1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY WRIT WRIT WRIT PETITION NO.2450 OF 2005 PETITION NO.2450 OF 2005 PETITION NO.2450 OF 2005 (ORDINARY ORIGINAL CIVIL JURISDICTION) Indian Hotel & Restaurants ) Association (AHAR), an ) Association duly registered ) under the provisions of ) the Trade Unions Act,bearing ) No.BB-11-7920, having its ) office at B-2, Wadala Shri Ram) Industrial Estate, Ground ) Floor, G.D. Ambedkar Road, ) Near Wadala Telephone Exchange) Wadala, Mumbai-400 031. ) 2.Jagdish V. Shetty, General ) Secretary ofIndian Hotel & ) Restaurants ) Association ) (AHAR), an ) Association duly ) registered under the provisions ) of the Trade Unions Act, ) bearing No.BY-11-7920, having ) its office ) at B-2, Wadala ) Shri Ram Industrial Estate, ) Ground Floor, G.D. Ambedkar ) Road, Near Wadala Telephone) Exchange, Wadala,Mumbai-400 031)..PETITIONERS Versus 1.The State of Maharashtra ) 2 through the Hon’ble Minister, ) Home Affairs, Home Department, ) Mantralaya, Mumbai-400 032. ) 2.The Commissioner of Police, ) having his office at Opp.Crawford) Market, Mumbai-1. )..RESPONDENTS WITH WITH WITH WRIT WRIT WRIT PETITION LODGING NO.2052 OF 2005 PETITION LODGING NO.2052 OF 2005 PETITION LODGING NO.2052 OF 2005 (ORDINARY ORIGINAL CIVIL JURISDICTION) Bharatiya Bargirls Union, ) a Registered Trade Union, ) through its Honorary President ) Varsha Kale, having its office ) at D-3, 303, Pancharatna ) Soc., Anand Nagar, Panduranga ) Wadi, Manpada Road, Dombivili ) (East)0421 201. )..PETITIONER Versus 1.The State of Maharashtra ) through the Hon’ble Minister, ) Home Affairs, Home Department, ) Mantralaya, Mumbai-400 032. ) 2.The Commissioner of Police, ) having his office at Opp.Crawford) 3 Mumbai-1. )..RESPONDENTS WITH WITH WITH WRIT WRIT WRIT PETITION LODGING NO.2338 OF 2005 PETITION LODGING NO.2338 OF 2005 PETITION LODGING NO.2338 OF 2005 (ORDINARY ORIGINAL CIVIL JURISDICTION) 1.Forum Against Oppression of ) Women, 29, Bhatia Building, ) Babrekar Marg, Off. Gokhale ) Road (North), Dadar (West), ) Mumbai-400 028. ) 2.Aawaz E Niswan, having their ) office at Jain High School, ) 84, Hazrat Abbas Galli, Dongri, ) Mumbai. ) 3.Women’s Centre having their ) office at 104B, Sunrise Apts., ) Nehru Rd., Vakola, Santacruz ) (E), Mumbai-400 055. ) 4.Akshara, having its office at ) Neelambari 501, Road No.86, ) Gokhale Road, Dadar West, ) Mumbai-400 028. ) 5.Womens Action and Research ) Group, 101, Zaithunvilla, Behind) Air View Building, Near Vakola ) Market, Santacruz (E),Mumbai. ) 6.India Centre for Human Rights ) 4 & Law, having its office at ) Jain Schoo, 84, Hazrat Abbas ) Galli, Dongri, Mumbai. )..PETITIONERS Versus 1.State of Maharashtra ) through the Hon’ble Minister, ) Home Affairs, Home Department, ) Mantralaya, Mumbai-400 032. ) 2.The Commissioner of Police, ) having his office at Crawford ) Mumbai-1. )..RESPONDENTS WITH WRIT PETITION NO.2587 OF 2005 (ORDINARY ORIGINAL CIVIL JURISDICTION) 1.The Sanmitra Trust, ) Malvani Project, A registered ) Trust having its office ) Karimi Park, Shalimar Apartments) 3/B, 17, Oshiwara Garden Lane, ) Jogeshwari (W)-400 102. ) 2.Ekta Self Help Group, ) an unregistered Association ) of Women Bar Dancers through ) their Chairperson having its ) address at, Karimi Part, ) 5 Shalimar Apartments, 3/B, 17 ) Oshiwara Garden Lane, ) Jogeshwari (W), Mumbai-400 102. )..PETITIONERS Versus 1.State of Maharashtra ) through the Hon’ble Minister, ) Home Affairs, Home Department, ) Mantralaya, Mumbai-400 032. ) 2.The Commissioner of Police, ) having his office at Crawford ) Mumbai-1. ) 3.Maharashtra State AIDS Control) Society ) 4.Mumbai District AIDS Control ) Society, both Respondent Nos.3 &) 4 have their office at Acworth ) Complex, R.A.Kidwai Marg, ) Wadala,(W), Mumbai-400 031. ) 5.National AIDS Control ) Organisation, 9th Floor, ) Chandralok Building, 36, Janpath) New Delhi-1100 001. )..RESPONDENTS WITH WRIT PETITION NO.5503 OF 2005 Ramnath Vishnu Waringe, ) 6 of Pune,Aged 39 years,Proprietor) of M/s.Hotel Gurudev (Lovebird) ) at Kamhe Phata, Vadgaon, Maval, ) Pune. )..PETITIONER Versus 1.The State of Maharashtara, ) through the Hon’ble Minister, ) Home Department, Mantralaya, ) Mumbai-400 032. ) 2.The Sub-Divisional Magistrate,) Maval Sub Division, Pune-1. )..RESPONDENTS 3.The District Collector of ) Pune, Pune. ) WITH WRIT PETITION NO.5504 OF 2005 Ajit Chandrakant Satkar ) of Pune,Aged 29 years,Proprietor ) of M/s.Ajit Motels & Resorts ) Private Limited at Post Kanhe, ) Taluka Maval, Dist. Pune. )..PETITIONER Versus 1.The State of Maharashtara, ) through the Hon’ble Minister, ) Home Department, Mantralaya, ) 7 Mumbai-400 032. ) 2.The Sub-Divisional Magistrate,) Maval Sub Division, Pune-1. )..RESPONDENTS 3.The District Collector of ) Pune, Pune. ) WITH CRIMINAL WRIT PETITION NO.1971 OF 2005 (APPELLATE SIDE) Fight for Rights Bar Owners ) Association c/o.Karishma ) Restaurant and Bar (Through ) its President Shri Manjeetsingh ) s/o.Moolsingh Sethi, aged 57 ) years, Occ. Business, R/o.C/o. ) Karishma Restaurant & Bar, ) Naiagon Gross Road, Dadar (East)) Mumbai-400 014. )..PETITIONER Versus 1. The Union of India through ) its Ministry,Home Department, ) New Delhi. ) 2.The State of Maharashtra, ) (Through its Principal Secretary) 8 Home Department, Mantralaya, ) Mumbai-32. ) 3.The Advocate General of ) Maharashtra, High Court Building) Annexe, Mumbai. ) 4.Shri R.R. Patil, Deputy ) Chief Minister and Home Minister) of Maharashtra, Mantralaya, ) Mumbai-32. ) 5.Shri Vilas Satam, Age 32 years) Occ. Business Vice President, ) NCP Kurla Unit, Kurla Dist.Thane) At presently residing at ) Kurla(West), Mumbai-400 070 ) 6.Shri Paresh C.Patil @ Majugale) Aged 45 years, Occ. Interior ) Decorator, C/o. NCP Head Office ) Opp. to Mantralaya, Mumbai-32. ) At present residing at 5th Floor) Near Sarva Mangal Maryalaya, ) Gangapur Road, Nashik. )..RESPONDENTS 7.Central Bureau of ) Investigation (Through its ) Director) New Delhi. ) 8.The Commissioner of Police, ) Mumbai. ) WITH WRIT PETITION NO.6930 OF 2005 9 (NAGPUR BENCH) Smt.Chhayadevi w/o.Suresh ) Jaiswal, Aged about 60 years, ) Occ. Business, Proprietor of ) M/s.Golden Spoon Bar and ) Restaurant, Abhayankar Road, ) Sitabuildi, Nagpur. )...PETITIONER Versus 1.State of Maharashtra through ) a) Chief Secretary, ) b) Home Secretary, ) Mantralaya, Mumbai. ) 2.Commissioner of Police, Nagpur)..RESPONDENTS WITH WRIT PETITION NO.6931 OF 2005 (NAGPUR BENCH) Manoj S/o.Jainarayan Sharma, ) Aged about 36 years, ) Occ. Business, Partner of ) M/s.Lahoree Delux Bar and ) Restaurant, West High Court, ) Dharampeth, Nagpur. )..PETITIONER Versus 1.State of Maharashtra through ) 10 a) Chief Secretary, ) b) Home Secretary, ) Mantralaya, Mumbai. ) 2.Commissioner of Police, ) Nagpur )..RESPONDENTS Mr. V.R. Manohar, Senior Advocate, with Mr. R.D. Soni, Mrs. Veena B. Thadani and Mr. Vishal B. Thadani for Petitioners in Original Side Writ 2450 of 2005 and Appellate Side Writ Petition No.5503 of 2005 and Writ Petition No.5504 of 2005. Mr.Aspi Chinoy, Senior Advocate with Mr. A.M. Sethna and Ms. Elavia Agnes for Petitioners in Original Writ Petition Lodg.No.2952 of 2005 Mr. Anand Grover, Senior Advocate with Mr. Prakash Mahadik, for petitioenrs in Original Side Writ Petition No.2587 of 2005 Mr. Mihir Desai for Petitioners in Original Side Writ Petition Lodg. No.2338 of 2005 Mr.S.B. Talekar with Mr. Jagdish G. Reddy for Petitioners in Appellate Side Criminal Writ Petition No.1971 of 2005. Mr.S.S. Voditel for the Petitioner in Writ Petition No.6930 of 2005 and Writ Petition No.6931 of 2005 Mr. Ravi M. Kadam, Advocate General with Mr. A.A. Kumbhakoni, Associate Advocate General, Mr. R.M. Sawant, Govt. Pleader and Mr. N.P. Deshpande A.G.P. for the State in All Petitions. Mr. Rafiq A. Dada, Special Counsel with Mr. A.R. Patil, A.G.P. for Respondent No.8 Commissioner of Police in Criminal Writ Petition No.1971 of 2005. Mr. S.R. Borulkar, Public Prosecutor with Mr. D.S. Mhaispurkar, A.G.P. for Respondent No.2 in Appellate Side Criminal Writ Petition No.1971 of 2005 Mr. V.C. Kotwal, Special Counsel with Mr. P.A. Pol, AGP for Respondent No.4 in Appellate Side Criminal Writ Petition No.1971 of 2005 Mr. R.F. Lambhay for Respondent No.1 and 7 in Appellate Side Criminal Writ Petition No.1971 of 2005 11 Mr. A.P. Mundargi, Senior Advocate with Mr. M.S. Karnik, for Respondent No.6 in Appellate Side Criminal Writ Petition No.1971 of 2005 Mr. C.J. Sawant, Senior Advocate, with Mr. S.K. Dubey, Mr. A.K. Jalisatgi and Mr. Amol B. Desai for Applicants in Chamber Summons NO.217 of 2005 in Original Side Writ Petition No.2450 of 2005 and in Chamber Summons No.218 of 2005 in Original Side Writ Petition Lodging No.2052 of 2005 and in Civil Application No.2751 of 2005 in Appellate Side Civil Writ Petition No.5503 of 2005 Mr. S.R. Ganbavale and Mr. S.S. Yadav for Applicant in Chamber Summons NO.225/05, Chamber Summons No.226 of 2005 in Original Side Writ Petition No.2450 of 2005 in Chamber Summons No.226 of 2005, Writ Petition Lodging No.2052 of 2005 and in Civil Application No.2752 of 2005 and Civil Application No.2753 of 2005 in Appellate Side Civil Writ Petition No.5504 of 2005. Mr. A.J. Almeida for Applicant in Chamber Summons No.262 of 2005 in Original Side Writ Petition No.2450 of 2005. Mr. Ishwarprasad G. Khandehwala, represetnative of Applicant in Chamber Summons No.231 of 2005 in Original Side Writ Petition No.2450 of 2005, Chamber summons No.232 of 2005 in Original Side Writ Petition Lodging No.2052 of 2005, Chamber Summons No.238 of 2005 in Original Side Writ Petition No.2587 of 2005 and Chamber Summons No.233 of 2005 in Original Side Writ Petition Lodging No.2338 of 2005. CORAM: CORAM: CORAM: F.I. REBELLO & F.I. REBELLO & F.I. REBELLO & MRS.ROSHAN MRS.ROSHAN MRS.ROSHAN DALVI, JJ. DALVI, JJ. DALVI, JJ. RESERVED ON: 14TH DECEMBER, 2005 PRONOUNCED ON:12TH APRIL,2006. JUDGMENT (PER F.I. REBELLO, J): . The challenge in all these petitions is to the constitutional validity of Sections 33A and 33B of the Bombay Police Act, as amended by the Bombay Police (Amendment) Act, 2005. The bill was passed by the Legislative Assembly on 21st July, 2005 and by 12 the Legislative Council on 23rd July, 2005 and has now come into force. The Sections under challenge may be gainfully reproduced:- 33A(1) Notwithstanding anything contained in this Act or the rules made by the Commissioner of Police or the District Magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005,-- (a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited; (b) all performance licences, issued under the aforesaid rules by the Commissioner of Police or the District Magistrate or any other officer, as the case may be, being the Licensing Authority, to hold a dance performance, of any kind or type, in an eating house, performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled. (2)Notwithstanding anything contained in Section 131, any person who holds or causes or permits to be held a dance performance of 13 any kind or type, in an eating house, permit room or beer bar in contravention of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to rupees two lakhs: Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand. (3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under sub-section (1), holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, 14 after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence. (4) A person aggrieved by an order of the Licensing Authority cancelling the Certificate of Registration and the licence under sub-section (3), may, within a period of 30 days from the date of receipt of the order, appeal to the State Government. The decision of the State Government thereon shall be final. (5)Any person whose performance licence stands cancelled under sub-section (1), may apply to the Licensing Authority, who has granted such licence, for refund of the proportionate licence fee. The Licensing Authority, after making due inquiry shall refund the licence fee on pro-rata basis, within a period of 30 days from the date of the receipt of such application. (6) The offence punishable under this section shall be cognizable and non-bailable. 33B. Subject to the other provisions of this 15 Act, or any other law for the time being in force, nothing in section 33A shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf. Explanation.-- For the purposes of this section, "sports club" or "gymkhana" means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force." 2. The challenges as formulated in the Writ Petitions, may now be set out before adverting to the facts. Writ Petition No.2450 of 2005 has been filed by the Indian Hotel & Restaurant Association (AHAR) and Shri J.V. Shetty, General Secretary. AHAR is an Association of various hotel owners and bar owners 16 and/or conductors of the same, who carry on business of running restaurants and bars in Mumbai. The grounds of challenge to the constitutional validity of the Act, and the various other contentions raised in Writ Petition No.2450 of 2005, may be summarised as under:- (1) Maharashtra Act No.35 of 2005 is not applicable to the petitioners members; (2) The amendment violates Article 19(1)(g) of the Constitution of India by imposing restrictions by way of total prohibition on the petitioners fundamental right to practice any profession or to carry on any occupation, trade or business; (3) Section 33B exempts certain establishments from the ban imposed by Section 33A; The amended Section 33A is violative of Article 14 of the Constitution of India; (4) Affidavit in reply dated 1st October, 2005 does not comply with the provisions of Order 19 Rule 3 of the Code of Civil Procedure. Hence the contentions in the return filed being based on mere hearsay and being without personal knowledge cannot be 17 relied upon or admitted in evidence; (5) Material portions of the petition have not been denied by the respondents and consequently are deemed to have been admitted. To the extent contentions have not been controverted, the petition will have to proceed based on uncontroverted facts in the petition. The allegations about trafficking, showering of money by customers, vulgarity and immorality have been made without any personal knowledge and/or investigation being carried out by the Government. The allegations about exploitation of girls or trafficking have appeared for the first time in the return filed by the Government. The statement of objects and reasons does not refer to trafficking. . The challenges in W.P. No. 5503/20045 and 5504/2004 are similar. 3. Writ Petition Lodging No.2052 of 2005 is filed by Bharatiya Bargirls Union, a registered trade union bearing No.Kamgar Upa Ayuktha/Thane/945/2004 under the Trade Union Act. It is represented by Ms. Varsha Kale, Honorary President. It claims a membership of 5000, who work as bar girls in different parts of Maharashtra. It is their 18 contention that there are approximately 75,000 women working in around 2500 bars and hotels in or around Mumbai city as well as in other districts of Maharashtra. The principal contentions as urged are that:- (1)the amendment is violative of the right of the bar girls to carry on an occupation or profession within the meaning of Article 19(1)(g) of the Constitution of India. The restriction amounts to a total prohibition and consequently is violative of the fundamental rights to carry on an occupation or profession. (2) The impugned amendment is arbitrary and discriminatory in as much as it permits performance of dance in a drama theatre, cinema theatre and auditorium or sports club or gymkhana or three starred and above hotel, while completely prohibiting the same in an eating house, permit room or beer bar. The classification created has no reasonable nexus to the aims and objects it is supposed to achieve and is not founded on any intelligible differentia, having a nexus with the object sought to be achieved, namely prohibiting dancing in an eating house, beer bar and permit room and consequently is 19 violative of article 14 of the Constitution of India. 4. In Writ Petition Lodging No.2338 of 2005, six petitioners are co-petitioners. The petitioner No.1 is the Forum Against Oppression of Women (FAOW), claiming to be an autonomous, voluntary, non-funded group, working on women’s issues for the last 25 years. FAOW, as the petitioner’s No.1 abbreviated name is known, is a part of the National Networking of Autonomous Women’s Groups and has been organising and participating in six National Conferences of Women’s Movements in India. It functions with a discussion and campaign group, actively networking and campaigning around all issues concerning discrimination against women and other related activities. . The petitioner No.2 is Aawaaz-e-Niswan (AEN), a registered women’s organisation dedicated towards fighting injustices inflicted upon women and has been in existence for 17 years. AEN grew from the need for a space for Muslim women to come together and share their experiences. . The petitioner No.3 emerged out of the women’s movement in the City of Mumbai in the year 1980 and is a registered public trust. It was set up to further the cause of women’s rights and to make 20 society aware of the oppressions suffered by women of different sections. . The petitioner No.4 is known as Akshara and has been functioning since 1980s and grew out of the 1980s women’s movement’s campaigns against rape and dowry. Their objective is in changing society by changing people and encouraging collective functioning. . Petitioner No.5, the Women’s Research and Action Group (WRAG) is a group of committed women working towards the promotion of the social and legal status of women from marginalized, disadvantaged, unrepresented and under-represented communities. It was founded in Mumbai in April, 1993 and is registered as a public trust. . The Petitioner No.6 is the India Centre for Human Rights and Law (ICHRL) and registered under the Bombay Public Trust Act. It works among the most vulnerable and marginalized people to ensure their access to rights and is a collective of lawyers and activists. . Petitioners have raised the following contentions.(1) The amendment violates the right to life, livelihood of bar dancers as set out under Article 21 of the Constitution of India while 21 prohibiting dancing in eating house, beer bars and permit rooms no rehabilitation or compensation has been provided under the amendments or any other policies. (2) The amendment is violative of the bar dancers right to an occupation or profession. The restriction imposed is unreasonable and the respondents have failed to produce material to show that the restriction falls within permissible restrictions.(3) The amendment is violative of Article 14 of the Constitution of India as there is hostile discrimination between dancers in various establishments.(4) The amendment is violative of the rights of the bar dangers right to freedom of expression. The prohibition sought to be imposed on the grounds of obscenity, decency and morality in the absence of the State discharging its burden amounts to an unreasonable restriction. 5. Writ Petition No.2587 of 2005 is by two petitioners. Petitioner No.1 is a trust registered under the Public Trust Act and has been working for many years with sex workers in Malvani area of Malad in Mumbai providing HIV/AIDS and S.T.D. related services like condom promotion, setting up of clinics, etc. They have initiated 10 self groups with each group having 10 bar dancers. The petitioner No.2 is the Ekta Self Group consisting of 10 bar dancers. Their principal contentions may be set out as under:- 22 (i) Section 33A and 33B is violative of Article 19(1)(a) and not protected by Article 19(2) of the Constitution. (ii) The prohibition of all types of dancing whether vulgar or not is ipso facto violative of Article 19(1)(g) and imposes a complete ban on people choosing dancing in dance bars as an occupation and cannot be construed as a reasonable restriction under Article 19(6) of the Constitution. (iii) Clubbing of all forms of dance performed in eating house, beer bars and permit rooms whether decent or indecent in one class is violative of Article 14 of the Constitution of India. Secondly dividing the establishments into those covered under Section 33A on the one hand and on the other those excluded under Section 33B, makes the classification unreasonable and not based on an intelligible differentia and having no nexus with the object sought to be achieved. The object for the exemption provided under Section 33B is for holding dance performance in sports club, gymkhana and three starred and above hotel by renowned national and international artists having acquired skill 23 in western dance form. The respondents have failed to show how the establishments exempted under Section 33B can have only non-obscene, decent, non-vulgar dance performance and why the dance performance in the establishments prohibited under Section 33A cannot be decent. (iv) Dancing is a legitimate source of livelihood. The impugned amendment has deprived the bar dancers of their right to carry on a profession of their choice and deprives them of their legitimate right of livelihood. The impugned amendment does not meet the test of substantive fairness. It does not provide for any alternative employment or occupation for the dancers much less does it make any alternate profession as is required to be made by the State as far as their right to livelihood is concerned. Prohibiting dancing in an eating house, beer bar and permit room is violative of article 14 of the Constitution of India. The amendment also does not meet the test of procedural fairness, as it imposes a blanket ban on all dance performances in dance bars without providing a procedure under which their fundamental rights to earn a livelihood is assured and also protection of the other 24 fundamental rights guaranteed under Article 19. The amendment depriving the bar dancers their right to livelihood has put them in a position where they might, out of necessity, have to engage in unprotected sex work. Thus they would be highly vulnerable to contact sexually transmitted diseases including HIV. (v)The right to livelihood under Article 21 of the Constitution includes the right to health. The prohibition imposed by Section 33A is, therefore, violative of their health guaranteed by Article 21 of the Constitution. Section 33A and 33B cannot be construed as reasonable restriction under Article 19(6) of the Constitution. Dancing is not "res-extra commercium" whereas liquor has been held to be "res-extra commercium". The restriction, therefore, imposed in the establishment against dancing and permitting the sale of liquor cannot be construed as reasonable restriction as it violates the right of the bar dancers to practice an occupation or profession. If the object was to prohibit vulgar dancing then by prohibiting all types of dancing, the amendment violates Article 19(1)(g) of the Constitution of India. (vi). The prohibition of dancing in eating 25 house, beer bar and permit rooms under Section 33A