with thelicensing authority as well. Insofar as provision relating toentering into written contract as well as depositing of theremuneration in the bank accounts is concerned, it appears to bejustified as it would make the conditions on which such workingwomen, dancers and waiters/waitresses are employed, transparentthereby eliminating or minimising any chances of exploitation orother disputes. However, the condition of employing suchpersons on monthly salary does not stand the judicial scrutiny.This shows that such persons are to be employed in particularmanner i.e. on monthly basis. There can be other modes ofemployment permissible in law and the employers have legal rightto adopt such modes. For example, it could be employment oncontract basis i.e. where the remuneration can be fixed for eachperformance. Moreover, it impinges upon the rights of suchworkers as well who may, otherwise, be free to give theirperformances at more than one place. Therefore, it imposesrestriction even upon such employees and infringes their rightunder Article 19(1)(g). The State Government has failed to showany compelling public interest to curtail the choices of womenperformers. This part of Condition No. 2 is set aside. Theprovisions for written contract, deposit of the remuneration inthe bank accounts of the employee as well as submission of thesewritten contracts with the licensing authority are appropriate.Rest of the provision is struck down. [Para 99][459-F-H; 460-A-D]

11. Condition No. 9 of Part prescribes timing of suchdance performances only between 6 pm to 11:30 pm. It is notmanifestly unreasonable. Merely because establishments areotherwise open until 1:30 am (next day) or 12:30 am (next day)

Adoes not mean that the State has no power to restrict the time ofdance performances till 11:30 pm. Even period of 6 pm to 11:30pm for dance performances is quite sufficient and substantial asit allows 5½ hours of such performances. [Para 100][460-E-F]

12. Condition No. 12 of Part prescribes that no alcoholBshall be served in the bar room where dances are staged. This istotally disproportionate, unreasonable and arbitrary. State seemsto be more influenced by moralistic overtones under wrongpresumption that persons after consuming alcohol wouldmisbehave with the dancers. There may be aberrations orsporadic incidents of this nature which can happen not only at theCplaces where dance performances are staged but at other placesincluding bar rooms and even main restaurants. Other measureshave to be adopted to check such nuance. There cannot be acomplete prohibition from serving alcoholic beverages.Therefore, condition No. 12 is quashed. [Para 101][460-F-H; 461-

13. Condition No. 20 of Part mandating installing of CCTVCameras is totally inappropriate and amounts to invasion ofprivacy and is, thus, violative of Articles 14, 19(1)(a) and 21 ofthe Constitution. [Para 102][461-B]

K.S. Puttaswamy and Another v. Union of India andEOthers (2017) 10 SCC 1: [2017] 10 SCR 569 –followed.

M.P. AIT Permit Owners Assn. and Another v. State ofM.P. (2004) 1 SCC 320 : [2003] 6 Suppl. SCR 331;Engineering Kamgar Union v. Electro Steels CastingsFLtd. and Another (2004) 6 SCC 36 : [2004] 1 Suppl.SCR 301; Nikesh Tarachand Shah v. Union of Indiaand Another (2018) 11 SCC 1 : [2017] 12 SCR 358;State of Maharashtra v. Joyce Zee alias Temiko (1973)ILR 1299 (Bom); Sadhna v. State (1981) 19 DLT 210;GNarendra H. Khurana v. Commissioner of Police (2004)2 Mah LJ 72; Ram Krishna Dalmia v. Justice S.R.Tendolkar & Ors. [1959] SCR 279; State ofMaharashtra & Anr. v. Basantibai Mohanlal Khetan &Ors. (1986) 2 SCC 516 : [1986] 1 SCR 707; M/s LaxmiKhandsari & Ors. v. State of U.P. & Ors. (1981) 2 SCCH600 : [1981] 3 SCR 92; Ranjit D. Udeshi v. State of

INDIAN HOTEL AND RESTAURANT ASSOCIATION (AHAR)v. STATE OF MAHARASHTRA

Maharashtra [1965] 1 SCR 65; Pawan Kumar v. Stateof Haryana & Anr. (1996) 4 SCC 17 : [1996] 2 Suppl.SCR 392; Director General, Directorate General ofDoordarshan & Ors. v. Anand Patwardhan & Anr. (2006)8 SCC 433 : [2006] 5 Suppl. SCR 403; Ajay Goswamiv. Union of India & Ors. (2007) 1 SCC 143 : [2006] 10Suppl. SCR 770; State of Bombay v. R.M.D.Chamarbaugwala & Anr. [1957] SCR 874; State ofTamil Nadu represented by its Secretary, Home,Prohibition and Excise Department & Ors. v. K. Balu &Anr. (2017) 2 SCC 281 : [2016] 11 SCR 244 – referredto.

Feminist Contributions from the Margins: ShiftingConceptions of Work and Performance of the BarDancers of Mumbai XLV Econ. & Pol. Weekly (48)2010; RCWS (SNDT University, Mumbai), ‘WorkingWomen in Mumbai Bars: Truths behind the controversy’(Jul’ 2005); RCWS (SNDT University, Mumbai),‘After the Ban – Women Working in Dance Bars’ (Dec’2006); Dalwai, Sameena, ‘Performing caste: the banon bar dancing in Mumbai’ Keele University (2012);Anna Morcom, Courtesans, Bar Girls and DancingBoys: Illicit Worlds of Indian Dance (Hachette India,2014); A. Etzioni and E. Etzioni (eds.), Social Change(1964); W. Moore, Social Change (1963), W. Mooreand R. Cook (eds.), Readings on Social Change (1967)– referred to.

Case Law Reference

384SUPREME COURT REPORTS

[2019] 1 S.C.R.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.576 of 2016.

EUnder Article 32 of the Constitution of India.

WITH

Writ Petition (C) Nos. 24 and 119 of 2017.

Ms. Pinky Anand, ASG, Mukul Rohatgi, Jayant Bhushan, ShekharFNaphade, Sr. Advs., Prasenjit Keswani, Satyajit Saha, Raghvendra PratapSingh, Srishti Kumar, Mrs. V. D. Khanna, Manoj K. Mishra, UmeshDubey, Jyoti Mishra, Sandeep Kumar Dwivedi, Nikhil Nayyar, Ms. VeenaGowda, N. Sai Vinod, Dhananjay Baijal, Divyanshu Rai, SandeepDeshmukh, Vasim Siddiqui, Nar Hari Singh, Prateek Rusia, AbhikalpGPratap Singh, Mrs. Deepa Kulkarni, Ms. Suvarna Ganu, Ms. SaudaminiSharma, Nishant Ramakantrao Katneshwarkar, Ravindra KeshavraoAdsure, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. This batch of three Writ Petitions was heardtogether and is being disposed of by this Common Judgment as similarissues and prayers are raised in all these petitions.

2. The instant writ petitions have been preferred under Article 32of the Constitution of India, challenging certain provisions of theMaharashtra Prohibition of Obscene Dance in Hotels, Restaurant andBar Rooms and Protection of Dignity of Women (Working therein) Act,2016 (hereinafter referred to as the ‘Act’) and also the Rules framedthere under being the Maharashtra Prohibition of Obscene Dance inHotels, Restaurant and Bar Rooms and Protection of Dignity of Women(Working therein) Rules, 2016 (hereinafter referred to as the ‘Rules’)which, as the Petitioners submit, violate the Fundamental Rights of thePetitioners guaranteed under Articles 14, 15, 19 (1)(a), 19 (1)(g) and 21of the Constitution of India.

3. The petitioner No. 1 in Writ Petition (Civil) No. 576 of 2016 isan Association of various Hotel Owners and Bar Owners and/orConductors of the same, who carry on business of running Restaurantsand Bars in Mumbai and is duly registered under the Trade Unions Act.Petitioner No. 2 is the secretary of petitioner No. 1 and is citizen ofIndia, who runs restaurant and bar.

The petitioner in Writ Petition (Civil) No. 24 of 2017, R.R. PatilFoundation is registered Union under the provisions of the BombayPublic Trust Act and the President thereof has been authorised to filethe writ petition.

The petitioner in Writ Petition (Civil) No. 119 of 2017 is the BhartiyaBargirls Union, registered under the Trade Union Act, 1926 andrepresented through its Hony. President. The petition is filed in arepresentative capacity on behalf of large number of women dancers,singers and waitresses.

4. Respondent No.1 in all the three writ petitions is the State ofMaharashtra. The other respondents in the three petitions comprise ofvarious departments/authorities of the State of Maharashtra.

5. brief historical description behind enacting this Act and theRules is as follows:

AAny person intending to start an Eating House and Restaurantis required to obtain permission from the Municipal Corporation underthe Mumbai Municipal Corporation Act as also the Food and DrugsAdministration. After Grade-I licence is granted to the establishment,and the establishment complies with the requirements under Rules 44and 45 of the Bombay Foreign Liquor Rules, 1953 framed under theBprovisions of the Bombay Prohibition Act, 1949, the establishment isgranted an FL III licence for sale of Indian Made Foreign Liquor (IMFL)in the Restaurant. Further, persons desiring to serve only Beer in theRestaurant apply for licence under the Special Permit and LicensesRules framed under the provisions of the Bombay Prohibition Act, 1949Cand are granted licenses in Form ‘E’ for running Beer Bar. The personshaving Eating Houses besides obtaining an FL III or Form ‘E’ licenceunder the provisions of the relevant Rules framed under the BombayProhibition Act, 1949, are required to have licence under the BombayPolice Act, 1951, called the Public Entertainment Licence, fromrespondent No.2, which is the Licensing Authority under the Rules framedDfor Licensing and Controlling Places of Public Entertainment in GreaterMumbai, 1953. It is stated that the requirement of having multiplicity oflicenses is being done away by respondent No.1. Further, any restaurantowner desiring to have music and dance or either music or dance in therestaurant is also required to obtain Premises and Performance LicenceEunder the Rules for Licensing and Controlling Places of PublicAmusements (other than Cinemas) and Performances for PublicAmusement, including Melas and Tamasha’s Rules, 1960 (hereinafterreferred to as the ‘Amusement Rules’) framed by respondent No.2 underthe powers vested in him under Section 33 of the Maharashtra PoliceAct, 1951. According to the provisions of Section 33 of the MaharashtraFPolice Act, 1951, respondent No.2 i.e. the Commissioner of Police hasbeen conferred with the power to frame Rules. The Commissioner ofPolice can frame Rules for not only licensing and controlling places ofpublic amusement and entertainment but also for taking necessary stepsto prevent inconvenience etc. to residents or passers-by or for maintainingGpublic safety and for taking necessary steps in the interests of publicorder, decency and morality. The Commissioner of Police has accordinglyframed Rules for Licensing and Controlling Places of PublicEntertainment, 1953 and the Amusement Rules. According to theprovisions of Chapter 8 of the said Amusement Rules, Premises Licenceis granted after all the requirements prescribed under Rules 108 andH

108(A) are complied with. Chapter 9 of the said Amusement Rulesprescribes all the conditions for grant of Performance Licence. Asper the petitioners, their members have been granted valid licences underthe provisions of the said Entertainment Rules and Amusement Rulesand have been carrying on business since the past several years andtheir licences have been renewed from time to time.

6. As per the respondent State, it noticed that prostitution racketswere being run in hotel establishments in which dance programmes werebeing conducted. Even such dance forms were observed as obscene bythe State. This resulted in the formation of Committee for suggestionsto deal with aspects mentioned above. After considering guidelines givenby the aforesaid Committee and independent studies on socio-economicsituations of women involved in dance bars, Section 33A and 33B wereadded vide Bombay Police Amendment Act, 2005 in Maharashtra PoliceAct, 1951, (erstwhile Bombay Police Act, 1951) which prohibited anykind of dance performance in an eating house, permit room or beer bar.Section 33B provided an exception to Section 33A, in cases where thedance performance was held in theatre, or club where entry wasrestricted to members only. The said amendment was struck down asunconstitutional by High Court of Bombay and that judgment of theHigh Court was upheld by this Court in the matter of State ofMaharashtra & Anr. v. Indian Hotel and Restaurants Association& Ors.[1]{hereinafter referred to as the ‘Indian Hotel and RestaurantsAssociation (1)’}

7. Thereafter, the State of Maharashtra introduced freshprovision vide amendment in the year 2014 referred to as MaharashtraPolice (Second Amendment) Act, 2014 and added Section 33A to theMaharashtra Police Act, 1951, while Section 33B came to be deleted. Apetition bearing Writ Petition (Civil) No.793 of 2014 came to be filed inthis Court, on behalf of Indian Hotel and Restaurants Association underArticle 32 of the Constitution of India, whereby the Maharashtra Police(Second Amendment) Act, 2014 vide which vires of Section 33A, cameto be challenged on the ground of the same being violative of Article 14,19 (1)(a), 19 (1)(g) and 21 of the Constitution of India. This Courtissued notice in the above writ petition and respondent State ofMaharashtra filed counter affidavit, thereby opposing the writ petition.This Court, vide order dated October 15, 2015, stayed the operation of

1 (2013) 8 SCC 519

Athe provisions enshrined under Section 33A(1) of the Act with riderthat no performance of dance shall remotely be expressive of any kindof obscenity. It is, thereafter, that respondent No. 1 enacted the impugnedAct and the Rules, certain provisions whereof have been challenged inthese petitions. In view of the developments, Writ Petition (Civil) No.793 of 2014 was disposed of as infructuous.B

The impugned Act and the Rules:

8. The Preamble to the Act mentions that it is an Act to providefor prohibition of obscene dance in hotels, restaurants, bar rooms andother establishments and to improve the conditions of work, protect theCdignity and safety of women in such places with view to prevent theirexploitation. The Act extends to the whole of the State of Maharashtra.Section 2 of the Act provides definitions to certain terms and the relevantamong these are reproduced below:

“2(3) “bar room” means place, to which the owner or proprietorDadmits the public and where dances are staged by or at the instanceof the owner or proprietor of such establishment for theentertainment of customers;

(4) “dancer” means any artist performing dance on the stage orin any part of the premises;

E(8) “obscene dance” means dance that is obscene within themeaning of Section 294 of the Indian Penal Code and any otherlaw for the time being in force and shall include dance, -

(i) which is designed only to arouse the prurient interest of theaudience; and

(ii) which consists of sexual act, lascivious movements, gesturesfor the purpose of sexual propositioning or indicating the availabilityof sexual access to the dancer, or in the course of which, thedancer exposes his or her genitals or, if female, is topless;

(10) “place” includes establishment, house, building, tent andGany means of transport whether by sea, land or air;”

9. As per Section 3, no person is entitled to start hotel, restaurant,bar room or any other place where dances are staged, without obtaininga licence under this Act and without complying with the conditions andrestrictions imposed by the Act and the Rules. Section 4 mentions licensingH

authority, competent to grant licence. Section 5 stipulates certainconditions which are to be fulfilled in the absence whereof licensingauthority is not to grant licence under the Act. It reads as under:

“5. The licensing authority shall not grant licence under this Actunless it is satisfied that,-

(a) the conditions prescribed by this Act and the Rules have beencomplied with by the applicant,

(b) adequate conditions of work and provisions for safety in respectof women employed in the hotel, restaurant or bar room asprescribed have been provided, and

(c) adequate precautions have been taken in the place, in respectof which the licence is to be given, to provide for the safety of thepersons visiting such place.”

10. Section 6 lays down the procedure for grant of licence. Forthis purpose, any person desirous to obtain the licence will have to movean application as per the format prescribed and fulfill the eligibility criteriaas prescribed. As per sub-section (4) of Section 6 the licensing authorityis not supposed to grant licence for the place for which licence forDiscotheque or Orchestra have been granted. Exact language of thissub-section (4) is as under:

“(4) Notwithstanding anything contained in the Maharashtra PoliceAct, no licence shall be granted for Discotheque or Orchestra, inthe place for which the licence under this Act is granted, nor alicence shall be granted under this Act for the place for which alicence for Discotheque or Orchestra has been granted.”

11. Section 8 prescribes criminal and civil consequences for usingthe place in contravention of Section 3 i.e. without obtaining the licence.It is to the following effect:

“8(1) The owner or proprietor or manager or any person actingon his behalf, who uses the place in contravention of section 3shall, on conviction, be punished with imprisonment for termwhich may extend to five years or fine which may extend to rupeestwenty-five lakhs, or with both; and in case of continuing offence,further fine of rupees twenty-five thousand for each day duringwhich the offence continues.

(2) The owner or proprietor or manager or any person acting onhis behalf, shall not allow any obscene dance or exploit any workingwoman for any immoral purpose in any place and the personcommitting such act shall, on conviction, be punished withimprisonment for term which may extend to three years or afine which may extend to rupees ten lakhs, or with both; and incase of continuing offence, further fine which may extend torupees ten thousand for each day during which the offencecontinues.

(3) The offences under sub-sections (1) and (2) shall be cognizableand non-bailable and triable by Judicial Magistrate of the FirstClass.

(4) No person shall throw or shower coins, currency notes or anyarticle or anything which can be monetized on the stage or handover personally or through any means coins, currency notes orany article or anything which can be monetized, to dancer ormisbehave or indecently behave with the working women or touchher person, in any place. Any person who commits such act orabets the commission of such acts shall, on conviction, be punishedwith imprisonment for term which may extend to six months ora fine which may extend to rupees fifty thousand, or with both.

(5) The offence punishable under sub-section (4) shall be non-cognizable and bailable and triable by Judicial Magistrate of theFirst Class.

(6) Any person who contravenes any of the provisions of this Actfor which no other punishment has been provided, shall, onconviction, be punished with imprisonment for term which mayextend to three months or fine which may extend to rupees twenty-five thousand, or with both.”

12. The provisions are also made for appeal, revision etc. againstthe order of the licensing authority refusing to grant licence. As perGSection 12, Grievance Redressal Committee is to be constituted by theState Government to ensure that the conditions of service of womenworking in the hotel, restaurant, bar rooms and establishment to whichthe provisions of this Act apply are duly observed. This Committee isgiven the task to redress the grievances of such women in such manneras may be prescribed.H

13. We may mention here that challenge in these writ petitions islaid to the provisions of Sections 2(8)(i), Section 6(4), Section 8(1)(2)and (4) of the Act.

14. Section 14 of the Act empowers the State Government tomake rules to carry out the purposes of the Act for which notification inthe Official Gazette is to be issued. These rules are to be laid beforeeach House of the State Legislature. Section 15 gives powers to theState Government to issue orders in case any difficulty arises in givingeffect to the provisions of the Act.

15. In exercise of powers conferred by Section 14 of the Act,Rules have been framed. Rule 3 pertains to the application for licenceand lays down the conditions for making such an application. It is couchedin the following language:

“3. Application for licence. - person shall be entitled to obtainor hold licence under these Rules, if he,-

(i) has attained 21 years of age;

(ii) is citizen of India or partner of partnership firm registeredunder the Indian Partnership Act, 1932 or company registeredunder the Companies Act, 1956 or the Companies Act, 2013;

(iii) possess good character and antecedents and shallnot have any history of criminal record in the past:

Provided that, the licensing authority shall considerthe history of criminal record of the applicant upto ten yearsbefore the date of application; and

(iv) complies with the conditions specified in Part-A of theSchedule.”

16. Schedule attached to the Rules mentions the conditions whichare to be complied with. Part thereof stipulates those conditions whichare to be fulfilled before grant of licence whereas Part stipulates theconditions which are to be fulfilled after grant of licence. It is notnecessary to reproduce all those conditions. Since, condition Nos. 2and 11 of Part and condition Nos. 2, 6, 9, 12, 16, 17 and 20 of Part Bare the subject matter of challenge in these petitions, we are reproducingthese conditions hereinbelow:

“SCHEDULEGeneral ConditionsPART-A

Conditions to be complied before grant of Lincence

2. One stage should not be less than 10ft. x 12ft. in size in barroom, with non-transparent partition between hotel, restaurant andbar room area. If the applicant is holding permit room licencethen there shall be fixed partition between the permit room anddance room.

11. The place shall be at least one kilometer away from theeducational and religious institutions.

PART-B

Conditions to be fulfilled after grant of Licence

2. The working women, the dancers and waiters/ waitressesmust be employed under written contract on monthly salary tobe deposited in their bank accounts (with all other benefits asrequired by law, including provident fund) and copy of suchcontract must be deposited with the licensing authority.

6. Customer shall not be permitted to thrown or shower coins,currency notes or any article or anything which can be monetizedon the stage in the direction of the dancer. Customers may,however, make payment of tip in appreciation of all the dancersby adding sum to the amount of the bill. Such tip shall be paid bythe licensee to the dancers of that evening and under nocircumstances such sum shall be deducted from the monthly salary.

xxxxxx

9. The bar room where dances are staged shall be open forpublic only between 6.00 P.M. to 11.30 P.M.

12. No alcoholic beverage shall be served in the bar room wheredances are staged.

16. The Licensee shall ensure that the employees have no criminalantecedents.

17. The Licensee shall not allow any modification or alternationin the premises without the permission of the licensing authority.

xxxxxx

20. The Licensee shall ensure that all entrances of the bar room,other places of amusement or public entertainment and the areawhich falls under the definition of public place shall be covered byCCTV cameras and recording shall be preserved for 30 days forthe inspection by the Competent Police Authority, if it isrequisitioned by him.”

17. Before we advert to the arguments advanced by the counselfor the petitioners on the basis of which validity of the aforesaid provisionsof the Act and the Rules is questioned, it would be necessary to discussthe judgment of this Court rendered in 2013 in the case of Indian Hoteland Restaurants Association (1). The reason for this course of actionis that many arguments of the petitioners proceed on the basis that someof the provisions in the Acts and the Rules are akin to Sections 33A and33B which were inserted vide Bombay Police Amendment Act, 2005 inMaharashtra Police Act, 1951. Even otherwise, the reasoning containedin the said judgment on the basis of which the aforesaid provisions werestruck down was heavily relied upon by the petitioners.

18. Indian Hotel and Restaurants Association (1)

As already noted above, any person intending to start an eatinghouse and restaurant is required to have certain licenses under theBombay Police Act which is known as public entertainment licence.Likewise, any restaurant owner desirous to have music or dance oreither music or dance in the restaurant is further required to obtainPremises and Performance Licence under the Amusement Rules. Thispower to give licence is vested with the Commissioner of Police as perSection 33 of the Maharashtra Police Act, 1951. Sections 33A and 33Bwere added by Amendment Act, 2005. These provisions along withStatement of Objects and Reasons are as under:

“Statement of Objects and Reasons

21. The Statement of Objects and Reasons clause appended toBill No. 40 of 2005 as introduced in the Maharashtra LegislativeAssembly on 14-6-2005 reads as under:

“(1) The Commissioner of Police, District Magistrates or otherofficers, being Licensing Authorities under the Rules framed inexercise of the powers of sub-section (1) of Section 33 of theBombay Police Act, 1951 have granted licences for holding danceperformance in the area under their respective charges in theState. The object of granting such performance licence is tohold such dance performance for public amusement. It is broughtto the notice of the State Government that the eating houses orpermit rooms or beer bars to whom licences to hold danceperformance, have been granted are permitting the performanceof dances in an indecent, obscene or vulgar manner. It has alsobeen brought to the notice of the Government that suchperformance of dances are giving rise to exploitation of women.The Government has received several complaints regarding themanner of holding such dance performances. The Governmentconsiders that the performance of dances in eating houses, permitrooms or beer bars in an indecent manner is derogatory to thedignity of women and is likely to deprave, corrupt or injure thepublic morality or morals. The Government considers it expedientto prohibit the holding of such dance performances in eatinghouses or permit rooms or beer bars.

(2) In the last Budget Session of the State Legislature, by wayof calling attention motion, the attention of the Governmentwas invited to mushroom growth of illegal dance bars and theirill effects on the society in general including ruining of families.The members of the State Legislature, from ruling and oppositionsides, pointed out that such dance bars are used as meeting pointsby criminals and pick-up joints of girls for indulging in immoralactivities and demanded that such dance bars should, therefore,be closed down. These dance bars are attracting young girlsdesirous of earning easy money and thereby such girls areinvolved in immoral activities. Having considered the complaintsreceived from general public including the people’srepresentatives, the Government considers it expedient to prohibitthe performance of dance, of any kind or type, in an eating house

or permit room or beer bar, throughout the State by suitablyamending the Bombay Police Act, 1951. However, provision isalso made to the effect that holding of dance performance in adrama theatre or cinema theatre or auditorium; registered sportsclub or gymkhana; or three-starred or above hotel; or in anyother establishment or class establishments which the StateGovernment may specify having regard to tourism policy forpromotion of tourism in the State or cultural activities, are notbarred but all such establishments shall be required to obtainperformance licence in accordance with the said Rules, forholding dance performance.

3. The Bill is intended to achieve the following objectives.

33-A.Prohibition of performance of dance in eating house,permit room or beer bar and other consequentialprovisions.—(1) Notwithstanding anything contained in this Actor the Rules made by the Commissioner of Police or the DistrictMagistrate under sub-section (1) of Section 33 for the area undertheir respective charges, on and from the date of commencementof the Bombay Police (Amendment) Act, 2005—

(a) holding of performance of dance, of any kind or type, inany eating house, permit room or beer bar is prohibited;

(b) all performance licences, issued under the aforesaid Rulesby the Commissioner of Police or the District Magistrate or anyother officer, as the case may be, being the licensing authority, tohold dance performance, of any kind or type, in an eating house,permit room or beer bar shall stand cancelled.

(2) Notwithstanding anything contained in Section 131, anyperson who holds or causes or permits to be held danceperformance of any kind or type, in an eating house, permit roomor beer bar in contravention of sub-section (1), shall, on conviction,be punished with imprisonment for term which may extend tothree years and with fine which may extend to rupees two lakhs:

Provided that, in the absence of special and adequate reasonsto the contrary to be mentioned in the judgment of the court,such imprisonment shall not be less than three months and fineshall not be less than rupees fifty thousand.

(3) If it is noticed by the licensing authority that any person,whose performance licence has been cancelled under sub-section(1), holds or causes to be held or permits to hold danceperformance of any kind or type in his eating house, permit roomor beer bar, the licensing authority shall, notwithstanding anythingcontained in the Rules framed under Section 33, suspend thecertificate of registration as an eating house and the licence tokeep place of public entertainment (PPEL) issued to permitroom or beer bar and within period of 30 days from the dateof suspension of the certificate of registration and licence, aftergiving the licensee reasonable opportunity of being heard, eitherwithdraw the order of suspending the certificate of registrationand the licence or cancel the certificate of registration and thelicence.

(4)-(5)

(6) The offence punishable under this section shall be cognizableand non-bailable.

33-B. Non-applicability of the provisions of Section 33-A incertain cases.—Subject to the other provisions of this Act, orany other law for the time being in force, nothing in Section 33-A shall apply to the holding of dance performance in dramaEtheatre, cinema theatre and auditorium; or sports club orgymkhana, where entry is restricted to its members only, or athree-starred or above hotel or in any other establishment orclass of establishments, which, having regard to (a) the tourismpolicy of the Central or State Government for promoting theFtourism activities in the State; or (b) cultural activities, the StateGovernment may, by special or general order, specify in thisbehalf.

Explanation.—For the purposes of this section, ‘sports club’ or‘gymkhana’ means an establishment registered as such underthe provisions of the Bombay Public Trusts Act, 1950, or theSocieties Registration Act, 1860 or the Companies Act, 1956, orany other law for the time being in force.”

19. It is the validity of these provisions which was the subjectmatter of the appeals before the Supreme Court as Bombay High Courthad declared these provisions as unconstitutional, being violative ofH

Articles 14, 19(1)(a) and 19(1)(g) of the Constitution. It may be notedthat in the writ petitions filed in the High Court, these provisions werechallenged as violative of Articles 15(1) and 21 as well. However,challenge on these grounds was repelled by the High Court. The HighCourt had held that these provisions suffer from the vice of arbitrarinessand, therefore, violative of Article 14 of the Constitution, as they providefor different standards of morality to institutions with similar activitiesand the activities in Section 33A establishments are less obscene butnonetheless the classification bears no nexus to the object of theAmendment. It was also held that there is violation of Article 19(1)(a)as dance is form of expression and the impugned enactment isunreasonable restriction which is not protective by Article 19(2) of theConstitution. Further, these provisions amount to an unreasonablerestriction on the right to freedom of profession as the State Governmentpermitted and granted licenses for running such establishments beingres commercium and that it deprives the bar owners on their right tocarry on their profession and bar dancers to carry on their profession.

20. While upholding the decision of the High Court founded oninvidious discrimination and, as such, violative of Article 14 of theConstitution, this Court, inter alia, stated the following reasons:

“118. The High Court, in our opinion, has rightly declined to relyupon the PRAYAS and Shubhada Chaukar’s Reports. The numberof respondents interviewed was so miniscule as to render boththe studies meaningless. As noticed earlier, the subsequent reportsubmitted by SNDT University has substantially contradicted theconclusions reached by the other two reports. The situation hereinis not similar to the circumstances which led to the decision inRadice [68 L Ed 690 : 264 US 292 (1924)] . In that case, NewYork statute was challenged as it prohibited employment of womenin restaurants in cities of first and second class between hours of10 p.m. and 6 a.m., on the ground of: (1) due process clause, bydepriving the employer and employee of their liberty to contract,and (2) the equal protection clause, by an unreasonable andarbitrary classification. The Court upheld the legislation on thefirst ground that the State had come to the conclusion that nightwork prohibited, so injuriously threatens to impair women’s peculiarand natural functions. Such work, according to the State, exposeswomen to the dangers and menaces incidental to nightlife in large

cities. Therefore, it was permissible to enable the police to preserveand promote the public health and welfare. The aforesaidconclusion was, however, based on one very important factorwhich was that: (Radice case [68 L Ed 690 : 264 US 292 (1924)], L Ed p. 694)

“The legislature had before it mass of information from whichit concluded that night work is substantially and especiallydetrimental to the health of women.”

In our opinion, as pointed out by the learned counsel for therespondents, in the present case, there was little or no material onthe basis of which the State could have concluded that dancing inthe prohibited establishments was likely to deprave, corrupt orinjure the public morality or morals.

119. The next justification for the so-called intelligible differentiais on the ground that women who perform in the bannedestablishment are vulnerable lot. They come from grosslydeprived backgrounds. According to the appellants, most of themare trafficked into bar dancing. We are unable to accept theaforesaid submission. perusal of the Objects and Reasons wouldshow that the impugned legislation proceed on hypothesis thatdifferent dance bars are being used as meeting points of criminalsand pick-up points of the girls. But the Objects and Reasons saynothing about any evidence having been presented to theGovernment that these dance bars are actively involved intrafficking of women. In fact, this plea with regard to traffickingof women was projected for the first time in the affidavit filedbefore the High Court. The aforesaid plea seems to have beenraised only on the basis of the reports which were submitted afterthe ban was imposed. We have earlier noticed the extracts fromthe various reports. In our opinion, such isolated examples wouldnot be sufficient to establish the connection of the dance barscovered under Section 33-A with trafficking. We, therefore, rejectthe submission of the appellants that the ban has been placed forthe protection of the vulnerable women.

120. The next justification given by the learned counsel for theappellants is on the basis of degree of harm which is being causedto the atmosphere in the banned establishments and the

surrounding areas. Undoubtedly as held by this Court in RamKrishna Dalmia case [AIR 1958 SC 538] , the legislature is freeto recognise the degrees of harm and may confine its restrictionsto those cases where the need is deemed to be the clearest. Wealso agree with the observations of the US Court in Patsone case[58 L Ed 539 : 232 US 138 (1914)] that the State may direct itslaw against what it deems the evil as it actually exists withoutcovering the whole field of possible abuses, but such conclusionhave to be reached either on the basis of general consensus sharedby the majority of the population or on the basis of empirical data.In our opinion, the State neither had the empirical data to concludethat dancing in the prohibited establishment necessarily leads todepravity and corruption of public morals nor was there generalconsensus that such was the situation. The three reports presentedbefore the High Court in fact have presented divergent viewpoints.Thus, the observations made in Patsone [58 L Ed 539 : 232 US138 (1914)] are not of any help to the appellant. We are alsoconscious of the observations made by this Court in Mohd. HanifQuareshi [AIR 1958 SC 731] , wherein it was held that there is apresumption that the legislature understands and appreciates theneeds of its people and that its laws are directed to problemsmade manifest by experience and that its discriminations are basedon adequate grounds. In the present case, the appellant has failedto give any details of any experience which would justify suchblatant discrimination, based purely on the class or location of anestablishment.121. We are of the opinion that the State has failed to justify theclassification between the exempted establishments and prohibitedestablishments on the basis of surrounding circumstances, orvulnerability. Undoubtedly, the legislature is the best judge tomeasure the degree of harm and make reasonable classificationbut when such classification is challenged the State is duty-bound to disclose the reasons for the ostensible conclusions. Inour opinion, in the present case, the legislation is based on anunacceptable presumption that the so-called elite i.e. rich and thefamous would have higher standards of decency, morality orstrength of character than their counterparts who have to contentthemselves with lesser facilities of inferior quality in the dancebars. Such presumption is abhorrent to the resolve in the

ABC

Preamble of the Constitution to secure the citizens of India “equalityof status and opportunity and dignity of the individual”. The StateGovernment presumed that the performance of an identical danceitem in the establishments having facilities less than three starswould be derogative to the dignity of women and would be likelyto deprave, corrupt or injure public morality or morals; but wouldnot be so in the exempted establishments. These are misconceivednotions of bygone era which ought not to be resurrected.

122. Incongruously, the State does not find it to be indecent, immoralor derogatory to the dignity of women if they take up other positionsin the same establishments such as receptionist, waitress orbartender. The women who serve liquor and beer to customersdo not arouse lust in customers but women dancing would arouselust. In our opinion, if certain kind of dance is sensuous in natureand if it causes sexual arousal in men it cannot be said to be morein the prohibited establishments and less in the exemptedestablishments. Sexual arousal and lust in men and women anddegrees thereof, cannot be said to be monopolised by the upper orthe lower classes. Nor can it be presumed that sexual arousalwould generate different character or behaviour, depending onthe social strata of the audience. History is replete with examplesof crimes of lust committed in the highest echelons of the society

as well as in the lowest levels of society. The High Court hasrightly observed, relying on the observations of this Court inGaurav Jain v. Union of India [(1997) 8 SCC 114 : 1998 SCC(Cri) 25] that: (Indian Hotel and Restaurants Assn. Case [(2006)3 Bom CR 705] , Bom Cr p. 744, para 48)

“48. ‘27.… Prostitution in five-star hotels is licence givento persons from higher echelons.’ (Gaurav Jain case [(1997)8 SCC 114 : 1998 SCC (Cri) 25] , SCC p. 132, para 27)”

21. Likewise, arguments of the State questioning the opinion ofthe High Court as the provisions to be ultra vires Article 19(1)(g) wererejected by this Court with the following discussion:

“126. Upon analysing the entire fact situation, the High Court hasheld that dancing would be fundamental right and cannot beexcluded by dubbing the same as res extra commercium. TheState has failed to establish that the restriction is reasonable orthat it is in the interest of general public. The High Court rightly

scrutinised the impugned legislation in the light of observations ofthis Court made in Narendra Kumar [AIR 1960 SC 430 : (1960)2 SCR 375] , wherein it was held that greater the restriction, themore the need for scrutiny. The High Court noticed that in theguise of regulation, the legislation has imposed total ban on dancingin the establishments covered under Section 33-A. The High Courthas also concluded that the legislation has failed to satisfy thedoctrine of direct and inevitable effect. (See Maneka Gandhicase [(1978) 1 SCC 248] .) We see no reason to differ with theconclusions recorded by the High Court. We agree with Mr Rohatgiand Dr Dhavan that there are already sufficient rules andregulations and legislation in place which, if efficiently applied,would control if not eradicate all the dangers to the societyenumerated in the Preamble and the Statement of Objects andReasons of the impugned legislation.

127. The activities of the eating houses, permit rooms and beerbars are controlled by the following regulations:

(i) The Bombay Municipal Corporation Act;

(ii) The Bombay Police Act, 1951;

(iii) The Bombay Prohibition Act, 1949;

(iv) The Rules for Licensing and Controlling Places of PublicEntertainment, 1953;

(v) The Rules for Licensing and Controlling Places of PublicAmusement other than Cinemas;

(vi) And other orders as are passed by the Government from timeto time.

128. The restaurants/dance bar owners also have to obtainlicences/permissions as listed below:

(i) Licence and registration for eating house under the BombayPolice Act, 1951;

(ii) Licence under the Bombay Shops and Establishment Act, 1948and the rules made thereunder;

(iii) Eating house licence under Sections 394, 412-A, 313 of theBombay Municipal Corporation Act, 1888;

[2019] 1 S.C.R.

A(iv) Health licence under the Maharashtra Prevention of FoodAdulteration Rules, 1962;

(v) Health licence under the Mumbai Municipal Corporation Act,1888 for serving liquor;

(vi) Performance licence under Rules 118 of the AmusementRules, 1960;

(vii) Premises licence under Rule 109 of the Amusement Rules;

(viii) Licence to keep place of public entertainment under Section33(1) clauses (w) and (y) of the Bombay Police Act, 1951 and thesaid Entertainment Rules;

(ix) FL III licence under the Bombay Prohibition Act, 1949 andRule 45 of the Bombay Foreign Liquor Rules, 1953 or Form Elicence under the Special Permits and Licences Rules for sellingor serving IMFL and beer;

(x) Suitability certificate under the Amusement Rules.

129. Before any of the licences are granted, the applicant has tofulfill the following conditions:

(i) Any application for premises licence shall be accompanied bythe site plan indicating inter alia the distance of the site from anyEreligious, educational institution or hospital.

(ii) The distance between the proposed place of amusement andthe religious place or hospital or educational institution shall bemore than 75 m.

(iii) The proposed place of amusement shall not have been locatedin the congested and thickly populated area.

(iv) The proposed site must be located on road having width ofmore than 10 m.

(v) The owners/partners of the proposed place of amusementGmust not have been arrested or detained for anti-social or anysuch activities or convicted for any such offences.

(vi) The distance between two machines which are to be installedin the video parlour shall be reflected in the plan.

(vii) No similar place of public amusement exists within radiusof 75 m.

(viii) The conditions mentioned in the licence shall be observedthroughout the period for which the licence is granted and if thereis breach of any one of the conditions, the licence is likely to becancelled after following the usual procedure.

130. The aforesaid list, enactments and regulations are furthersupplemented with the regulations protecting the dignity of women.The provisions of the Bombay Police Act, 1951 and moreparticularly Section 33(1)(w) of the said Act empowers thelicensing authority to frame rules:

“licensing or controlling places of public amusement orentertainment and also for taking necessary steps to preventinconvenience to residents or passers-by or for maintainingpublic safety and for taking necessary steps in the interests ofpublic order, decency and morality.”

131. Rules 122 and 123 of the Amusement Rules, 1960 alsoprescribe conditions for holding performances:

“122.Acts prohibited by the holder of performancelicence.—No person holding performance licence under theseRules shall, in the beginning, during any interval or at the endof any performance, or during the course of any performance,exhibition, production, display or staging, permit or himselfcommit on the stage or any part of the auditorium—

(a) any profanity or impropriety of language;

(b) any indecency of dress, dance, movement or gesture;

Similar conditions and restrictions are also prescribed underthe performance licence:

The licensee shall not, at any time before, during the course of orsubsequent to any performance, exhibition, production, display orstaging, permit or himself commit on the stage or in any part ofthe auditorium or outside it:

(i) any exhibition or advertisement whether by way of postersor in the newspapers, photographs of nude or scantily dressedwomen;

(ii) any performance at place other than the place providedfor the purpose;

(iii) any mixing of the cabaret performers with the audienceor any physical contact by touch or otherwise with any memberof the audience;

(iv) any act specifically prohibited by the Rules.”

132. The Rules under the Bombay Police Act, 1951 have beenframed in the interest of public safety and social welfare and tosafeguard the dignity of women as well as prevent exploitation ofwomen. There is no material placed on record by the State toshow that it was not possible to deal with the situation within theframework of the existing laws except for the unfoundedconclusions recorded in the Preamble as well as the Statement ofObjects and Reasons. [See State of Gujarat v. Mirzapur MotiKureshi Kassab Jamat [(2005) 8 SCC 534 : AIR 2006 SC 212]wherein it is held that: (SCC p. 573, para 75) the standard ofjudging reasonability of restriction or restriction amounting toprohibition remains the same, excepting that total prohibitionmust also satisfy the test that lesser alternative would beinadequate.] The Regulations framed under Section 33(1)(w) ofthe Bombay Police Act, more so Regulations 238 and 242 providethat the licensing authority may suspend or cancel licence forany breach of the licence conditions. Regulation 241 empowersthe licensing authority or any authorised police officer, not belowthe rank of Sub-Inspector, to direct the stoppage of anyperformance forthwith if the performance is found to beobjectionable. Section 162 of the Bombay Police Act empowersa competent authority/Police Commissioner/ District Magistrateto suspend or revoke licence for breach of its conditions. Thus,sufficient power is vested with the licensing authority to safeguardany perceived violation of the dignity of women through obscenedances.

133. From the objects of the impugned legislation and amendmentitself, it is crystal clear that the legislation was brought about on

the admission of the police that it is unable to effectively controlthe situation in spite of the existence of all the necessary legislation,rules and regulations. One of the submissions made on behalf ofthe appellants was to the effect that it is possible to control theperformances which are conducted in the establishments fallingwithin Section 33-B; the reasons advanced for the aforesaid onlyhighlight the stereotype myths that people in upper strata of societybehave in orderly and moralistic manner. There is no independentempirical material to show that propensity of immorality ordepravity would be any less in these high-class establishments.On the other hand, it is the specific submission of the appellantsthat the activities conducted within the establishments coveredunder Section 33-A have the effect of vitiating the atmospherenot only within the establishments but also in the surrounding locality.According to the learned counsel for the appellants, during dancein the bars the dancers wore deliberately provocative dresses.The dance becomes even more provocative and sensual whensuch behaviour is mixed with alcohol. It has the tendency to leadto undesirable results. Reliance was placed upon State of Bombayv. R.M.D. Chamarbaugwala [AIR 1957 SC 699], KhodayDistilleries Ltd. v. State of Karnataka [(1995) 1 SCC 574], Stateof Punjab v. Devans Modern Breweries Ltd. [(2004) 11 SCC26], New York State Liquor Authority v. Bellanca [69 L Ed 2d357 : 452 US 714 (1981)] and R. v. Quinn [(1962) 2 QB 245 :(1961) 3 WLR 611 : (1961) 3 All ER 88 (CCA)] to substantiatethe aforesaid submissions. Therefore, looking at the degree ofharm caused by such behaviour, the State enacted the impugnedlegislation.134. We are undoubtedly bound by the principles enunciated bythis Court in the aforesaid cases, but these are not applicable tothe facts and circumstances of the present case. In KhodayDistilleries Ltd. [(1995) 1 SCC 574] , it was held that there is nofundamental right inter alia to do trafficking in women or in slavesor to carry on business of exhibiting and publishing pornographicor obscene films and literature. This case is distinguishablebecause of the unfounded presumption that women are being/were trafficked in the bars. State of Punjab v. Devans ModernBreweries Ltd.[(2004) 11 SCC 26] dealt with liquor trade, whereas

ABCDE

the present case is clearly different. The reliance on New YorkState Liquor Authority [69 L Ed 2d 357 : 452 US 714 (1981)] iscompletely unfounded because in that case endeavour of the Statewas directed towards prohibiting topless dancing in anestablishment licensed to serve liquor. Similarly, R. v. Quinn[(1962) 2 QB 245 : (1961) 3 WLR 611 : (1961) 3 All ER 88 (CCA)]dealt with indecent performances in disorderly house. Hence,this case will also not help the appellants. Therefore, we are notimpressed with any of these submissions. All the activitiesmentioned above can be controlled under the existing regulations.

135. We do not agree with the submission of Mr Subramaniumthat the impugned enactment is form of additional regulation, asit was felt that the existing system of licence and permits wereinsufficient to deal with problem of ever-increasing dance bars.We also do not agree with the submissions that whereas exemptedestablishments 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 isthat though it may be possible to regulate these permit rooms anddance bars which are located within Mumbai, it would not bepossible to regulate such establishments in the semi-urban andrural parts of the Maharashtra. If that is so, it is sad reflectionon the efficiency of the licensing/regulatory authorities inimplementing the legislation.

136. The end result of the prohibition of any form of dancing inthe establishments covered under Section 33-A leads to the onlyconclusion that these establishments have to shut down. This isevident from the fact that since 2005, most if not all the dance barestablishments have been literally closed down. This has led tothe unemployment of over 75,000 women workers. It has beenbrought on the record that many of them have been compelled totake up prostitution out of necessity for maintenance of theirfamilies. In our opinion, the impugned legislation has proved to betotally counter-productive and cannot be sustained being ultra viresArticle 19(1)(g).”

Submissions of the petitioners:

22. Mr. Jayant Bhushan, learned senior counsel began hissubmissions with fervent plea that the respondent State was bent uponbanning altogether dance performances in the bars/permit homes orrestaurants etc. His argument was that earlier two attempts of identicalnature made by the respondents failed to pass the constitutional muster.The provisions of Sections 33A and 33B inserted vide Amendment Act,2005 to the Bombay Police Act, 1951 had been struck down asunconstitutional being in contravention of Articles 14 and 19(1)(g) of theConstitution. In spite thereof, the State did not grant licences to anyperson including the petitioners. This deliberate inaction on the part ofthe State led to filing of the contempt petition by the petitioners in whichnotice was issued on May 05, 2014. After receiving the notice in thesaid contempt petition, the State brought on the statute book Section33A in another avtar by amendment Act on June 25, 2014. According tothe petitioners, it was verbatim similar to Section 33A which was alreadyheld unconstitutional and it is, for this reason, in Writ Petition (Civil) No.793 of 2014 wherein constitutionality of this provision was challenged,this Court passed orders dated October 15, 2015 staying the operationof newly added Section 33A of the Bombay Police Act. Thereafter, onNovember 26, 2015, this Court directed licences to be granted in twoweeks. In order to frustrate the aforesaid directions of this Court,respondents came up with 26 new conditions for grant of licence. Asthe petitioners had objection to some of the conditions, another applicationwas moved in Writ Petition (Civil) No. 9793 of 2014. After orders datedMarch 02, 2016 were passed by the Court modifying some of the said26 conditions, on April 18, 2016, this Court granted one week time to therespondents to comply with its directions. Again, with intention to frustratethe effect of the judgment of this Court, the respondents passed theimpugned legislation and also framed impugned rules thereunder.

23. Mr. Bhushan further pointed out that even when certain orderswere passed by the Supreme Court for issuance of the licence and forprocessing other applications on the principle of parity, till date not asingle licence has been issued to any of the petitioners/members of theassociation. All this amply shows that the only intention of the State is toput an absolute ban on dance bars, as the respondent State is ensuringthat licences are rejected on one ground or the other. He also endeavouredto demonstrate this by reading the orders passed by the State rejectingeach and every application that has been made for grant of licence evenunder the new Act and Rules.

BCDEF

408SUPREME COURT REPORTS

[2019] 1 S.C.R.

A24. Mr. Bhushan specifically referred to the following passagefrom the earlier judgment wherein plea of public interest or morality wasrepelled:

“53. With regard as to whether there is any infringement of rightsunder Article 19(1)(g), it is submitted by the learned Senior CounselBthat the fundamental right under Article 19(1)(g) to practise anyprofession, trade or occupation is subject to restrictions in Article19(6). Therefore, by prohibiting dancing under Section 33-A, noright of the bar owners are being infringed. The curbs imposed bySections 33-A and 33-B only restrict the owners of the prohibitedestablishments from permitting dances to be conducted in theCinterest of general public. The term “interest of general public” isa wide concept and embraces public order and public morality.The reliance in support of this proposition was placed on State ofGujarat v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8SCC 534 : AIR 2006 SC 212]. Reference was also made toDMunicipal Corpn. of the City of Ahmedabad v. Jan MohammedUsmanbhai [(1986) 3 SCC 20], wherein this Court gave widemeaning to “interest of general public” and observed as follows:(SCC p. 31, para 19)“19. The expression ‘in the interest of general public’ is ofEwide import comprehending public order, public health, publicsecurity, morals, economic welfare of the community and theobjects mentioned in Part IV of the Constitution.”

xxxx

55. The SNDT Report also shows that only 17.40% of the barFgirls are from the State of Maharashtra. The bar owners havebeen exploiting the girls by sharing the tips received and alsocapitalising on their performance to serve liquor and improve thesales and business. Again reliance is placed on the observationsmade in PRAYASReport at p. 47 which is as under:

“The women working as either dancers or waiters were notpaid any salary, but were dependent on tips given by customersin the bar, which varies from day to day and from women toanother. This money is often shared with the bar owner as pera fixed ratio ranging from 30 to 60%.”

59. It was next submitted that the High Court wrongly concludedthat the activity of young girls/women being introduced as bardancers is not res extra commercium. Such activity by the younggirls is dehumanising process. In any event, trafficking the girlsinto bar dancing completely lacks the element of conscious selectionof profession. An activity which has harmful effects on the societycannot be classified as profession or trade for protection underArticle 19(1)(g) of the Constitution. Such dances which areobscene and immoral would have to be considered as an activitywhich is res extra commercium. The High Court has wronglyconcluded otherwise. Reliance is also placed on the observationsmade by this Court in State of Bombay v. R.M.D.Chamarbaugwala [AIR 1957 SC 699] . In that case, it wasobserved by this Court that activity of gambling could not be raisedto the status of trade, commerce or intercourse and to be madesubject-matter of fundamental right guaranteed by Article19(1)(g).

xxxxxx

72. The same principle was reiterated by this Court in State ofBihar v. Bihar Distillery Ltd. [(1997) 2 SCC 453] in the followingwords: (SCC p. 466, para 17)

“17. … The approach of the court, while examining thechallenge to the constitutionality of an enactment, is to startwith the presumption of constitutionality. The court should tryto sustain its validity to the extent possible. It should strikedown the enactment only when it is not possible to sustain it.The court should not approach the enactment with view topick holes or to search for defects of drafting, much lessinexactitude of language employed. Indeed, any such defectsof drafting should be ironed out as part of attempt to sustainthe validity/constitutionality of the enactment. After all, an Actmade by the legislature represents the will of the people andthat cannot be lightly interfered with. The unconstitutionalitymust be plainly and clearly established before an enactment isdeclared as void.”

85. Mr Rohatgi submits that the impugned legislation has achievedthe opposite result. Instead of creating fresh job opportunities forwomen it takes away whatever job opportunities are alreadyavailable to them. He emphasised that the ban also has an adversesocial impact. The loss of livelihood of bar dancers has put themin very precarious situation to earn the livelihood. Mr Rohatgisubmitted that the dancers merely imitate the dance steps andmovements of Hindi movie actresses. They wear traditional clothessuch as ghagra cholis, sarees and salwar kameez. On the otherhand, the actresses in movies wear revealing clothes: shorts,swimming costumes and revealing dresses. Reverting to thereliance placed by the appellants on the PRAYAS Report andShubhada Chaukar Report, Mr Rohatgi submitted that both thereports are of no value, especially in the case of PRAYAS Reportwhich is based on interviews conducted with only few girls. TheSNDT Report actually indicates that there is no organised racketthat brings women to the dance bars. The girls’ interview, in fact,indicated that they came to the dance bars through family,community, neighbours and street knowledge. Therefore, accordingto Mr Rohatgi, the allegations with regard to trafficking to thedance bars by middlemen are without any basis. Most of the girlswho performed dance are generally illiterate and do not have anyformal education. They also do not have any training or skills indancing. This clearly rendered them virtually unemployable in anyother job. He, therefore, submits that the SNDT Report iscontradictory to the PRAYAS Report. Thus, the State had no reliabledata on the basis of which the impugned legislation was enacted.”

F25. Adverting specifically to those provisions of the Act and theRules which have been challenged as unconstitutional, Mr. Bhushansubmitted that insofar as Section 2(8)(i) is concerned, the definition of‘obscene dance’ contained therein is totally vague. He argued that thisdefinition of ‘obscene dance’ includes ‘a dance which is designed onlyto arouse the prurient interest of the audience’, which was totallyGloose expression incapable of any precise meaning.

26. It was submitted that such definition was susceptible tovarious perceptions depending upon the subjective opinion of theconcerned persons and, therefore, different persons may reach differentconclusions after seeing the same dance performance. According toH

Mr. Bhushan, when obscene dance is made as an offence under theAct, vague definition of this term was anathema to the principles ofcriminology and was opposed to the rule of law.

27. Another provision, validity whereof is questioned on thepremise that the same is arbitrary and violative of Article 14 of theConstitution, is Section 6(4) of the Act. This provision bars the grant oflicence under the Act in respect of place where licence for discothequeor orchestra is granted. Conversely, it also prohibits grant of licence fordiscotheque or orchestra where licence under this Act is granted. Simplyput, the purport behind this provision is to see that in respect of particularplace either licence is granted for dance bars or for discotheque andorchestra and there would not be licence for place, both for dancebars and discotheque or orchestra, at the same time. It was submittedthat there was no rational behind such provision based on intelligibledifferentia. Reference was made to the judgment in M.P. AIT PermitOwners Assn. and Another v. State of M.P.[2], which was relied upon inthe subsequent judgment in Engineering Kamgar Union v. ElectroSteels Castings Ltd. and Another[3] wherein it was held as under:“21. The Central Act and the State Act indisputably cover thesame field. The jurisdiction of the State Legislature to enact lawby parliamentary legislation is not impermissible. Subject to theprovisions contained in Article 254 of the Constitution of India,both will operate in their respective fields. The constitutionalscheme in this behalf is absolutely clear and unambiguous. In thiscase, this Court is not concerned with the conflicting legislationsoperating in the same field by reason of enactments made byParliament and the State in exercise of their respective legislativepowers contained in List I and List II of the Seventh Schedule ofthe Constitution of India but admittedly the field being the same, aquestion would arise as regards the effect of one Act over theother in the event it is found that there exists conflict. For thesaid purpose, it is not necessary that the conflict would be directonly in case wherein the provisions of one Act would have to bedisobeyed if the provisions of the other are followed. The conflictmay exist even where both the laws lead to different legal results.

2 (2004) 1 SCC 320

3 (2004) 6 SCC 36

412SUPREME COURT REPORTS

A24. The judgments of this Court clearly lay down the law to theeffect that if two Acts produce two different legal results, conflictwill arise.

28. He further submitted that for contravening the provisions ofSection 6(4) of the Act, the punishment provided under Section 8(2) ofBthe Act was imprisonment for term which may extend to three yearsor fine which may extend to Rs.10 lakhs or both. This, according to him,

was impermissible inasmuch as such an act, namely, obscene dance,would amount to obscenity which is made an offence under Section 294of the Indian Penal Code (IPC) and that offence is punishable withimprisonment which may extend to three months. He, thus, argued thatCsuch provision was not only arbitrary and violative of Article 14, therewas clear conflict between the central law (i.e. the IPC) and the StateAct (the impugned Act). According to him, in such an eventuality, it isthe central law which has to prevail and, therefore, Section 8(2) of theAct needed to be struck down on this ground.

29. Adverting to the challenge in respect of Section 8(4) of theAct, he submitted that this provision makes throwing or showering coins,currency notes or any article or any thing which can be monetised onthe stage or handing over personally such things, etc. to dancer is alsomade an offence under this provision, which again suffers from the viceEof arbitrariness. He submitted that in the first instance such prohibitionis only qua the dancers and not singers or waitresses. Contention wasthat giving such things to dancer only amounts to tipping her onappreciation of her performance which was the same thing asappreciating singer for her performance or waitress for her serviceand there was absolutely nothing wrong about it and such an act cannotFbe made an offence. It was, according to him, manifestly arbitrary andviolative of Article 14. The learned senior counsel relied upon thefollowing averments in Nikesh Tarachand Shah v. Union of Indiaand Another[4]:

“23. Insofar as “manifest arbitrariness” is concerned, it is importantGto advert to the majority judgment of this Court in Shayara Banov. Union of India [Shayara Bano v. Union of India, (2017) 9SCC 1 : (2017) 4 SCC (Civ) 277] . The majority, in an exhaustivereview of case law under Article 14, which dealt with legislation

4 (2018) 11 SCC 1H

being struck down on the ground that it is manifestly arbitrary, hasobserved: (SCC pp. 91-92 & 99, paras 87 & 101)

“87. The thread of reasonableness runs through the entirefundamental rights chapter. What is manifestly arbitrary isobviously unreasonable and being contrary to the rule of law,would violate Article 14. Further, there is an apparentcontradiction in the three-Judge Bench decision in McDowell[State of A.P. v. McDowell & Co., (1996) 3 SCC 709] whenit is said that constitutional challenge can succeed on theground that law is “disproportionate, excessive orunreasonable”, yet such challenge would fail on the very groundof the law being “unreasonable, unnecessary or unwarranted”.The arbitrariness doctrine when applied to legislation obviouslywould not involve the latter challenge but would only involve alaw being disproportionate, excessive or otherwise beingmanifestly unreasonable. All the aforesaid grounds, therefore,do not seek to differentiate between State action in its variousforms, all of which are interdicted if they fall foul of thefundamental rights guaranteed to persons and citizens in PartIII of the Constitution.

xxxx

101. It will be noticed that Constitution Bench of this Courtin Indian Express Newspapers (Bombay) (P) Ltd. v. Unionof India [Indian Express Newspapers (Bombay) (P) Ltd. v.Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121]stated that it was settled law that subordinate legislation canbe challenged on any of the grounds available for challengeagainst plenary legislation. This being the case, there is norational distinction between the two types of legislation whenit comes to this ground of challenge under Article 14. The testof manifest arbitrariness, therefore, as laid down in theaforesaid judgments would apply to invalidate legislation aswell as subordinate legislation under Article 14. Manifestarbitrariness, therefore, must be something done by thelegislature capriciously, irrationally and/or without adequatedetermining principle. Also, when something is done which isexcessive and disproportionate, such legislation would be

manifestly arbitrary. We are, therefore, of the view thatarbitrariness in the sense of manifest arbitrariness as pointedout by us above would apply to negate legislation as well underArticle 14.”

This view of the law by two learned Judges of this Court wasconcurred with by Kurian, J. in para 5 of his judgment.

24. Article 21 is the Ark of the Covenant so far as theFundamental Rights Chapter of the Constitution is concerned.It deals with nothing less sacrosanct than the rights of life andpersonal liberty of the citizens of India and other persons. It isthe only article in the Fundamental Rights Chapter (along withArticle 20) that cannot be suspended even in an emergency[see Article 359(1) of the Constitution]. At present, Article 21is the repository of vast number of substantive and proceduralrights post Maneka Gandhi v. Union of India [ManekaGandhi v. Union of India, (1978) 1 SCC 248]. Thus, in RajeshKumar [Rajesh Kumar v. State, (2011) 13 SCC 706 : (2012) 2SCC (Cri) 836] at pp. 724-26, this Court held: (SCC paras 56-63)

“56. Article 21 as enacted in our Constitution reads as under:

‘21. Protection of life and personal liberty.—No personshall be deprived of his life or personal liberty exceptaccording to procedure established by law.’

57. But this Court in Bachan Singh [Bachan Singh v. Stateof Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] heldthat in view of the expanded interpretation of Article 21 inManeka Gandhi [Maneka Gandhi v. Union of India,(1978) 1 SCC 248] , it should read as follows: (Bachan Singhcase [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] , SCC p. 730, para 136)

‘136. … “No person shall be deprived of his life or personalliberty except according to fair, just and reasonable procedureestablished by valid law.”

In the converse positive form, the expanded article will readas below:

“A person may be deprived of his life or personal liberty inaccordance with fair, just and reasonable procedureestablished by valid law.” ’

58. This epoch-making decision in Maneka Gandhi[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]has substantially infused the concept of due process in ourconstitutional jurisprudence whenever the court has to dealwith question affecting life and liberty of citizens or even aperson. Krishna Iyer, J. giving concurring opinion inManeka Gandhi [Maneka Gandhi v. Union of India,(1978) 1 SCC 248] elaborated, in his inimitable style, thetransition from the phase of the rule of law to due process oflaw. The relevant statement of law given by the learned Judgeis quoted below: (SCC p. 337, para 81)

‘81. … “Procedure established by law”, with its lethalpotentiality, will reduce life and liberty to precarious playthingif we do not ex necessitate import into those weighty wordsan adjectival rule of law, civilised in its soul, fair in its heartand fixing those imperatives of procedural protection absentwhich the processual tail will wag the substantive head. Canthe sacred essence of the human right to secure which thestruggle for liberation, with “do or die” patriotism, waslaunched be sapped by formalistic and pharisaic prescriptions,regardless of essential standards? An enacted apparition isa constitutional illusion. Processual justice is writ patently onArticle 21. It is too grave to be circumvented by blackletter ritual processed through the legislature.’

59. Immediately after the decision in Maneka Gandhi[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]another Constitution Bench of this Court rendered decisionin Sunil Batra v. State (UT of Delhi) [Sunil Batra v. State(UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155]specifically acknowledged that even though clause like theEighth Amendment of the United States Constitution andconcept of “due process” of the American Constitution isnot enacted in our Constitution text, but after the decision ofthis Court in Rustom Cavasjee Cooper [Rustom CavasjeeCooper v. Union of India, (1970) 1 SCC 248] and Maneka

Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC248] the consequences are the same. The Constitution Benchof this Court in Sunil Batra [Sunil Batra v. State (UT ofDelhi), (1978) 4 SCC 494 : 1979 SCC (Cri) 155] speakingthrough Krishna Iyer, J. held: (Sunil Batra case [Sunil Batrav. State (UT of Delhi), (1978) 4 SCC 494 : 1979 SCC (Cri)155] , SCC p. 518, para 52)

‘52. True, our Constitution has no “due process” clause orthe Eighth Amendment; but, in this branch of law, afterCooper [Rustom Cavasjee Cooper v. Union of India,(1970) 1 SCC 248] and Maneka Gandhi [Maneka Gandhiv. Union of India, (1978) 1 SCC 248] , the consequence isthe same.’

60. The Eighth Amendment (1791) to the Constitution of theUnited States virtually emanated from the English Bill ofRights (1689). The text of the Eighth Amendment reads,“excessive bail shall not be required, nor excessive finesimposed, nor cruel and unusual punishments inflicted”. TheEnglish Bill of Rights drafted century ago postulates, “Thatexcessive bail ought not to be required, nor excessive finesimposed, nor cruel and unusual punishments inflicted”.

61. Our Constitution does not have similar provision butafter the decision of this Court in Maneka Gandhi case[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]jurisprudentially the position is virtually the same and thefundamental respect for human dignity underlying the EighthAmendment has been read into our jurisprudence.

62. Until the decision was rendered in Maneka Gandhi[Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ,Article 21 was viewed by this Court as rarely embodyingthe Diceyian concept of the rule of law that no one can bedeprived of his personal liberty by an executive actionunsupported by law. If there was law which provided somesort of procedure it was enough to deprive person of hislife or personal liberty. In this connection, if we refer to theexample given by S.R. Das, J. in his judgment in A.K.Gopalan [A.K. Gopalan v. State of Madras, AIR 1950SC 27 : (1950) 51 Cri LJ 1383] that if the law provided the

Bishop of Rochester “be boiled in oil” it would be valid underArticle 21. But after the decision in Maneka Gandhi[Maneka Gandhi v. Union of India, (1978) 1 SCC 248]which marks watershed in the development of constitutionallaw in our country, this Court, for the first time, took theview that Article 21 affords protection not only against theexecutive action but also against the legislation which deprivesa person of his life and personal liberty unless the law fordeprivation is reasonable, just and fair. And it was held thatthe concept of reasonableness runs like golden threadthrough the entire fabric of the Constitution and it is notenough for the law to provide some semblance of aprocedure. The procedure for depriving person of his lifeand personal liberty must be eminently just, reasonable andfair and if challenged before the court it is for the court todetermine whether such procedure is reasonable, just andfair and if the court finds that it is not so, the court will strikedown the same.

63. Therefore, “law” as interpreted under Article 21 by thisCourt is more than mere “lex”. It implies due process, bothprocedurally and substantively.”

25. Given the parameters of judicial review of legislation laid downin these judgments, we have to see whether Section 45 can passconstitutional muster.”

His further submission relating to this provision was that it waseven violative of Article 19(1)(g) of the Constitution inasmuch as fordancers, singers, waitresses, etc., tips are th major part of their earningswhich was sought to be taken away by this provision.

30. Attacking the validity of Rule 3 of the Rules, he submitted thatCondition No.2 contained in Part of the Schedule attached to theseRules is contrary to the judgment in Indian Hotel and RestaurantsAssociation (1). He also submitted that distance of 1 k.m. of suchdance bars from the educational and religious institutions, as stipulatedin Condition No.11 of Part of the Schedule, was illogical andimpractical. According to him, it was, in fact, an impossible condition tobe fulfilled in congested city like Mumbai where educational andreligious institutions existed within 1 k.m. from each and every building.

AHe pointed out that for the Bars under liquor Rules, distance prescribedis 75 mts., which was reasonable and valid provision and could beincorporated here as well.

31. Insofar as Condition No.2 contained in Part of the Scheduleis concerned, it is challenged on the ground that under the guise of thisBcondition the respondent wanted that employment of the bar dancers inthe said bars becomes imperative. This was violative of Article 19(1)(g)of the Constitution, both for the owners as well as for such womendancers and waitresses, as it was taking away the freedom of theseperformers to work on contract basis if they so wanted.

C32. As far as Condition No.6 relating to giving of tips is concerned(which goes along with Condition No. 11 of Part A), argument is that theState cannot impose condition that such an amount has to be necessarilyadded in the bill.

33. Timings of the dance bars from 6:00 p.m. to 11:30 p.m. stipulatedDin Condition No. 9 of Part is challenged on the ground that it does notserve any purpose. Moreover, discotheque or orchestra and liquor barsare allowed to be open till 01:30 a.m.

34. Similarly, argued the petitioners, Condition No.12 which prohibitsserving alcoholic beverages in the dance bars is irrational.

E35. Validity of Condition No.16 read with Rule 3(iii) is challengedon the ground that such condition is again vague in nature inasmuch asthe expression ‘good character’ and ‘criminal record in the past’ are notcapable of any precise definition. He submitted that till the time there isno conviction, there cannot be any bar on the employment of person.Further, even if there is conviction, the bar should be attached only inFthose cases where conviction is for serious offence.

36. Condition No.17 of Part to the Schedule which prohibitsany modification or alteration in the premises without the permission ofthe licensing authority is questioned as arbitrary. Attention of the Courtwas drawn to the order dated March 02, 2016 passed in Writ PetitionG(Civil) No. 793 of 2014, which reads as under:

“On the last occasion, the Court had noted 7 (seven) conditionswhich had been taken exception to by Mr. Jayant Bhushan, learnedsenior counsel appearing for the petitioners. The exceptions relateto condition nos.1, 2, 5, 10, 12 and 15.

Condition no.1 reads as follows :

“1) This licence is valid for only one stage of 10 ft. x 12 ft. insize in restaurant area as per approved plan of the excisedepartment for F.L.-III with non-transparent partition betweenrestaurant and permit room area.”

It is submitted by Ms. Pinky Anand, learned AdditionalSolicitor General on the basis of the affidavit that as per theapproved plan of the Excise Department for permit rooms withFL-III licence, there is always necessity for providing non-transparent partition between the restaurant and the permit roomarea. It is urged by her that the intention of the Excise Departmentbehind incorporation of the said condition is to keep the permitroom area separate from the restaurant area where alcohol is notserved. Be it noted, the said condition has been modified to thefollowing extent :

“This licence is valid for only one stage of 10 ft. x 12 ft. size inrestaurant area/permit room as per approved plan of the ExciseDepartment for F.L.-III with non transparent partition betweenrestaurant and permit room area.”

The said condition is accepted by the petitioners and,therefore, we shall not dwell upon the same.

As far as the condition no.2 is concerned, it reads asfollows:

“2) The stage should cover from all sides by non removablepartition of 3 ft. height.”

In the affidavit filed by the State, the said condition hasbeen modified as follows :

“(2) There shall be railing of 3 ft. height adjacent to thedance stage. There should be distance of 5 ft. between therailing and seats for the customers. In respect of dance barswhich have secured licenses earlier, provisions mentionedabove be made binding. It should be made binding on dancebars seeking new licenses to have railing of 3 ft. height adjacentto the stage and leaving distance of 5 ft between the railingand sitting arrangement for customers.”

Mr. Bhushan, learned senior counsel would submit thatregard being had to the suggestions noted in State of Maharashtra& Anr. vs. Indian Hotel and Restaurants Association & Ors.[(2013) 8 SCC 519, the railing of 3 ft. height can be put in praesentisubject to the further arguments to be canvassed at later stagebut there cannot be non-removable partition. Having heard learnedcounsel for the parties, we accept the submission of Mr.Bhushan, learned senior counsel and direct that thereshould be railing of 3 ft. height and not the non-removablepartition. The railing is meant for creating barrier betweenthe performers and the audience.

Condition No.5 is to the following effect :

“5) The licensee is permitted to keep only 04 dancers/artists toremain present on the permitted stage.”

It is submitted by Mr. Bhushan that he has no objectionto the said condition but it may be clarified that other artists canremain present in the premises to which there is no objection bylearned Additional Solicitor General. Hence, we clarify that fourdancers can perform on the stage at one time but there can beother artists at other places inside the premises.

Condition no.10 reads as follows :

“10) The Licensee shall ensure that the character andantecedents of all employees is verified by the police.”

Though there is no suggestion in the affidavit as regardsthe said condition, it is submitted by Mr. Bhushan, learned seniorcounsel, that it has to be restricted to criminal antecedents. Weagree with the same. Any employee who is engaged, his/hercriminal antecedents are to be verified. It is imperative.

Condition No.11 reads as follows :

“11) The Licensee shall not allow any addition or alternation tobe made to the premises except without the written permissionof the Competent Authority i.e. DCP (HQ-I) for Mumbai orconcerned DCP/SP for other areas.”

The aforesaid condition is modified to the extentthat the premises shall not be altered/modified without the

permission of the competent authority under the statute.However, it is hereby directed that if there will be anygrievance on this score, the parties are at liberty to approachthis Court.

Condition no. 12 reads as follows :

“12) The Licensee shall ensure that no concealed cavity or aroom is created within the premises in order to concealperformers/staff.”

Mr. Bhushan, learned senior counsel submitted that hehas no objection to the said condition but there should be roomwhich can be utilised as green room. We so direct. Be it clarified,green room means green room in the manner in which it isunderstood in the classical sense.

Condition no. 15 on which the parties are at real cavil reads asfollows :

“15)The Licensee shall ensure that adequate number of CCTVcameras which will live feed continuously to police control roombe installed to cover the entire premises which will record theentire daily performance and the same will be monitored by aspecially appointed person on monitor/display. The dailyrecording of performance of last 30 days would preserved andwill be made available to any competent authority as and whenrequired for viewing.”

Having heard learned counsel for the parties, Dr. RajeevDhawan, learned senior counsel, who sought permission to file anapplication for intervention and Mr. Sandeep Deshmukh, learnedcounsel for the 5th respondent, we are inclined to modify the saidcondition to the extent that CCTV cameras shall be fixed atthe entrance of the premises in question but shall not befixed in the restaurant or the permit area or the performancearea.

As we have clarified the conditions, the modifiedconditions along with conditions on which there is no cavil shall becomplied with within three days and the respondents shall issuethe licences within ten days therefrom. We are sure, the authoritiesshall act in accordance with the command of this Court and notventure to deviate.

ALet the matter be listed after two weeks.

Liberty to mention.”

37. Condition No.20 was also challenged on the same groundreferring to the same order dated March 02, 2016.

B38. In addition, it was argued that requirement for having CCTVcameras at such places will have chilling effect, which was also violativeof the right to privacy that is now declared as fundamental right in K.S.Puttaswamy and Another v. Union of India and Others[5].

39. Mr. Nikhil Nayyar, learned counsel appearing for the writCpetitioner in Writ Petition (Civil) No. 119 of 2017, submitted that thepetitioner Union, namely, Bharatiya Bar Girls Union comprises of womenartists and talented professionals (collectively to be called as ‘womenperformers’) working in varied roles such as dancers, singers orwaitresses in bars, restaurants, beer rooms, etc. (collectively referred toas ‘dance bars’). It has 5000 members who were working in suchDestablishments in the State of Maharashtra alone. However, after theimposition of ban for prolonged period, which has resulted in renderingthese women performers unemployed, the membership has shrunk to110 women performers. He submitted that many have sought alternativeemployment and even migrated to other parts of the country and manyEare living under the conditions of extreme penury as they are facingunemployment. He argued that the members of the petitioner unionhave voluntarily embraced professional dancing at dance bars (i) entirelyout of free will and choice; (ii) to earn livelihood; and (iii) personalautonomy and dignity. The existing literature and empirical studies haveidentified the women’s desire to lead an independent and self-sustainingFlife as the primary motivation to work in dance bars. For many, theopportunity to work in dance bars have allowed them to break-awayfrom stigmatic hereditary or caste profession. Some of the key findingsof these studies are as follows:

(i) Nearly 82.6% of women performers (out of the sample size ofG500) surveyed in Mumbai were migrants, and forced to leave their homesdue to ‘poverty and destitution’ and for ‘seeking better life for themselvesand their dependents’[6].

5 (2017) 10 SCC 1

6 See Feminist Contributions from the Margins: Shifting Conceptions of Work andPerformance of the Bar Dancers of Mumbai XLV Econ. & Pol. Weekly (48) 2010H

(ii) Another study found that 42% of women dancers (out of 800)were the only breadwinners in their family. Most of them lacked basiceducation or technical skills. Some of them were previously engaged insex work, but turned towards dance bars to lead dignified life withsafer working conditions[7].

(iii) Another ethnographic study has shown that vast majority ofwomen performers worked in exploitative or constricted environment(viz., rag pickers, domestic helpers, etc.,). Many performers alsobelonged to marginalized and traditional dancing communities (viz., Bedia,Deredar, Kanjhar, Nat, Rajnat, etc.,) and other societies that have had ahistory of ‘alternate’ sexual morality[8].

40. As with other professional artistes, and until the year 2004,the women performers have had complete freedom to choose whichbars or restaurants to perform; day, time or duration of their performance;and had the bargaining capacity to negotiate remuneration with barowners. In other words, the women performers were never the‘employees’ of such establishments – either by virtue of contract orunder statutory provision. As matter of fact, many women performersdo not expect any or adequate compensation from bar owners as it hasbeen customary for performers to accept tips or rewards from patronsoffered as token of appreciation for their performance. This decades’old practice is akin to customary practices of Mujras, Lavani (traditionalMarathi song and dance) or Tamasha (traditional Marathi theatre) whoearn their living in the form of Bakshisi offered by audiences. The saidpractice is still widely prevalent across the country.

41. Adverting to the secondary effects and colonial-era stigma,Mr. Nayyar pointed out that the dramatic performances in dance barsoften imitate Bollywood performances or the ‘mainstream’ culture –both in form and character. However, the State Government has vieweddance bars an innately vulgar, undesirable, and as threatening the moralfabric of the society. The State’s perception is premised on popularbeliefs and public sentiment associated with art and entertainment.

42. The reason for the oppressive and moralistic attitude againstdance bars takes root from patriarchal view that women “engaging in

7 See RCWS (SNDT University, Mumbai), ‘Working Women in Mumbai Bars: Truthsbehind the controversy’ (Jul’ 2005); RCWS (SNDT University, Mumbai), ‘After theBan – Women Working in Dance Bars’ (Dec’ 2006)

8 See Dalwai, Sameena, ‘Performing caste: the ban on bar dancing in Mumbai’ KeeleUniversity (2012)

Aany kind of work or profession outside the home or domestic sphere’carried ‘low societal status’. Anna Morcom, noted scholar, arguesthat the societal views on ‘bar girls’ bear close resemblance to oppressivetreatment meted out to traditional dancing communities (Devadasis,courtesans, nautch, etc.,) during British-era[9].

B43. Insofar as challenge to the Act and Rules is concerned, thispetition challenges some of the provisions which are also the subjectmatter of challenge in Writ Petition (Civil) No. 576 of 2016, on which wehave noted the arguments of Mr. Jayant Bhushan, learned senior counsel.Adopting those arguments, Mr. Nayyar also made some additionalsubmissions which are as under:C

In the first place, the learned counsel took support of the legalprinciples settled in the judgment of this Court in Indian Hotel andRestaurants Association (1). He argued that in that case the Courtconsidered the rational offered by the State Government threadbare andfound no basis or justification for imposition of prohibition.

44. He submitted that the present Act and rules were nothing butold wine in new bottle with same kind of provisions which have alreadybeen struck down in Indian Hotel and Restaurants Association (1).In addition, the argument of Mr. Nayyar was that the moral anxiety andthe reasons advanced by the State Government for introducing thelegislation are entirely irrational and without demonstrable proof orEevidence. Illustratively:

(I) Social Profile of Bar girls: It has been claimed that bar girlsare usually minors or victims of trafficking or prostitution and other formsof flesh trade. However, the State Government has failed to produceany material – be it crime statistics or any other studies – in support. OnFthe other hand, few available historical literature and research studieson bar dances suggest diagonally opposite point of view. studyconducted by SNDT University, for instance, found that many womenperformers took up dancing to rehabilitate themselves from exploitativeflesh trade. All the above social factors clearly suggest that the bar girlsGhave voluntarily embraced dance bars to live with dignity and earn theirlivelihood. Moreover, the available literature further noted dance barshave had positive externalities on the women performers as it openednewer opportunities and the option to leave exploitative sex work if theychose.

9 Anna Morcom, Courtesans, Bar Girls and Dancing Boys: Illicit Worlds of IndianHDance (Hachette India, 2014)

(ii) Non-obscene performances: In any event, this Court in IndianHotel and Restaurants Association (1) and several other High Courtspreviously had categorically held that the performances in dance barscannot be considered as ‘obscene’. The Bombay High Court in State ofMaharashtra v. Joyce Zee alias Temiko[10], dealing with cabaret shows,held as under:

“An adult person, who pays and attends cabaret show in hotelruns the risk of being annoyed by the obscenity or being entertainedby the very obscenities according to his taste. Even assumingthat such hotel where anyone can buy tickets is concernedto be public place, it cannot be held that the obscenityand annoyance which are punishable under S.294 of IPCare caused without the consent, express or implied, of suchadult person. Such person cannot complain in criminal courtof annoyance.”

(emphasis added)

This proposition has been reiterated and followed in Sadhna v.State[11] and Narendra H. Khurana v. Commissioner of Police[12]. Thus,it is evident that the impugned Act and Rules perpetuate myth thatdance bars pose any danger to law and order or cause disturbance topeace and tranquility.

(iii) Lack of Reliable Data: It is pertinent to note that there hasbeen complete prohibition on dance bars since 2005 across the Stateof Maharashtra. Therefore, the data purportedly relied upon by theState Government is not only negligible, if any, but also outdated. Bethat as it may, the very reasons proclaimed by the State Governmentcurrently have been considered and rejected by this Court in IndianHotel and Restaurants Association (1) for the lack of cogent evidence.Therefore, the belief of the State Government that the working womenin dance bars are involved in immoral activities such as prostitution, orthat minors are being employed, are entirely baseless and irrational.(iv) Conditions of work: The concerns of the State Governmentthat women dancers are subjected to unsafe and exploitative workingconditions is entirely false. Various studies indicate that many bar girlsfelt ‘greater security in the bars due to the support network among 10 (1973) ILR 1299 (Bom) 11 (1981) 19 DLT 210 12 (2004) 2 Mah LJ 72

Athe dancers as well as the protection provided by the owners’. Itwas further noted that the bar owners, on the demands made by bargirls, provides taxis and auto rickshaws for women travelling late atnight. Although bar girls worked under the constant gaze of bar owners,they are neither contractually employed nor subservient to them. Fewother performers have also expressed complete freedom to shift fromBone dance bar to another at their will. Therefore, the claims that thewomen performers are working under unsafe or exploitative conditionsare hugely exaggerated. Having said that, there is certainly gravenecessity to improve working conditions of bar girls. However, the samecan be achieved by strengthening the rights of thees women andCorganisations such as the petitioner-Union without the intervention fromstate apparatus.

(v) Social Vulnerabilities: The prolonged ban on dance bars hashad adverse effect on bar girls and women entertainers. After the ban,the RCWS & FAOW study pointed out that income of almost all womenDwas reduced to less than 50% of their original earnings, and at least 1/4th of the women found their income slashed by 90% of their originalearnings. At least 57.5% of the women reported having used all theirsavings in the form of jewellery, cash or property and at least 26% ofthese women have been forced to take additional loans, ranging betweenthe amounts of couple of thousands to lakhs. The study further pointedEthat the access to health care and education of dancers and their familieshas reduced drastically. Moreover, the lack of social security has resultedin sexual harassment and also driven women to take up exploitative sexwork. In this backdrop, and contrary to the stated objects, the increasedinterference by the State Government could further jeopardise theFlivelihood of women. This Court in Indian Hotel and RestaurantsAssociation (1) also expressed anguish as ban on dance bars ‘has provedto be totally counter-productive’ as many women performers were‘compelled to take up prostitution out of necessity for maintenanceof their families’.

G(vi) Res Extra Commercium: The State Government contendedthat the dancing – when mixed with alcohol – has the tendency to resultin unwelcomed or undesirable outcome. However, this Court in IndianHotel and Restaurants Association (1) dealt with similar argumentand observed that ‘we are not impressed with any of these submissions’as the submission was based on ‘unfounded presumption that womenHare being/were trafficked in the bars’.

According to him, the impugned Act has been enacted as aretaliatory measure to disenfranchise women from performing at dancebars at any cost. It is contended that the legislative declaration of factsand beliefs, as noted above, are patently false and entirely irrational anddevoid of any material.

45. He further submitted that onus was on the State to justifyfairness and reasonableness which is the principle of law laid down inthe case of Ram Krishna Dalmia v. Justice S.R. Tendolkar & Ors.[13],State of Maharashtra & Anr. v. Basantibai Mohanlal Khetan & Ors.[14]and M/s Laxmi Khandsari & Ors. v. State of U.P. & Ors.[15].

According to him, the State has not discharged this onus.

46. Mr. Nayyar also made detailed submissions on the standardsof ‘obscenity’ which prevail in this country as per the parameters laiddown in various judgments and the development of law on this subject.In this hue, he also argued that public policy or general public interestcannot be valid grounds to restrict freedom of speech under Article19(1)(a) of the Constitution. Neither majoritarian or societal notionsformed the basis to restrict such fundamental right. According to him,on the contrary, constitutional values of personal autonomy and individualchoices which have been held to be the facets of right to privacy, givingit the status of fundamental rights, had to be respected. His plea wasthat the impugned legislation and rules violate such rights as well.

47. Mr. Nayyar also, like Mr. Jayant Bhushan, touched uponspecific provisions of the Act and the Rules. On Section 2(8) of the Act,his submission was that it is provision which was utterly vague andcreates chilling effect; puts restrictions on dance which are excessiveand disproportionate; and suffers from rigidity, overbreadth and manifestarbitrariness. Insofar as Section 8(4) of the Act, which prohibits offeringtips by the customers to the performers is concerned, submission of Mr.Nayyar is that it is manifestly arbitrary and unreasonable inasmuch asthis provision infuses criminalisation into and otherwise benign or harmlessact and was contrary to well-recognised customary practice therebysuffering from manifest arbitrariness.

48. The learned counsel also laid attack on the legality of some ofthe licence conditions. His submission in this behalf was that the

13 (1959) SCR 279

14 (1986) 2 SCC 516 15 (1981) 2 SCC 600

AGrievance Redressal Committee constituted under Section 12 of theimpugned Act is highly inadequate and disproportionate. The compositionof the Committee, tasked with the duty to ensure proper conditions ofservice of women, does not contain any participation or representationof bar dancers in any manner. The composition of the Committee, asprovided by Rule 10, is restricted to Group ‘A’ officers. As it is theBworkplace of these women, it is imperative that they must be representedwhen an issue regarding their working condition is being decided.

49. Mr. Nayyar termed condition B(2) as disproportionate,excessive and ultra vires the intent and object of the impugned Act.The provisions adversely affect women dancers by (i) restricting theirCfreedom to move from one bar to another at their will, if the workconditions or the returns are not suitable; (ii) prohibit them from monetizingdances other than by way of receiving salary or shared tips. Moreimportantly, the State Government has failed to show any compellingpublic interest to curtail the choices of women performers.

D50. Conditions B(7) and B(8) are questioned on the premise thatwomen dancers are indirectly prohibited from receiving tips, rewards orremuneration offered by their patrons, is unreasonable, excessive,manifestly arbitrary and violates Articles 14 and 19 of the Constitution.The suggestion from the State Government that tips could be added toEthe bill or handed over to waiters is irrational.

51. Condition B(9) wherein the dance performances are restrictedto 6:00 pm to 11:30 pm is challenged as unreasonable and manifestlyarbitrary. It is irrational and manifestly arbitrary to prohibit dances after11:30 pm, when the establishments can be open until 01:30 am (nextFday) or 12:30 am (next day), as the case may be[16].

52. According to him, condition B(12) wherein the bar ownersare prohibited from serving of any alcoholic beverage at areas wheredances are staged is disproportionate and manifestly arbitrary. The StateGovernment has failed to provide any cogent material or demonstrateGany reasonable basis which warrants interference of this nature. Assuch, the restriction is excessive and disproportionate consider otherlicence conditions (distance, railing, green room, age restrictions, etc.,)to prevent any untoward incident.

16 See Notification (bearing MSA. 07/2016/C.R. 218/Lab-10) issued by the StateGovernment also placed on record before this Court in Writ Petition (Civil) No. 576 ofH2016.

53. Validity of Section B(20) wherein the mandate to install CCTVcameras to maintain complete surveillance and recording of activities insuch places is questioned as excessive, causes unwarranted invasion ofprivacy and violative of Articles 19(1)(a) and 21. In support, he referredto para 247(3) of K.S. Puttaswamy and Another wherein this Courtexamined the concept of ‘unpopular privacy’ - of which two facets areparticular relevant – viz. “(c) decisional privacy which protects the rightof citizens to make intimate choices about their rights from intrusion bythe State; (d) proprietary privacy which relates to the protection of one’sreputation.” Given the societal stigma associated with dance bars, themonitoring, recording, storage and retention of dance performancescauses unwarranted invasion of privacy and would even subject womenperformers to threat and blackmail. If the concerns are security, it canbe adequately met having at the entrance. Hence, the completesurveillance of activities inside the premises is excessive anddisproportionate.

54. Condition B(23) wherein the dance performances that maybe“expressive of any kind of obscenity, in any manner, even remotely” areprohibited is labelled by Mr. Nayyar as highly vague, excessive and createsa chilling effect on dancers.

55. Mr. Nayyar also supported his aforesaid arguments by citingvarious judgments which shall be taken note of and discussed at laterstage.

56. Rebuttal to the aforesaid arguments was given by Mr. Naphade,learned senior advocate, who appeared for the State of Maharashtraand supported by Ms. Pinky Anand, learned ASG who represented Unionof India.

57. Mr. Naphade opened his argument with the submission thatarbitrariness or unreasonableness are value judgments and any legislationon the aforesaid parameters is to be judged keeping in mind the ‘context’in which such legislation is passed. Adverting to the context of theimpugned Act, he referred to the preamble of the Act which stipulatesas under:

“An Act to provide for prohibition of obscene dance in hotels,restaurants, bar rooms and other establishments and to improvethe conditions of work, protect the dignity and safety of women insuch places with view to prevent their exploitation.”

A58. From the above, the learned senior counsel pointed out thatthe Act sought to achieve the following objectives:

(a) prohibit obscene dance in hotels, restaurants, bar rooms andother establishments;

(b) improve the conditions of work of women dancers and otherBwomen working therein; and

(c) protect the dignity as well as safety of such women.

59. He emphasised that moral structure of the Act flows from theaforesaid preamble. According to him, it could not be disputed by anybody,Cnor was it done by the petitioners, that the aforesaid objectives werelawful and in larger public interest, particularly in the interest of womenworking at such places. Proceeding on that basis, Mr. Naphade submittedthat insofar as controlling the activity through licensing is concerned, thesame is accepted by the petitioners as well. Section 3 of the Act whichmandates obtaining licence for starting hotel, restaurant, bar room orDany other place where dances are staged, has not been challenged. Thisis core of the Act. Further, there is no challenge to Section 14 whichgives power to the State Government to make rules in furtherance ofthe objectives i.e. to carry out the purpose of the Act. It was also notthe case of the petitioners that the impugned Act or Rules framedEthereunder were ultra vires and not within the competence of the Statelegislature insofar as the Act is concerned or the State Governmentinsofar as the Rules are concerned. In addition to Section 3 of the Actdealing with the licensing requirement, he referred to Section 6 of theAct which deals with eligibility criteria for grant of such licenses andsubmitted that the idea was to have stringent conditions to achieve theFpurpose behind the Act.60. With this introductory remarks, Mr. Naphade dealt withindividual provisions of the Act and the Rules in the following manner:

Section 2(8) of the Act which defines ‘obscene dance’ wasdefended by arguing that it is not vague or contains imprecise definitionGas it includes dance which is aimed at arousing the ‘prurient interest’of the audience and where that is the only purpose behind dance. Heargued that the expression ‘prurient interest’ has definite connotationin dictionary and this expression finds presence in Section 292 of theIPC as well which makes obscenity as an offence. Therefore, arguedH

the learned senior counsel, it confirms to judicially manageable standards.Further submission in this behalf was that, no doubt, standards of moralityhave changed over period of time, however, the moot question is, whereto draw the line. This has to be left to the legislature. In the presentcase, legislature in its wisdom has considered particular types of dancesas obscene which in the wisdom of legislature is the reasonable standardof obscenity. He also argued that the very test of “reasonableness” isfluid and, therefore, it is situation centric. Since, the Act aims atprohibiting obscene dance, the standard of obscenity has to be lookedinto from that perspective in mind. He relied upon the judgment in thecase of Ranjit D. Udeshi v. State of Maharashtra[17] where the term‘obscene’ has been construed by the Court in the following manner:“8. Speaking in terms of the Constitution it can hardly be claimedthat obscenity which is offensive to modesty or decency is withinthe constitutional protection given to free speech or expression,because the article dealing with the right itself excludes it. Thatcherished right on which our democracy rests is meant for theexpression of free opinions to change political or social conditionsor for the advancement of human knowledge. This freedom issubject to reasonable restrictions which may be thought necessaryin the interest of the general public and one such is the interest ofpublic decency and morality. Section 292 of the Indian Penal Codemanifestly embodies such restriction because the law againstobscenity, of course, correctly understood and applied, seeks nomore than to promote public decency and morality. The wordobscenity is really not vague because it is word which is wellunderstood even if persons differ in their attitude to what is obsceneand what is not. Lawrence thought James Joyce’s Ulysees to bean obscene book deserving suppression but it was legalised andhe considered Jane Eyre to be pornographic but very few peoplewill agree with him.

9. The former he thought so because it dealt with the excretoryfunctions and the latter because it dealt with sex repression. (SeeSex, Literaturet Censorship pp. 26, 201). Condemnation ofobscenity depends as much upon the mores of the people as uponthe individual. It is always question of degree or as the lawyersare accustomed to say, of where the line is to be drawn. It is,

17 (1965) 1 SCR 65

however, clear that obscenity by itself has extremely poor valuein the propagation of ideas, opinions and informations of publicinterest or profit. When there is propagation of ideas, opinionsand photographs collected in book form without the medical textwould may become different because then the interest of societymay tilt the scales in favour of free speech and expression. It isthus that books on medical science with intimate illustrations andphotographs, though in sense immodest, are not considered tobe obscene but the same illustrations and photographs collectedin book form without the medical text would certainly beconsidered to be obscene. Section 292 of the Indian Penal Codedeals with obscenity in this sense and cannot thus be said to beinvalid in view of the second clause of Article 19. The next questionis when can an object be said to be obscene?

28. This is where the law comes in. The law seeks to protect notthose who can protect themselves but those whose prurient mindstake delight and secret sexual pleasure from erotic writings. Nodoubt this is treating with sex by an artist and hence there is somepoetry even in the ugliness of sex. But as Judge Hand said obscenityis function of many variables. If by series of descriptions ofsexual encounters described in language which cannot be morecandid, some social good might result to us there would be roomfor considering the book. But there is no other attraction in thebook. As, J.B. Priestley said, “Very foolishly he tried to philosophizeupon instead of merely describing these orgiastic impulses: he isthe poet of world in rut, and lately he has become its prophet,with unfortunate results in his fiction. [The English Novel, p. 142(Nelson)]. The expurgated copy is available but the people whowould buy the un-expurgated copy do not care for it. Perhaps thereason is as was summed up by Middleton Murray:

“Regarded objectively, it is wearisome and oppressive book;the work of weary and hopeless man. It is remarkable, indeednotorious for its deliberate use or unprintable words.”

“The whole book really consists of detailed descriptions of theirsexual fulfilment. They are not offensive, sometimes verybeautiful, but on the whole strangely wearisome. The sexual

atmosphere is suffocating. Beyond this sexual atmosphere thereis nothing, nothing,” [Son of Women (Jonathan Cape)].

No doubt Murray says that in very little while and on repeatedreadings the mind becomes accustomed to them but he says thatthe value of the book then diminishes and it leaves no permanentimpression. The poetry and music which Lawrence attempted toput into sex apparently cannot sustain it long and without them thebook is nothing. The promptings of the unconscious particularly inthe region of sex is suggested as the message in the book. But itis not easy for the ordinary reader to find it. The Machine Ageand its impact on social life which is its secondary theme does notinterest the reader for whose protection, as we said, the law hasbeen framed.”

61. Mr. Naphade submitted that this position has not undergoneany change by the judgments of this Court rendered thereafter. Thus,the test to be applied is as to whether particular dance performancehas tendency to deprave and corrupt by immoral influences. Accordingto him, in given case, this test/standard can always be applied by theCourt to determine whether particular dance performance is obsceneor not. Mr. Naphade also relied upon the judgment in the case of PawanKumar v. State of Haryana & Anr.[18] where the expression ‘moralturpitude’ is defined by judiciary fixing standards of morality by linking itwith obscenity and it comes from the societal norms and thinking aboutthe same, which is highlighted in the following passage from that judgment:

“12. “Moral turpitude” is an expression which is used in legal asalso societal parlance to describe conduct which is inherently base,vile, depraved or having any connection showing depravity. TheGovernment of Haryana while considering the question ofrehabilitation of ex-convicts took policy decision on 2-2-1973(Annexure in the Paper-book), accepting the recommendationsof the Government of India, that ex-convicts who were convictedfor offences involving moral turpitude should not however be takenin government service. list of offences which were consideredinvolving moral turpitude was prepared for information andguidance in that connection. Significantly Section 294 IPC is notfound enlisted in the list of offences constituting moral turpitude.Later, on further consideration, the Government of Haryana on 18 (1996) 4 SCC 17

A17/26-3-1975 explained the policy decision of 2-2-1973 and decidedto modify the earlier decision by streamlining determination ofmoral turpitude as follows:

“… The following terms should ordinarily be applied in judgingwhether certain offence involves moral turpitude or not;

(1) whether the act leading to conviction was such as couldshock the moral conscience of society in general.

(2) whether the motive which led to the act was base one.

(3) whether on account of the act having been committed theperpetrator could be considered to be of depraved characteror person who was to be looked down upon by the society.

Decision in each case will, however, depend on thecircumstances of the case and the competent authority has toexercise its discretion while taking decision in accordanceDwith the above-mentioned principles. list of offences whichinvolve moral turpitude is enclosed for your information andguidance. This list, however, cannot be said to be exhaustiveand there might be offences which are not included in it butwhich in certain situations and circumstances may involve moralturpitude.”

Section 294 IPC still remains out of the list. Thus the convictionof the appellant under Section 294 IPC on its own would not involvemoral turpitude depriving him of the opportunity to serve the Stateunless the facts and circumstances, which led to the conviction,met the requirements of the policy decision above-quoted.”

F62. Mr. Naphade also banked upon the following discussion inDirector General, Directorate General of Doordarshan & Ors. v.Anand Patwardhan & Anr.[19]:

“22. One of the most controversial issues is balancing the need toprotect society against the potential harm that may flow fromGobscene material, and the need to ensure respect for freedom ofexpression and to preserve free flow of information and ideas.The Constitution guarantees freedom of expression but in Article19(2) it also makes it clear that the State may impose reasonablerestriction in the interest of public decency and morality.H 19 (2006) 8 SCC 433

23. The crucial question therefore, is, “what is obscenity?” Thelaw relating to obscenity is laid down in Section 292 of the PenalCode, which came about by Act 36 of 1969.

24. Under the present Section 292 and Section 293 of the PenalCode, there is danger of publication meant for public good or forbona fide purpose of science, literature, art or any other branch oflearning being declared as obscene literature as there is no specificprovision in the Act for exempting them from operations of thosesections.

25. The present provision is so vague that it becomes difficult toapply it. The purposeful omission of the definition of obscenityhas led to attack of Section 292 of the Penal Code as being toovague to qualify as penal provision. It is quite unclear what theprovisions mean. This unacceptably large “grey area”, commonin laws restricting sexual material, would appear to result not froma lack of capacity or effort on the part of drafters or legislators.

26. The Penal Code on obscenity grew out of the English law,which made the court the guardian of public morals. It is importantthat where bodies exercise discretion, which may interfere in theenjoyment of constitutional rights, that discretion must be subjectto adequate law. The effect of provisions granting broaddiscretionary regulatory powers is unforeseeable and they areopen to arbitrary abuse.

27. In Samaresh Bose v. Amal Mitra [(1985) 4 SCC 289 : 1985SCC (Cri) 523] it was observed by this Court: (SCC p. 314, para29)

“The concept of obscenity is moulded to very great extentby the social outlook of the people who are generally expectedto read the book. It is beyond dispute that the concept ofobscenity usually differs from country to country dependingon the standards of morality of contemporary society in differentcountries. In our opinion, in judging the question of obscenity,the judge in the first place should try to place himself in theposition of the author and from the viewpoint of the author thejudge should try to understand what is it that the author seeksto convey and whether what the author conveys has any literary

Aand artistic value. The judge should thereafter place himself inthe position of reader of every age group in whose hands thebook is likely to fall and should try to appreciate what kind ofpossible influence the book is likely to have in the minds of thereaders. judge should thereafter apply his judicial minddispassionately to decide whether the book in question can beBsaid to be obscene within the meaning of Section 292 IPC byan objective assessment of the book as whole and also of thepassages complained of as obscene separately.”

28. This is one of the few liberal judgments the courts have given.The point to worry about is the power given to the Judge to decideCwhat he/she thinks is obscene. This essentially deposits on theSupreme Court of India, the responsibility to define obscenity andclassify matters coming on media as obscene or otherwise. ThisCourt has time and again adopted the test of obscenity laid downby Cockburn, C.J. The test of obscenity is, whether the tendencyDof the matter charged as obscenity is to deprave and corrupt thosewhose minds are open to such immoral influences, and in whosehands publication in media of this sort may fall.

xxxx

37. In yet another case of Ramesh v. Union of India [(1988) 1ESCC 668 : 1988 SCC (Cri) 266] this Court has observed that:(SCC p. 676, para 13)

“… that the effect of the words must be judged from thestandards of reasonable, strong-minded, firm and courageousmen, and not those of weak and vacillating minds, nor of thoseFwho scent danger in every hostile point of view. This in ouropinion, is the correct approach in judging the effect of exhibitionof film or of reading book. It is the standard of ordinaryreasonable man or as they say in English law ‘the man on thetop of Clapham omnibus’.”

G63. Another judgment, sustenance wherefrom was drawn by thelearned senior counsel is Ajay Goswami v. Union of India & Ors.[20]wherein again ‘norms of the society’ test was applied by the Court in thefollowing manner:

20 (2007) 1 SCC 143

“67. In judging as to whether particular work is obscene, regardmust be had to contemporary mores and national standards. Whilethe Supreme Court in India held Lady Chatterley’s Lover to beobscene, in England the jury acquitted the publishers finding thatthe publication did not fall foul of the obscenity test. This washeralded as turning point in the fight for literary freedom in UK.Perhaps “community mores and standards” played part in theIndian Supreme Court taking different view from the Englishjury. The test has become somewhat outdated in the context ofthe internet age which has broken down traditional barriers andmade publications from across the globe available with the clickof mouse.

xxxx

70. In S. Rangarajan v. P. Jagjivan Ram [(1989) 2 SCC 574] ,while interpreting Article 19(2) this Court borrowed from theAmerican test of clear and present danger and observed: (SCCpp. 595-96, para 45)

“[The] commitment to freedom of expression demands that itcannot be suppressed unless the situations created by allowingthe freedom are pressing and the community interest isendangered. The anticipated danger should not be remote,conjectural or far-fetched. It should have proximate and directnexus with the expression. The expression of thought shouldbe intrinsically dangerous to the public interest. [In other words,the expression should be inseparably] like the equivalent of a‘spark in power keg’.”

71. The test for judging work should be that of an ordinary manof common sense and prudence and not an “out of the ordinary orhypersensitive man”. As Hidayatullah, C.J. remarked in K.A.Abbas [K.A. Abbas v. Union of India, (1970) 2 SCC 780] :(SCC p. 802, para 49)

“If the depraved begins to see in these things more than whatan average person would, in much the same way, as it iswrongly said, Frenchman sees woman’s legs in everything,it cannot be helped.”

75. The definition of obscenity differs from culture to culture,between communities within single culture, and also betweenindividuals within those communities. Many cultures have producedlaws to define what is considered to be obscene, and censorshipis often used to try to suppress or control materials that are obsceneunder these definitions.

76. The term obscenity is most often used in legal context todescribe expressions (words, images, actions) that offend theprevalent sexual morality. On the other hand, the Constitution ofIndia guarantees the right to freedom of speech and expression toevery citizen. This right will encompass an individual’s take onCany issue. However, this right is not absolute, if such speech andexpression is immensely gross and will badly violate the standardsof morality of society. Therefore, any expression is subject toreasonable restriction. Freedom of expression has contributedmuch to the development and well-being of our free society.”

64. Insofar as Section 6(4) of the Act is concerned, plea of Mr.Naphade was that idea was to impose stringent licence conditions fordance bars in order to avoid any possibility of obscene dance and thatwas rationale for keeping place of dance away from the place wherethere is discotheque or orchestra.E65.

65. Qua Section 8(2), justification of the learned senior counselwas that this provision is to be read along with Section 8(1) of the Act.Section 8(1) makes the Act of using the place in contravention of Section3 as punishable offence. In this hue, sub-section (2) of Section 8 providesthat such place would not be allowed for obscene dance or to exploitFany working woman for any immoral purpose at such place, makingsuch Act also an offence punishable under the Act. In that sense, arguedMr. Naphade, Section 8(2) is separate offence prescribed in separatelaw that is under the Maharashtra Act which is distinct from Section 292IPC.

G66. In respect of Section 8(4) of the Act which prescribes givingof tips to dancers, Mr. Naphade defended the same with the submissionthat it is matter of cultural ethos of the society. Herein, when thepurpose is to protect the dignity of women, such prohibition would bejustified. In this vein, his further argument in support of such provisionwas that showering money is method of inducement which has to beHchecked. In any case, such is the the perception of the State prompting

the legislature to make provision of this kind, which cannot be labelledas fanciful. Mr. Naphade also referred to Section 354A of IPC whichhas widened the scope of ‘sexual harassment’ and made it an offence.He submitted that it can be treated as moral code of the society.Therefore, Section 8(4) has to be judged through such lens. In thealternative, he argued that principle of severability can always be appliedand the provision should be saved by excising offending portionstherefrom.

67. Rule 2(b) of the Rules which defines ‘criminal record’ wassought to be justified on the ground that this provision is made to instillpurity in public life. It takes its colour from ‘moral turpitude’ as mentionedin the definition itself. According to the learned senior counsel, thequestion was as to whether such record has to be based on convictionor even when there is FIR/complaint against particular person,cognizance whereof is taken by the Court. His suggestion, in this behalf,was that this provision was capable of reading down and the Court wasfree to do so.68. Argument of the petitioners predicated on Article 19(1)(a) ofthe Constitution, namely, fundamental rights of the dance bars or that ofdancers was sought to be placated with the submission that balancingbetween that right on the one hand and prevention of obscenity on theother hand was necessitated. In this behalf, he referred to clause (2) ofArticle 19 as per which reasonable restriction can be imposed inter aliain the interest of ‘public order, decency or morality’. Therefore, moralityaspects had to be taken into consideration while adjudging the validity ofthese provisions, argued the learned senior counsel. On the same lines,Mr. Naphade also tried to meet the argument based on Article 19(1)(g)of the Constitution by taking shelter under clause (6) of Article 19 whichpermits the State to make law imposing reasonable restrictions in theinterest of general public.

69. With respect to Schedule under Rule 3, Mr. Naphade’s defenceof Condition No. 2 thereof was that it ensures safety. Likewise, ConditionNo. 11 of Part is matter of policy and it is the prerogative of the lawmaker to fix the distance. Regarding Condition No. 2 of Part B,submission of the learned senior counsel was that it is based on economicreality that there is an exploitation of such working clause and, therefore,the rule maker rightly laid down the condition that the working womenmust be employed under written contract on monthly salary which

Aneeds to be deposited in their bank accounts. Similarly, other clauseswere also in public interest and to achieve the purpose behind the Actqua clause (20) of Part B, specific submission was that right to privacycomes to an end when there is possibility of commission of trying andthis clause aimed at preventing such crime. Summing up his arguments,Mr. Naphade took the matter to another level by arguing that internationalBtrend is to frame the law based on morality. Such noble purpose whichthis Act seeks to achieve cannot be countenanced. He paraphrased itwith the following legal proposition:

(i) Activity which has criminal colour can always be regulatedor even banned by the legislature.C

(ii) Principle of res extra commercium had to be kept in mindwhich lays down that there is no fundamental right in those economicactivities which come under the aforesaid maxim. However, it is theState which still permits these activities and, therefore, State has everyright to permit such an activity within particular regulatory framework.DIt is that which was precisely done by the various provisions under theActs and the Rules.

(iii) Test of reasonableness is contextual and varies in differentsituations. It is based on proportionality. This test would be stricterwhere there is freedom of trade and such stricter test is justified in theEpresent context.

70. Ms. Pinky Anand, learned ASG, supported and adopted theaforesaid submissions of Mr. Naphade. She emphasised that the presentAct was regulatory and not prohibitory in nature. Keeping in view thispurpose of the Act, earlier judgment of the year 2013 in the case ofFIndian Hotel and Restaurants Association (1) will not apply. Anothersubmission of the learned ASG was that the Act prohibits obscenity,which is even otherwise illegal under the IPC, therefore, principle of resextra commercium would apply. She referred to the following judgmentsto buttress her submission:G(i) State of Bombay v. R.M.D. Chamarbaugwala & Anr.[21]

“41. It will be abundantly clear from the foregoing observationsthat the activities which have been condemned in this countryfrom ancient times appear to have been equally discouraged and

looked upon with disfavour in England, Scotland, the United Statesof America and in Australia in the cases referred to above. Wefind it difficult to accept the contention that those activities whichencourage spirit of recklesss propensity for making easy gainby lot or chance, which lead to the loss of the hard earned moneyof the undiscerning and improvident common man and therebylower his standard of living and drive him into chronic state ofindebtedness and eventually disrupt the peace and happiness ofhis humble home could possibly have been intended by ourConstitution makers to be raised to the status of trade, commerceor intercourse and to be made the subject-matter of fundamentalright guaranteed by Article 19(1)(g). We find it difficult topersuade ourselves that gambling was ever intended to formany part of this ancient country’s trade, commerce or intercourseto be declared as free under Article 301. It is not our purposenor is it necessary for us in deciding this case to attempt anexhaustive definition of the word “trade”, “business”, or“intercourse”. We are, however, clearly of opinion that whateverelse may or may not be regarded as falling within the meaning ofthese words, gambling cannot certainly be taken as one of them.We are convinced and satisfied that the real purpose of Articles19(1)(g) and 301 could not possibly have been to guarantee ordeclare the freedom of gambling. Gambling activities from theirvery nature and in essence are extra-commercium although theexternal forms, formalities and instruments of trade may beemployed and they are not protected either by Article 19(1)(g)or Article 301 of our Constitution.”

(ii) State of Tamil Nadu represented by its Secretary, Home,Prohibition and Excise Department & Ors. v. K. Balu & Anr.[22]

“16. We are conscious of the fact that the policy of the UnionGovernment to discontinue liquor vends on National highwaysmay not eliminate drunken driving completely. driver of motorvehicle can acquire liquor even before the commencement of ajourney or, during journey at place other than national orState highway. The law on preventing drunken driving alsorequires proper enforcement. Having said this, the Court mustaccept the policy of the Union Government for more than one

ABCDE

Areason. First and foremost, it is trite law that in matters of policy,in this case policy on safety, the Court will defer to and accepta considered view formed by an expert body. Second, as wehave seen, this view of the Union Government is based onstatistics and data which make out consistent pattern year afteryear. Third, the existence of liquor vends on highways presentsBa potent source for easy availability of alcohol. The existence ofliquor vends, advertisements and signboards drawing attentionto the availability of liquor coupled with the arduous drivesparticularly in heavy vehicles makes it abundantly necessary toenforce the policy of the Union Government to safeguard humanClife. In doing so, the Court does not fashion its own policy butenforces the right to life under Article 21 of the Constitutionbased on the considered view of expert bodies.”

Consideration by the Court:

71. In Indian Hotel and Restaurants Association (1) case,DSection 33A was held to be unconstitutional as it was found foul ofArticles 14, 19(1)(a) and 19(1)(g) of the Constitution. We havereproduced Section 33A of the said Act as well as the Statement ofObjects and Reasons appended to the Bill vide which the aforesaidamendment was introduced. Statement of Objects and Reasons theretoEshows that the main purpose behind inserting Section 33A in MaharashtraPolice Act was to check the performance of dances in eating houses,permit rooms or bear bars in an indecent manner. It noted that suchplaces to whom licenses to hold dance performance were granted, werepermitting the performance of dances in an indecent, obscene and vulgarmanner. Further, such performance of dances were giving rise toFexploitation of women and were derogatory to the dignity of women.They were also likely to deprave, corrupt or injure the public morality ormorals. Because of these reasons, the Government of Maharashtraconsidered it expedient to prohibit altogether the holding of such danceperformances in eating houses or permit rooms or bear bars. To achieveGthis purpose, Section 33A prohibits holding of the performance of dance,of any kind or type, in any eating house, permit room or bear bar. Tomake this prohibition effective, all such licenses given earlier werecancelled by the said statutory provision. Holding of such performanceswas also made punishable offence. At the same time, Section 33Bprovided exception to Section 33A inasmuch as Section 33A was madeH

inapplicable in certain cases. As per Section 33B, provisions of Section33A was not to apply to the holding of the dance performance in adrama theatre, cinema theatre and auditorium; or sports club or gymkhana,where entry is restricted to its members only, or three-starred or abovehotel or in any other establishment or class of establishments, which,having regard to (a) the tourism policy of the Central or State Governmentfor promoting the tourism activities in the State; or (b) cultural activities,the State Government may, by special or general order, specify in thisbehalf.

72. Two features of these provisions may be noted:

(i) In the first place, there was absolute prohibition of danceperformances in the establishments covered by Section 33A. Such danceperformances were treated, per se, obscene. In contrast, the presentregime prohibits ‘obscene dance’ and defines this term as well.

(ii) In contrast, in the establishments covered by Section 33B,there was no bar on such performances.

73. Striking down the provisions of Section 33A as discriminatory,the Court held that there was no reasonable basis for any classificationbetween those places where such performance of dance was prohibitedunder Section 33A and those places where such performance waspermitted as specified in Section 33B of the Maharashtra Police Act.Discussion in this behalf is contained, more specifically, in paras 118 to122 of the judgment which have already been reproduced above. Thatreason may not apply to the impugned Act and Rules herein inasmuchas no such distinction is made now. At the same time, some of thediscussion from this judgment would be relevant. The Court also heldthat Section 33A offended Article 19(1)(a) of the Constitution inasmuchas dance is form of expression and the said provision amounted tounreasonable restriction which is not protected by Article 19(2) of theConstitution. Further, the basis on which Section 33A was found to beviolative of Article 19(1)(g) may also be relevant. We would, therefore,like to cull out the main features of the discussion contained in IndianHotel and Restaurants Association (1) Indian Hotel and RestaurantsAssociation (1). These are:

(a) There was little or no material on the basis of which the Statecould have concluded that dance in the prohibited establishments waslikely to deprave, or injure the public morality or morals.

AWhile making these remarks, the Court specifically rejected thefindings in PRAYAS and Shubhada Chaukar’s Reports.

(b) Argument of the State to justify the provision based on intelligibledifferentia, viz., that women who perform in the banned establishmentcome from grossly deprived backgrounds and are vulnerable lot whoBare trafficked into bar dancing, was specifically rejected by pointing outthat there was no material/evidence to support such plea. Nothing inthis behalf was stated in the Statement of Objects and Reasons and thisplea was projected for the first time in the affidavit filed before the HighCourt. The Court, in the process, held that such plea was based onPRAYAS and Shubhada Chaukar’s Reports. In the opinion of the Court,Cisolated examples given therein would not be sufficient to establish theconnection of dance bars covered under Section 33A with trafficking.

(c) Performance of dance in such places could not be covered bythe principle of res extra commercium. Prohibition on such commercialactivity, which was fundamental right, had to meet the test ofD‘reasonable restriction’. However, held the Court, the State had failedto establish that the restriction is reasonable or that it is in the interest ofgeneral public.

(d) There are already sufficient rules and regulations andlegislations in place which, if efficiently apply, would control (if notEeradicate) all the dangers to the society enumerated in the preamble andthe Statement of Objects and Reasons of the impugned legislation. Suchlegislations as well as rules and regulations were specifically noted inParas 127 to 131.

(e) The Court held, in para 132 of the judgment, that the RulesFunder the Bombay Police Act have been framed in the interest of publicsafety and social welfare and to safeguard the dignity of women as wellas to prevent exploitation of women. There is no material placed onrecord by the State to show that it was not possible to deal with thesituation within the framework of the existing laws, except for theunfounded conclusions recorded in the Preamble as well as the StatementGof Objects and Reasons.

(f) Argument of the State that impugned enactment is form ofadditional regulation, as it was felt that the existing system of licenceand permits were insufficient to deal with the problem of ever increasingdance bars, was specifically rejected.H

(g) The Court also mentioned the effect of Section 33A in thefollowing words:

“136. The end result of the prohibition of any form of dancing inthe establishments covered under Section 33-A leads to the onlyconclusion that these establishments have to shut down. This isevident from the fact that since 2005, most if not all the dance barestablishments have been literally closed down. This has led tothe unemployment of over 75,000 women workers. It has beenbrought on the record that many of them have been compelled totake up prostitution out of necessity for maintenance of theirfamilies. In our opinion, the impugned legislation has proved to betotally counter-productive and cannot be sustained being ultra viresArticle 19(1)(g).”74. In contrast, the object which the impugned Act seeks tosubserve is to provide for prohibition of obscene dance in hotels,restaurants, bar rooms and other establishments. It also seeks to improvethe conditions of work, as well as to protect the dignity and safety ofwomen in such places with view to prevent their exploitation. Aspointed out above, this Act applies to all such hotels, restaurants, barrooms and establishments and the Act does not carve out two categoriesof such places unlike Sections 33A and 33B of the Maharashtra PoliceAct. In that sense, argument of discrimination based on creating twoclasses without any reasonable basis, is not available, nor was it argued.It also cannot be denied that the aforesaid objectives are in generalpublic interest inasmuch as nobody can argue that there should not beany prohibition of dances which are obscene, nor can it be argued thatsuitable provisions should not be made to protect the dignity and safetyof women in such places with view to prevent their exploitation. It isfor this reason that the petitioners have not questioned the validity of theAct and the Rules framed therein, in their entirety. Instead, they feelaggrieved by certain provisions which, according to them, areunreasonable and have the effect of putting complete prohibition onany type of dance performances, even if they are not obscene. Theyhave also argued that the conditions and restrictions which are imposedby the Act and the Rules for obtaining licence under the said Act areso severe and impossible to perform, with the result no person would beable to obtain licence under this Act. It is also emphasised that in spiteof categorical observations in Indian Hotel and Restaurants

AAssociation (1) case that there was no material before the State tosupport its plea that women at such places were exploited, the legislaturehas passed the Act almost on the same lines on which Section 33A inMaharashtra Police Act was inserted, without any fresh exercise orempirical study in this behalf. These arguments shall be touched uponwhile dealing with the specific provisions of the Act and the Rules, validityBwhereof is questioned in these petitions. As matter of fact, we maypoint out at this juncture itself, that not single establishment is givenany licence so far under Section 3 of the impugned Act. This wascandid statement made by Mr. Naphade at the bar. It shows that someof the conditions and restrictions imposed by the Act and the Rules areCsuch which are impossible to perform and, therefore, in each and everycase, without exception, the applications for grant of licence under thisAct have been rejected.

75. We would like to deal at this stage with the argument of morality,as advanced by by Mr. Naphade. The question is to what extent theDState can go in imposing ‘morality’ on its citizens? In the first instance,we would take note of certain judgments of this Court touching upon thisaspect. Following discussion in State of Punjab & Anr. v. DevansModern Breweries Ltd. & Anr.[23] may be relevant in this behalf:

“48. Dealing in commodity which is governed by statute cannotEbe said to be inherently noxious and pernicious. society cannotcondemn business nor there exists presumption in this behalfif such business is permitted to be carried out under statutoryenactments made by the legislature competent therefor. Thelegislature being the final arbiter as to the morality orotherwise of the civilised society has also to state as toFbusiness in which article(s) would be criminal in nature.The society will have no say in the matter. The society mighthave say in the matter which could have been considered in acourt of law only under common-law right and not when the rightsand obligations flow out of statutes operating in the field. Health,Gsafety and welfare of the general public may again be matterfor the legislature to define and prohibit or regulate by legislativeenactments. Regulatory statutes are enacted in conformity withclause (6) of Article 19 of the Constitution to deal with thosetrades also which are inherently noxious and pernicious in nature;

and furthermore, thereby sufficient measures are to be taken inrelation to health, safety and welfare of the general public. Thecourts while interpreting statute would not take recourse to suchinterpretation whereby person can be said to have committed acrime although the same is not crime in terms of the statutoryenactment. Whether dealing in commodity by person constitutesa crime or not can only be the subject-matter of statutoryenactment.

51. From the analysis of decisions rendered by this Court inCooverjee B. Bharucha [AIR 1954 SC 220 : 1954 SCR 873],R.M.D. Chamarbaugwala [AIR 1957 SC 699 : 1957 SCR 874],Har Shankar [(1975) 1 SCC 737 : AIR 1975 SC 1121 : (1975) 3SCR 254] or Khoday Distilleries [(1995) 1 SCC 574] it will appearthat person cannot claim any right to deal in any obnoxioussubstance on the ground of public morality.The State, therefore,is entitled to completely prohibit any trade or commerce inpotable liquor.Such prohibition, however, has not been imposed.Once licence is granted to carry on any trade or business, can itbe said that person is committing crime in carrying on businessin liquor although he strictly complies with the terms and conditionsof licence and the provisions of the statute operating in the field?If the answer to the said question is to be rendered in theaffirmative it will create havoc and lead to anarchy and judicialvagaries. When it is not crime to carry on such business havingregard to the fact that person has been permitted to do so by theState in compliance with the provisions of the existing laws,indisputably he acquires right to carry on business. Even inrespect to trade in food articles or other essential commoditieseither complete prohibition or restrictions are imposed in the matterof carrying on any trade or business, except in terms of licencegranted in that behalf by the authorities specified in that behalf.The distinction between trade or business being carried out legallyor illegally having regard to the restrictions imposed by statutewould have, therefore, to be judged by the fact as to whethersuch business is being carried out in compliance with the provisionsof the statute(s) operating in the field or not.In other words, solong it is not made impermissible to carry on such business

by reason of statute, no crime can be said to have beencommitted in relation thereto.The doctrine of res extracommercium, thus, would not be attracted, whence personcarries on business under licence granted in terms of theprovisions of the regulatory statutes.

xxxxxx

317. The matter is covered by statutory provisions. The courtcannot interpret equality, freedom or commerce clauses ofthe Constitution in such manner so as to take away therights and obligations created under statute on the groundCof public morality or otherwise. When statute permits atrade, morality takes back seat as “legislature” ascontradistinguished from “judiciary” is supposed to be theauthority to consider the morality or otherwise of certainthings prevailing in the society.

D76. We may also note, with profit, the following discussion inGobind v. State of Madhya Pradesh & Anr.[24]:

“22. There can be no doubt that privacy-dignity claims deserve tobe examined with care and to be denied only when an importantcountervailing interest is shown to be superior. If the Court doesEfind that claimed right is entitled to protection as fundamentalprivacy right, law infringing it must satisfy the compelling Stateinterest test. Then the question would be whether State interestis of such paramount importance as would justify an infringementof the right. Obviously, if the enforcement of morality were heldto be compelling as well as permissible State interest, theFcharacterization of claimed right as fundamental privacy rightwould be of far less significance. The question whetherenforcement of morality is State interest sufficient to justifythe infringement of fundamental privacy right need notbe considered for the purpose of this case and thereforewe refuse to enter the controversial thicket whetherGenforcement of morality is function of State.”

Some of the moral aspects are discussed in the context ofobscenity in the judgments cited by Mr. Naphade as well.

77. It needs to be borne in mind that there may be certain activitieswhich the society perceives as immoral per se. It may include gambling(though that is also becoming debatable issue now), prostitution etc. Itis also to be noted that standards of morality in society change with thepassage of time. particular activity, which was treated as immoralfew decades ago may not be so now. Societal norms keep changing.Social change is of two types: continuous or evolutionary and discontinuousor revolutionary[25]. The most common form of change is continuous.This day-to-day incremental change is subtle, but dynamic, factor insocial analysis. It cannot be denied that dance performances, in dignifiedforms, are socially acceptable and nobody takes exceptions to the same.On the other hand, obscenity is treated as immoral. Therefore, obscenedance performance may not be acceptable and the State can pass lawprohibiting obscene dances. However, practice which may not beimmoral by societal standards cannot be thrusted upon the society asimmoral by the State with its own notion of morality and thereby exercise‘social control’. Furthermore, and in any case, any legislation of thisnature has to pass the muster of constitutional provisions as well. Wehave examined the issues raised in the aforesaid context.

78. This brings us to the Principle of res extra commercium.Insofar as dance performances are concerned, it has already been heldthat it is not res extra commercium. We would, at this stage, again referto Indian Hotel and Restaurants Association (1) where these aspectsare dealt with as under:

(i) Human Trafficking: The State Government contended thatseveral women performers are victims of illegal trafficking, or minors,and dance bars are used for soliciting flesh trade. It was suggested thatbar girls hail from depraved backgrounds, and hence, vulnerable toprostitution and other offences under the Immoral Traffic (Prevention)Act, 1956. This Court entirely rejected the said contention in the followingwords:

“119. ...A perusal of the Objects and Reasons would show thatthe impugned legislation proceed on hypothesis that differentdance bars are being used as meeting points of criminals andpick-up points of the girls. But the Objects and Reasons say nothingabout any evidence having been presented to the Government

25 See A. Etzioni and E. Etzioni (eds.), Social Change (1964); W. Moore, Social Change(1963), W. Moore and R. Cook (eds.), Readings on Social Change (1967).

Athat these dance bars are actively involved in trafficking of women.In fact, this plea with regard to trafficking of women was projectedfor the first time in the affidavit filed before the High Court. Theaforesaid plea seems to have been raised only on the basis of thereports which were submitted after the ban was imposed. Wehave earlier noticed the extracts from the various reports. In ourBopinion, such isolated examples would not be sufficient toestablish the connection of the dance bars covered underSection 33-A with trafficking. We, therefore, reject thesubmission of the appellants that the ban has been placedfor the protection of the vulnerable women.”

(emphasis added)

(ii) Injury to Public Morals: TheCourt categorically rejected thecontention that the dance bars affect or cause harm to public morale. Inpertinent part, this Court stated that:

D“120. ..In our opinion, the State neither had the empirical data toconclude that dancing in the prohibited establishment necessarilyleads to depravity and corruption of public morals nor was theregeneral consensus that such was the situation...”

(iii) Res Extra Commercium: The State Government contendedEthat the dance performances in such establishments affect the dignity ofwomen and leads to corruption of public morals. Thus, the respondentjustified that the prohibition is reasonable restriction necessary “in theinterest of general public” as under Article 19(6) of the Constitution.This Court categorically rejected the said contention, and held that therespondent “failed to establish that the restriction is reasonable or that itFis in the interest of general public”. This Court further added that theprohibition fails to satisfy the doctrine of ‘direct and inevitable effect’ tojustify such restriction, and the insufficiency of the existing regulatoryframework.

79. Keeping in mind the aforesaid principles, we advert to theGspecific provisions.

Re: Section 2(8)(i) of the Act

80. Section 2(8) defines obscene dance. In the main body, itstates that any dance which comes within the meaning of Section 294 ofIPC and any other law for time being in force, shall be treated as ‘obsceneH

dance’. To this extent, there is no quarrel. The argument is that thedefinition of obscene dance is expanded beyond Section 294 of the IPCby specifically including following forms of dance:

“2(8)(i) which is designed only to arouse the prurient interest ofthe audience; and

(ii) which consists of sexual act, lascivious movements, gesturesfor the purpose of sexual propositioning or indicating the availabilityof sexual access to the dancer, or in the course of which, thedancer exposes his or her genitals or, if female, is topless;”

81. Insofar as clause (ii) is concerned, it is reflection of Section294 of IPC. Therefore, the petitioners have not taken any exception tothis provision. The grievance is on the inclusion of clause (i). Thesubmission is that the expression ‘arouse the prurient interest of theaudience’ is vague, incapable of giving precise meaning thereto. It maybe difficult to accept such submission for the reason that in explainingas to what kind of books, pamphlets, papers, writings, drawings, paintings,representations, figures or any other object will be deemed as obscene,Section 292 of the IPC itself uses this very expression when it laysdown that such books etc. shall be deemed to be obscene if they are‘lascivious or appeals to the prurient interest...’. In way, therefore,Section 2(8) incorporates the definition of obscenity as laid down in theIPC which also makes obscene books etc. (Section 292 IPC) as well asobscene acts and songs (Section 294 IPC) as punishable offences.

82. Concise Oxford Dictionary (Tenth Edition, revised) definesthe term ‘prurient’ as under:

“Prurient – adj. Having or encouraging an excessive interest insexual matters.

- Derivatives prurience n. pruriency n. pruriently adv.

- origin C16 (in the sense ‘having craving’): from L. prurient-,prurire ‘itch, long, be wanton’.”

83. Other dictionary meanings given to this expression are:

“(i) Characterised by an inordinate interest in sex; prurientthoughts. When arousing or appealing to an inordinate interest insex; prurient literature.

A(ii) Inordinately interested in matters of sex, lascivious. InPsychology, person who is unusually or morbidly interested insexual thoughts or practices is known as prurient. Likewise,anything which excites or encourages lustfullness and/or eroticismis termed as prurient. As per English language, therefore, suchliterature or other acts which are marked or tending to arouseBsexual desire or interest or are of laturus, salacious, lascivious,voyeuristic would be treated as prurient and be categorised asobscene.”

84. Thus, prurient interest in the context of dance performancewould be performance which has or which encourages an excessiveCinterest in sexual matters.

85. We may also point out that the expression ‘prurient interest’has come up for judicial determination as well. The U.S. Supreme Courtin Brockett v. Spokane Arcades Inc.[26] has discussed the issue ofobscenity and, in the process, specifically dealt with the expressionD‘prurient’, as can be discerned from the following observations:

“9. The Court of Appeals was of the view that neither Roth v.United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957),nor later cases should be read to include within the definition ofobscenity those materials that appeal to only normal sexualEappetites. Roth held that the protection of the First Amendmentdid not extend to obscene speech, which was to be identified byinquiring “whether to the average person, applying contemporarycommunity standards, the dominant theme of the material takenas whole appeals to prurient interest.”Id., at 489, 77 S.Ct., atF1311 (footnote omitted). Earlier in its opinion, id., at 487, n. 20, 77S.Ct., at 1310, n. 20, the Court had defined “material which dealswith sex in manner appealing to prurient interest” as:

“I.e., material having tendency to excite lustful thoughts.Webster’s New International Dictionary (Unabridged, 2d ed.,1949) defines prurient, in pertinent part, as follows:

“ ‘. . . Itching; longing; uneasy with desire or longing; of persons,having itching, morbid, or lascivious longings; of desire, curiosity,or propensity, lewd. . . .’

26 1985 SCC Online US SC 165: 472 US 491 (1985) : 105 S.Ct. 2794 : 86 L.Ed.2d 394H

“Pruriency is defined, in pertinent part, as follows:

“ ‘. . . Quality of being prurient; lascivious desire or thought. .. .’

“See also Mutual Film Corp. v. Industrial Comm’n, 236 U.S.230, 242 [35 S.Ct. 387, 390, 59 L.Ed. 552 (1915) ] where thisCourt said as to motion pictures: ‘. . . They take their attractionfrom the general interest, eager and wholesome it may be, intheir subjects, but prurient interest may be excited andappealed to. . . .’ (Emphasis added.) “We perceive nosignificant difference between the meaning of obscenitydeveloped in the case law and the definition of the A.L.I., ModelPenal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.:

“ ‘. . . thing is obscene if, considered as whole, itspredominant appeal is to prurient interest, i.e., shameful ormorbid interest in nudity, sex, or excretion, and if it goessubstantially beyond customary limits of candor in descriptionor representation of such matters. . . .’ See Comment, id., at10, and the discussion at page 29 et seq.”

xxxx

12. The Court of Appeals was aware that Roth had indicated infootnote 20 that material appealing to the prurient interest was“material having tendency to excite lustful thoughts” but did notbelieve that Roth had intended to characterize as obscene materialthat provoked only normal, healthy sexual desires. We do not differwith that view. As already noted, material appealing to the “prurientinterest” was itself the definition of obscenity announced in Roth;and we are quite sure that by using the words “lustful thoughts” infootnote 20, the Court was referring to sexual responses over andbeyond those that would be characterized as normal. At the endof that footnote, as the Court of Appeals observed,the Roth opinion referred to the Model Penal Code definition ofobscenity—material whose predominate appeal is to “a shamefulor morbid interest in nudity, sex, or excretion” and indicated that itperceived no significant difference between that definition andthe meaning of obscenity developed in the case law. This

effectively negated any inference that “lustful thoughts” as usedearlier in the footnote was limited to or included normal sexualresponses. [ This conclusion is bolstered by subsequent footnote,354 U.S., at 489, n. 26, 77 S.Ct., at 1311, n. 26, referring to anumber of cases defining obscenity in terms of “lust” or “lustful.”See Parmelee v. United States, 72 App.D.C. 203, 210, 113 F.2d729, 736 (1940) (material is protected if “the erotic matter is notintroduced to promote lust”); United States v. Dennett, 39 F.2d564, 569 (CA2 1930) (sex education pamphlet not obscene becausetendency is to “rationalize and dignify [sex] emotions rather thanto arouse lust”); United States v. One Book Called “Ulysses,” 5F.Supp. 182, 184 (SDNY 1933), aff’d, 72 F.2d 705 (CA2 1934)(meaning of the word “obscene” is “[t]ending to stir the seximpulses or to lead to sexually impure and lustful thoughts”);Commonwealth v. Isenstadt, 318 Mass. 543, 549-550, 62 N.E.2d840, 844 (1945) (material is obscene if it has “a substantial tendencyto deprave or corrupt its readers by inciting lascivious thoughts orarousing lustful desire”); Missouri v. Becker, 364 Mo. 1079, 1085,272 S.W.2d 283, 286 (1954) (materials are obscene if they “incitelascivious thoughts, arouse lustful desire”); Adams Theatre Co.v. Keenan, 12 N.J. 267, 272, 96 A.2d 519, 521 (1953)(BRENNAN, J.) (question is whether “dominant note of thepresentation is erotic allurement ‘tending to excite lustful andlecherous desire’ “).] It would require more than the possibleambiguity in footnote 20 to lead us to believe that the Court intendedto characterize as obscene and exclude from the protection of theFirst Amendment any and all speech that aroused any sexualresponses, whether normal or morbid.”

86. South African Court followed the aforesaid Americanapproach, which can be seen from the following discussion in Patrick v.Minister of Safety and Security[27]:

“40. Attempts to produce and apply definitive, certain andsatisfactory definition of obscenity have taxed the ingenuity ofAmerican judges. In Jacobellis v. Ohio, Justice Potter Stewartfamously declared: “I shall not today attempt further to define[obscenity] … and perhaps I could never succeed in intelligiblydoing so. But I know it when I see it.” [378 U.S. 184, 197 (1964) 27 1996 SCC Online ZACC 8 : [1996] ZACC 7

(concurring).] The Court has attempted to clarify the Miller testby defining “prurient” interest in sex as “shameful or morbid”interest, as opposed to “normal and healthy” interest. [Brockettv. Spokane Arcades, Inc.,, 472 U.S. 491, 504-05 (1985).] In myopinion, that elaboration does not, in itself, furnish great deal ofguidance.”

87. Even Delhi High Court has accepted the manner in whichAmerican Courts have dealt with the subject, which can be seen fromthe following observations in Amitabh Bachhan Corporation Ltd. v.Om Pal Singh Hoon[28]:

“22. Question also arose before the U.S. Supreme Court in F.C.C.v. Pacifica Foundation (1978) 438 U.S. 726) as to the meaningof of word ‘indecent’. It was contended, relying on certain rulingsthat the particular words used in the radio broadcast were not‘obscene’ and therefore not ‘indecent’, as both words weresynonymous. The majority of the Court rejected the contention.The argument was stated as follows: “Pacifica argues, however,that this Court has construed the term ‘indecent’ in related statutesas obscene”. Rejecting the same, Stevens, J held:

“The words ‘obscene, indecent or profane’ are disjunctive,implying that each has separate meaning. Prurient appeal isan element of the obscene, but the normal definition of‘indecent’ merely refers to non-conformance with acceptedstandards of morality.”

He quoted the meaning from Webster’s Third New InternationalDictionary (1960): “Unseemly, not conforming to generallyaccepted standards of morality”.

88. This Court in Raj Kapoor & Ors. v. State & Ors.[29] consideredthe question: When can film to be publicly exhibited be castigated asprurient and obscene and violative of norms against venereal depravity.Thus, nowhere it is challenged as vague term, incapable of precisedefinition.

89. It, therefore, cannot be said that dance which is aimed atarousing the prurient interest of the audience is vague term, incapable of

28 1996 SCC Online Del 268 : (1996) 37 DRJ 352 (DB)

29 (1980) 1 SCC 43

Adefinite connotation. It is, more so, when Section 292 IPC particularlyuses this expression in the deeming provision relating to obscenity.

Re: Whether Section 6(4) of the Act is violative of equalityclause enshrined in Article 19(1) of the Constitution?

90. This provision forbids grant of licence for discotheque orBorchestra where licence under this Act is granted. Conversely it alsoforbids grant of licence under this Act for the place for which licencefor discotheque or orchestra has been granted. It means that in respectof particular place, licence would be granted either for dance bars orfor discotheque/orchestra and not for both purposes. Submission is thatCthere is no rationale for such provision. The reply given by therespondents is that the purpose behind the aforesaid provision is to putstringent licence conditions for dance bars, which would not be possibleif discotheque or orchestra as also on the same place where there is adance bar. We hardly find this to be valid justification. The impugnedprovision, in our view, is totally arbitrary and irrational and has no nexusDwith the so-called purpose sought to be achieved. We, therefore, strikedown Section 6(4) of the Act as unconstitutional.

Re: Whether punishment provided under Section 8(2) of theAct is discriminatory and offends Article 14 of theConstitution?

91. Precise submission of the petitioners in this behalf is that thispunishment is for those who allow obscene dance etc. Obscenity is alsoan offence under Section 294 IPC which is punishable with imprisonmentthat may extend to three months. In contrast, as per the impugnedprovision, the imprisonment may extend to three years. It is, thus, arguedFthat for the same offence, whereas the Central Act prescribesimprisonment upto three months, the prescription of imprisonment uptothree years in Section 8(2) of the Act is violative of Article 14 and is inconflict with the IPC i.e. the central law. We are not impressed withthis argument. As rightly argued by the respondents, sub-section (2) hasGto be read along with sub-section (1) of Section 8. Under Section 8(1),if the place is used in contravention of Section 3, it is made punishableoffence. It means that where hotel, restaurant, bar room or any placeis used for staging dances without obtaining licence under Section 3 ofthe Act, that is made punishable offence. However, even if licence isobtained, that would not mean that place can be used for obscene dance

performances or for exploiting working women for any immoral purpose.It is these acts which are made punishable under sub-section (2). In thismanner, the offence under Section 8(2) is somewhat different from theoffence that is stipulated in Section 294 IPC which is clear from thelanguage of Section 294, that reads as under:

“294. Obscene acts and songs.—Whoever, to the annoyance ofothers—

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, inor near any public place, shall be punished with imprisonment ofeither description for term which may extend to three months,or with fine, or with both.”

92. Challenge to the validity of Section 8(2) of the Act, therefore,fails.

Re: Whether Section 8(4) of the Act is arbitrary and violativeof Article 14?

93. This provision is to be read with condition Nos. 6, 7 and 8 ofPart B. It makes throwing or showering coins, currency notes or anyarticle or anything which can be monetized on the stage or handing overpersonally such notes, to dancer is banned and treated as an offence.Further stipulation in these provisions is that any tip to be given should beadded in the bill only and is not to be given to the performers etc. Thejustification given by the State is that showering of money etc. is methodof inducement which has to be curbed keeping in view that Act aims toprotect the dignity of women. According to the respondents, Section354A of IPC which is moral code of the society and the State is onlyattempting to preserve this moral code by enacting such provision.We are of the opinion that insofar as throwing or showering coins,currency notes etc. is concerned, the provision is well justified as it aimsat checking any untoward incident as the aforesaid Act has tendency tocreate situation of indecency. Therefore, whatever money, anyappreciation of any dance performance, has to be given, can be donewithout throwing or showering such coins etc. However, there may notbe any justification in giving such tips only by adding thereto in the billsto be raised by the administration of the place. On the contrary, if that isdone, the person who is rightful recipient of such tips may be denied the

Asame. Further, State cannot impose particular manner of tipping as itis entirely matter between an employer and performer on the one handand the performer and the visitor on the other hand. We, therefore,uphold the provision insofar as it prohibits throwing or showering of coins,currency notes or any article or anything which can be monetised on thestage. However, handing over of the notes to the dancers personally isBnot inappropriate. We also set aside the provision of giving the tips onlyby adding the same in the bills.

94. Vide Section 12, Grievance Redressal Committee is constituted.Grievance of Mr. Nayyar, as noted above, is that it should haverepresentation of bar dancers as well. Though, such representationCmay be desirable, that by itself cannot be ground to invalidate alegislation. We, therefore, leave it to the law makers to consider thisaspect.

Legality of certain Rules

D95. Insofar as Rule 3(3)(i) is concerned, there is substance inthe submission of the petitioners that it is quite vague. As per this sub-rule, person is entitled to obtain or hold licence who possesses ‘goodcharacter’ and ‘antecedents’ and he should not have any history of‘criminal record’ in the past ten years. However, the terms ‘goodcharacter’ or ‘antecedents’ or ‘criminal record’ are not definite or precise.EThese expressions are capable of any interpretation and, therefore, it isleft to the wisdom of the licensing authority to adjudge whether particularperson possesses good character or good antecedents or not. Likewise,insofar as history of criminal record is concerned, it is not spelled out asto whether such criminal record is based on conviction in case orFmere lodging of FIR would be termed as criminal record. We, therefore,quash the provision in the present form, but, at the same time, give libertyto the rule making authority to have suitable provision of precise nature.Consequently, condition No. 16 of Part in the present form is also setaside, with liberty as aforesaid.

G96. Adverting to Condition No. 2 of Part of general conditions(GOC), it can be dissected as under:

(i) Size of stage in the bar room should not be less than 10 feet x12 feet. There is no objection to this.

(ii) It further stipulates that the stage in bar room has to be withHnon-transparent partition between hotel, restaurant and bar room

area. In essence, it segregates bar room area from hotel andrestaurant.

(iii) Fixed partition is prescribed between permit room and danceroom.

97. It is this part which is taken exception of by the petitioners.We find that on an earlier occasion, similar condition was struck downby this Court. Even otherwise, we do not find any rationality orjustification in imposing such condition which appears to be quiteunreasonable and there cannot be any rationale in this provision havingregard to any objective sought to be achieved. Therefore, this provisionis struck down.

98. As far as condition No.11 of Part is concerned whichstipulates that the place where dance is to be performed shall be at least1 km away from the educational and religious institutions, the petitionersare right in their submission that such condition does not take intoaccount the ground realities particularly in the city of Mumbai where itwould be difficult to find any place which is 1 km away from either aneducation institution or religious institution. This, therefore, amounts tofulfilling an impossible condition and the effect thereof is that, at noplace, in Mumbai, licence would be granted. Therefore, this condition isalso held to be arbitrary and unreasonable and is quashed, with liberty tothe respondents to prescribe the distance from educational and religiousinstitutions, which is reasonable and workable.99. Insofar as condition No.2 of Part is concerned, it imposesan obligation on the employers to the effect that working women, thedancers and waiters/waitresses must be employed under writtencontract on monthly salary. Further, this monthly salary is to be depositedin their bank accounts with all the benefits required under the law. Copyof such contracts is to be deposited with the licensing authority as well.Insofar as provision relating to entering into written contract as well asdepositing of the remuneration in the bank accounts is concerned, itappears to be justified as it would make the conditions on which suchworking women, dancers and waiters/waitresses are employed,transparent thereby eliminating or minimising any chances of exploitationor other disputes. However, the condition of employing such persons onmonthly salary does not stand the judicial scrutiny. This shows that suchpersons are to be employed in particular manner i.e. on monthly basis.

AThere can be other modes of employment permissible in law and theemployers have legal right to adopt such modes. For example, it couldbe employment on contract basis i.e. where the remuneration can befixed for each performance. Moreover, it impinges upon the rights ofsuch workers as well who may, otherwise, be free to give theirperformances at more than one place. Therefore, it imposes restrictionBeven upon such employees and infringes their right under Article 19(1)(g).This is the grievance raised on behalf of such women in the petitionargued by Mr. Nayyar who submitted that the provisions adversely affectwomen dancers by (i) restricting their freedom to move from one bar toanother at their will, if the work conditions or the returns are not suitable;C(ii) prohibit them from monetizing dances other than by way of receivingsalary or shared tips. More importantly, the State Government has failedto show any compelling public interest to curtail the choices of womenperformers. We find substance in the aforesaid submission and, therefore,set aside this part of Condition No. 2. We make it clear that the provisions

for written contract, deposit of the remuneration in the bank accounts ofDthe employee as well as submission of these written contracts with thelicensing authority are appropriate. Rest of the provision is struck down.

100. Adverting to the condition No. 9 of Part which prescribestiming of such dance performances only between 6 pm to 11:30 pm, wedo not find it to be manifestly unreasonable. Merely becauseEestablishments are otherwise open until 1:30 am (next day) or 12:30 am(next day) does not mean that the State has no power to restrict the timeof dance performances till 11:30 pm. Even period of 6 pm to 11:30 pmfor dance performances is quite sufficient and substantial as it allows5½ hours of such performances. We, therefore, uphold this condition.

101. Condition No. 12 of Part prescribes serving of alcohol inthe bar room where dances are staged. This is totally disproportionate,unreasonable and arbitrary. We see no reason as to why the liquorcannot be served at such places. It seems that State is more influencedby moralistic overtones under wrong presumption that persons afterGconsuming alcohol would misbehave with the dancers. If this is so, sucha presumption would be equally applicable to bar rooms where the alcoholis served by women waitresses. However, such conditions have beenheld to be unreasonable by the Courts. There may be aberrations orsporadic incidents of this nature which can happen not only at the placeswhere dance performances are staged but at other places including bar

rooms and even main restaurants. Other measures have to be adoptedto check such nuance. There cannot be complete prohibition fromserving alcoholic beverages. We, therefore, quash condition No. 12.

102. Condition No. 20 of Part mandates installing of CCTVCameras. This again would be totally inappropriate and amounts toinvasion of privacy and is, thus, violative of Articles 14, 19(1)(a) and 21of the Constitution as held in K.S. Puttaswamy case, where the Courtobserved:

“247.3. Anita Allen has, in 2011 publication, developed theconcept of “unpopular privacy” [Id, at p. 500] . According to her,Governments must design “unpopular” privacy laws and duties toprotect the common good, even if privacy is being forced onindividuals who may not want it. Individuals under this approachare not permitted to waive their privacy rights. Among thecomponent elements which she notices are: (a) physical or spatialprivacy — illustrated by the privacy in the home; (b) informationalprivacy including information data or facts about persons or theircommunications; (c) decisional privacy which protects the rightof citizens to make intimate choices about their rights from intrusionby the State; (d) proprietary privacy which relates to the protectionof one’s reputation; (e) associational privacy which protects theright of groups with certain defined characteristics to determinewhom they may include or exclude. [Id, at pp. 500-501]”

This condition is also set aside.

103. Before parting, we would like to re-emphasise that the Statecannot take exception to staging dance performances per se. It appearsfrom the history of legislative amendments made from time to time thatthe respondents have somehow developed the notion that suchperformances in the dance bars do not have moralistic basis. Initiallythe law was passed in the year 2005 by inserting Sections 33A and 33Bin the Maharashtra Police Act, 1951. At that time, by the said amendment,State desired total prohibition on the performance of dance in eatinghouse, permit room or bear bar on the premise that such performancesare always indecent, obscene or vulgar. It was also on the notion thatsuch performances were giving rise to exploitation of women as well.However, while upholding the decision of the High Court declaring Section33A of Maharashtra Police Act, 1951 to be unconstitutional, this Court

Afound and specifically held that there was no material or empirical datain the aforesaid perception garnered by the State. This Court also heldthat the impugned provision did not pass the muster of constitutionalprovisions as it was found to be violative of Articles 14, 19(1)(a) and19(1)(g) of the Constitution. The Court also categorically observed thatthere were enough statutory provisions in number of Acts and RulesB(which are stipulated in Paras 127 to 131 of the said judgment).

104. The present legislation is given cloak of bringing regulatoryregime to regulate the places where there are dance performances. Forthis purpose, the impugned Act does not permit dance performanceswithout obtaining licence under Section 3 of the Act. Further, it makesCobscene dances as penal offence. No quarrel on this. However, at thesame time, many conditions are stipulated for obtaining the licence, whichare virtually impossible to perform. It is this reason that not singleestablishment has been issued licence under the impugned Act evenwhen it was passed in the year 2014. In fact, after the amendment inDMaharashtra Police Act in 2005, no licences have been granted for dancebars. Thus, even when the impugned Act appears to be regulatory innature, the real consequences and effect is to prohibit such dance bars.The State, thereby, is aiming to achieve something indirectly which itcould not do directly. Such situation is beyond comprehension andcannot be countenanced. We have quashed those provisions of the ActEand the Rules which we have found as unreasonable and unconstitutional.We hope that applications for grant of licence shall now be consideredmore objectively and with open mind so that there is no complete ban onstaging dance performances at designated places prescribed in the Act.

105. The writ petitions stand partly allowed and are disposed of inFthe aforesaid terms.

Devika Gujral

Writ Petitions partly allowed.