PART –1

FACTS OF THE CASE

Brief facts leading to the filing of the aforesaid writ petitions are – The Bombay
Police Act, 1951 (hereinafter ‘the Act’) was enacted in the year 1951 with the object
of consolidating and amending the law relating to the regulation of the exercise of
powers and performance of the functions by the State Government for maintenance
of public order. Section 33 of the Act authorises the State Government to frame rules
regulating places of public amusement and entertainment. By virtue of Section 33 of
the Act, the “Rules for Licensing and Controlling Places of Public Amusement (other
than Cinemas) and Performances for Public Amusement including Melas &
Tamashas, 1960” (hereinafter ‘the Rules’) were enacted to regulate and maintain
discipline in places of public amusement, melas etc.

In 1986, orchestra and dance in hotels was permitted to be performed pursuant to

the Rules and such institutions functioned under terms and conditions laid down
therein. However, several cases relating to violation of the terms and conditions of
performance licences came to be registered. It is claimed that 20,196 cases were
registered under Section 33(w), 110 and 117 of the Act from the year 2000 till 2005.
Also, various cases of minor girls being rescued from dance bars were reported
during the said period 2002-2005. The appellants have referred to the case histories
from the Government Special Rehabilitation Centre for Girls (Special Home) of 10
girl children rescued from such establishments under Immoral Traffic (Prevention)
Act, 1956 by Mumbai Police, which according to the appellants, correctly depict the
prevailing situation.

These civil appeals seek to challenge common judgment and final order dated 12th
April, 2006 in Writ Petition No.2450 of 2005, W.P. No.2052 of 2005, W.P.No.2338 of
2005 and W.P.No.2587 of 2005 passed by the High Court of Judicature at Bombay,
whereby Section 33A of the Bombay Police Act, 1951 as inserted by the Bombay
Police (Amendment) Act, 2005 has been declared to be ultra vires Articles 14 and
19(1)(g) of the Constitution of India.

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 ISSUES

1.Whether the State of Maharashtra does not have the legislative competence to
enact the impugned law as 'morality' does not fall within the ambit of List II of
Schedule 7 ?

2. whether the impugned amendment was not reserved for the assent of the
President and therefore is unconstitutional under Article 254 of the Constitution and
also that the State does not have the power to implement international conventions
and hence this enactment amounts to fraud on the Constitution ?

3.Whether the establishment of the petitioners is a place of public entertainment and

public amusement as defined under S. 2(10) and 2(9) respectively and not an "eating
place" under S.2(5A) of the Bombay Prohibition Act, 1951 ?

4.Whether there is violation of Article 19 (1)(a) as dance is a form of expression and

that the impugned enactment is an unreasonable restriction and is it protected
by Article 19(2).?.

5.Whether the impugned amendment was not reserved for the assent of the
President and therefore is unconstitutional under Article 254 of the Constitution ?

PROVISION OF LAW

Article 254 in The Constitution Of India 1949

Inconsistency between laws made by Parliament and laws made by the Legislatures
of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by
Parliament, whether passed before or after the law made by the Legislature of such

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 State, or, as the case may be, the existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the repugnancy, be void

(2) Where a law made by the Legislature of a State with respect to one of the
matters enumerated in the concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an existing law with respect to
that matter, then, the law so made by the Legislature of such State shall, if it has
been reserved for the consideration of the President and has received his assent,
prevail in that State: Provided that nothing in this clause shall prevent Parliament
from enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of the
State

Section 2 in The Immoral Traffic (Prevention) Act, 1956

Definitions.—In this Act, unless the context otherwise requires,—

(a) “brothel” includes any house, room, 3 [conveyance] or place or any portion of any
house, room,3 [conveyance] or place, which is used for purposes 4 [of sexual
exploitation or abuse] for the gain of another person or for the mutual gain of two or
more prostitutes;

Article 15 in The Constitution Of India 1949

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment;
or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the general
public

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 (3) Nothing in this article shall prevent the State from making any special provision
for women and children

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Article 19(1)(a) in The Constitution Of India 1949

(a) to freedom of speech and expression;

Article 19(2) in The Constitution Of India 1949

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub clause
in the interests of the sovereignty and integrity of India, the security of the State,
friendly relations with foreign States, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence

Article 21 in The Constitution Of India 1949

21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law

Article 19 in The Constitution Of India 1949

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) omitted

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 (g) to practise any profession, or to carry on any occupation, trade or business

Section 294 in The Indian Penal Code

Obscene acts and songs.—Whoever, to the annoyance of others—

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

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

ARGUMENT BY APPELLANT

It was contended from the appellant side ,

• That the State of Maharashtra does not have the legislative competence to enact
the impugned law as 'morality' does not fall within the ambit of List II of Schedule 7
and that the impugned enactment falls in the concurrent list.

• That the impugned amendment was not reserved for the assent of the President
and therefore is unconstitutional under Article 254 of the Constitution and also that
the State does not have the power to implement international conventions and hence
this enactment amounts to fraud on the Constitution.

• That the enactment results in interference with the independence of judiciary as no

reasons are provided under S. 33A(2) of the Act for awarding lesser punishments.

• That the affidavit filed by Youraj Laxman Waghmare was not in compliance with
Order 19 Rule 3 of the Civil Procedure Code as no verification clause was provided.

• That the establishment of the petitioners is a place of public entertainment and

public amusement as defined under S. 2(10) and 2(9) respectively and not an "eating
place" under S.2(5A) of the Bombay Prohibition Act, 1951 and hence the provisions
do not bind the petitioners.

• That S. 33A and 33B are arbitrary under Article 14 as they provide for different
standards of morality to institutions with similar activities and that the activities in S.
33A establishments are less obscene but nonetheless the classification bears no
nexus to the object of the Amendment.

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 • That S. 33A is violative of Article 15 on the basis of gender discrimination as the
dancers are mainly women.

• That there is violation of Article 19 (1)(a) as dance is a form of expression and that
the impugned enactment is an unreasonable restriction and it is not by protected
by Article 19(2).

• That there is an unreasonable restriction on right to freedom of profession as the

State Government permitted and granted licenses for running such establishments
being Res Commercium and that it deprives the bar owners of their right to carry on
business and bar dancers the right to carry on their profession.

• That right to life under Article 21 is infringed as right to life includes right to
livelihood and that the State has not provided for any rehabilitation.

ARGUMENT BY RESPONDENT

The State of Maharashtra defended the challenge to enactment as follows:

• That the impugned enactment is covered by the List II. Entries 1- Public Order, 2-
Police, 6- Public Order, 8- Intoxicants, 33- Entertainment or Amusement, 64-
Offences against laws.

• That the 'eating houses' are covered in the impugned enactment as they would fall
in public entertainment places, as license is issued to an eating house, which enjoys
an additional facility to serve liquor, wine and beer.

• That there is no violation of Article 19(1)(a) as the dance being conducted is not an
expression but a profession where restrictions can be imposed.

• That there is no violation of Article 15 as the ban on obscene dance applies to men
and women.

• That the several minor girls danced to get rewarded with cash by enticing
customers, that led to a competition between performers leading to greatest rewards
reserved for the greatest indignities which escalated prostitution which lead to
registration of several cases under Prevention of Immoral Trafficking Act and under

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 Bombay Police Act. That this led the legislatures to make an independent
classification of these establishments to safeguard the dignity of women, and public
morality. That there are only six exempted establishments and that obscene
performances are not permitted in such exempted establishments. Hence there is no
violation of Article

• That with regard to Article 19(I) (g) there is no absolute right to conduct trade or
profession and that the same is subject to public order, decency and morality and
hence the restriction is reasonable and justified.

• That there is no violation of Article 21 as special cell has been constituted by

Women and Child Welfare Department to train and assist the "bar girls" in availing
benefits of the various Government Schemes for employment and providing
alternative dignified vocations.

DECISION OF COURT [JUDGEMENT]

Keeping in view the circumstances, The SC are not inclined to interfere with the
conclusions reached by the High Court. Therefore, the court find no merit in these
appeals and the same are accordingly dismissed. All interim orders are hereby
vacated.

REASON FOR THE DECISION

In court opinion, it would be more appropriate that the State Government re-
examines the recommendations made by the Committee which had been constituted
by the State Government comprising of a Chairman of AHAR, Public and Police
Officials and chaired by the Principal Secretary (E.I.), Home Department. The
Committee had prepared a report and submitted the same to the State Government.
The State Government had in fact sent a communication dated 16th July, 2004 to all
District Judicial Magistrates and Police Commissioner to amend the rules for
exercising control on Hotel Establishments presenting dance programmes.

The suggestions made for the amendment of the Regulations were as follows : Bar
girls dancing in dance bars should not wear clothes which expose the body and also
there should be restriction on such dancers wearing tight and provocative clothes.

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 There should be a railing of 3 ft. height adjacent to the dance stage. There should be
distance of 5 ft. between the railing and seats for the customers. In respect of dance
bars who have secured licences earlier, provisions mentioned above be made
binding. It should be made binding on dance bars seeking new licences to have
railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the
railing and sitting arrangement for customers.

Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be
provided for such dancer should be minimum of 15 sq. ft. so that more than 8
dancers cannot dance simultaneously on the stage having area of 12- sq. ft. If the
dancers are to be awarded, there should be a ban on going near them or on
showering money on them. Instead it should be made binding to collect the said
money in the name of manager of the concerned dancer or to hand over to the
manager.

Apart from the above, a register should be maintained in the dance bar to take
entries of names of the girls dancing in the bar every day. Similarly, holders of the
establishment should gather information such a name, address, photograph and
citizenship and other necessary information of the dance girls. Holder of the
establishment should be made responsible to verify the information furnished by the
dance girls. Also above conditions should be incorporated in the licences being
granted. Despite the directions made by the State Government, the authorities have
not taken steps to implement the recommendations which have been submitted by
AHAR.

On the contrary, the impugned legislation was enacted in 2005. In our opinion, it
would be more appropriate to bring about measures which should ensure the safety
and improve the working conditions of the persons working as bar girls. In similar
circumstances, this Court in the case of Anuj Garg had made certain observations
indicating that instead of putting curbs on women’s freedom, empowerment would be
more tenable and socially wise approach.

This empowerment should reflect in the law enforcement strategies of the State as
well as law modeling done in this behalf. In our opinion, in the present case, the
restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as
there could be several lesser alternatives available which would have been adequate

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 to ensure safety of women than to completely prohibit dance. In fact, a large number
of imaginative alternative steps could be taken instead of completely prohibiting
dancing, if the real concern of the State is the safety of women.

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 PART 2

CRITICAL COMMENT

In this case Art. 14 has been dealt in a wider manner .the court observed that
Class or social class/social stratum/strata or class of an establishment as basis for
Classification based on class of performer and class of audience. The court
slammed the Presumption that enjoyment of same kind of entertainment by upper
classes leads only to mere enjoyment and in the case of poor classes, leads to
immorality, decadence and depravity and Classification based on presumption that
performance of an identical dance in establishments having facilities less than a
three-starred hotel would be derogative to the dignity of women and would be likely
to deprave, corrupt or injure public morality or morals, but would not be so in
exempted establishments . hence the court Held, it to be discriminatory and
observed that Presumption is elitist, invidious and totally untenable under the
Constitution,

Classification between establishments (eating houses, permit rooms, beer

bars) in which dancing of any kind was banned under S. 33-A of Bombay Police Act
and exempted establishments (hotels, clubs and gymkhanas) in which such dances
were permitted under S. 33-B of Bombay Police Act. Classification based on type of
dance" and surrounding circumstances are needed to be checked apart from class
level classification.Whether the same dance performance on change of venue and
spectators/audience therein would convert itself into a sensual one from a sensuous
one. Justification advanced by State was that in banned establishments dances
performed were a form of sexual propositioning, audience had easy access to the
dancers showering them with money, and a different type of crowd visited these
establishments

Making of improper distinction on grounds of classes of establishments or classes of

persons, who frequent the establishment, held, is discriminatory. There is no
rationale which would justify the conclusion that a dance that leads to depravity in
one place would get converted into an acceptable performance by a mere change of
venue

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 Morality and depravity cannot be pigeon-holed by degrees depending upon the class
of the audience - Activities which are obscene or which are likely to deprave and
corrupt those whose minds are open to such immoral influences, cannot be
distinguished on basis of whether they are performed in five-starred hotels or in
dance bars

The judicial conscience of the Court cannot give credence to a notion that high
morals and decent behaviour is the exclusive domain of the upper classes, whereas
vulgarity and depravity are limited to the lower classes After analysing all the facts
and contentions made by both sides court held, Ss. 33-A and 33-B of Bombay Police
Act introduce an invidious and blatant discrimination which cannot be justified under
Art. 14 , Said classification is opposed to constitutional philosophy prohibiting
discrimination on basis of caste, colour, creed, religion or gender Hence, the Ss. 33-
A and 33-B are ultra vires to the constitutional article ,Art. 14,

Freedom of trade, business or profession and Scope of it is also been an issue of

the appeals. Interference by State to protect dignity and safety of women were
needed in a socirty were welfare state is a objective whereas Prohibition of
performance of dance, of any kind or type, in eating house, permit room or beer bar
under S. 33-A, Bombay Police Act, 1951 will Consequence to Unemployment of
over 75,000 women workers who had performed such dances .

Resort to prostitution out of necessity for maintenance of their families for which a
Counterproductive legislation is needed and Held (per curiam) to be ultra viresto the
Art. 19(1)(g) the court held it would be better to treat the cause than to blame the
effect and to completely discontinue the livelihood of a large section of women, eking
out an existence by dancing in bars, who will be left to the mercy of other forms of
exploitation. Compulsion of physical needs has to be taken care of while making any
laws on the subject, More often than not, it is a Hobson's choice between starving
and resorting to bar dancing,

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

room or beer bar under S. 33-A , Plea to read down the expression any kind or type"
of dance by any person to mean dances which are obscene and derogatory to the
dignity of women were rejected and Held, such reading down cannot be permitted so
long as any kind of dance is permitted in establishments covered under S. 33- B

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 The Applicability of Doctrine of severability were checked and held Both provisions
of impugned Act declared ultra vires .Plea of declaring one provision constitutional
by applying the doctrine of severability by declaring the other provision
unconstitutional were rejected by the court .Remaining provision, held to be
continue unconstitutional

Women's freedom and empowerment were the crust of the present appeals Women
working in dance bars have rights so does the Role of State to take Measures to
ensure safety and improve the working conditions of such persons . Reasonable
restrictions may be imposed on bar dancing, but without completely prohibiting or
stopping it. Women's freedom and their empowerment should be reflected in the law-
enforcement strategies of the State and modelling of laws

Necessity of re-examination of recommendations of Committee (formed vide

Government of Maharashtra, Home Department, Resolution 2002) suggesting
amendments to Regulations for exercising control on hotel establishments
presenting dance programmes ,State has to provide alternative means of support
and shelter to persons engaged in such trades or professions some of whom are
trafficked and have nowhere to go or earn a living the court held it clearly stating that
Strong and effective support system is necessary to solve such problem, and not an
outright ban on dance performances,In the case after analysing Arts. 136, 142, 14,
15(1), 19(1)(a) & (g) and 21 the court dealt Matters at large before Supreme Court
and the act of High Court rejecting challenge to impugned Act where questioned and
proclaimed No challenge to conclusions of High Court in counter-appeal by
respondents .High Court's order causing no manifest injustice to respondents nor
were conclusions recorded by High Court palpably erroneous

Supreme Court not to interfere over the decision of high court .Supreme Court not
expressing any opinion on correctness or otherwise of conclusions of High Court
with regard to Ss. 33-A and 33-B, Bombay Police Act, 1951 not being ultra vires Arts.
15(1), 19(1)(a) and 21 of Constitution but Supreme Court however finding said
sections to be ultra vires Arts. 14 and 19(1)(g) of Constitution,

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