Case: State Of Maharashtra  Vs. Indian Hotel &amp; Retaurants Assn

with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression “any kind or type” of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B. 122. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability. Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A. 123. In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government. The State Government had in fact sent a communication dated 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 : (1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being granted. 124. Despite the directions made by the State Government, the authorities have not taken steps to implement the recommendations which have been submitted by AHAR. On the contrary, the impugned legislation was enacted in 2005. In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls. In similar circumstances, this Court in the case of Anuj Garg (supra) had made certain observations indicating that instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women. 125.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The High Court rejected the challenge to the impugned Act on the ground that the State legislature was not competent to enact the amendment. The argument was rejected on the ground that the amendment is substantially covered by Entries 2, 8, 33 and 64 of List II. The High Court further observed that there is no repugnancy between the powers conferred on the Centre and the State under Schedule 7 List II and III of the Constitution of India. The High Court also rejected the submissions that the proviso to Section 33A (2) amounts to interference with the independence of the judiciary on the ground that the legislature is empowered to regulate sentencing by enactment of appropriate legislation. Such exercise of legislative power is not uncommon and would not interfere with the judicial power in conducting trial and rendering the necessary judgment as to whether the guilt has been proved or not. The submission that the affidavit filed by Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered because it was not verified in accordance with law was rejected with the observations that incorrect verification is curable and steps have been taken to cure the same. The submissions made in Writ Petition 2450 of 2005 that the amendment would not apply to eating houses and would, therefore, not be applicable in the establishments of the petitioners therein was also rejected. It was held that theincludes eating houses which serve alcohol for public consumption. It was further observed that the amendment covered even those areas in such eating houses where alcohol was not served. The High Court also rejected the challenge to the amendment that the same is in violation of Article 15(1) of the Constitution of India. It has been observed that dancing was not prohibited in the establishments covered under Section 33B only on the ground of sex. What is being prohibited is dancing in identified establishments. The Act prohibits all types of dance in banned establishments by any person or persons. There being no discrimination on the basis of gender, the Act cannot be said to violate Article 15(1) of the Constitution.88. The High Court has even rejected the challenge to the impugned amendment on the ground that the ban amounts to an unreasonable restriction, on the fundamental right of the bar owners and bar dancers, of freedom of speech and expression guaranteed under Article 19(1)(a). The submission was rejected by applying the doctrine of pith and substance. It has been held by the High Court that dance performed by the bar dancers can not fall within the termof speech andas the activities of the dancers are mainly to earn their livelihood by engaging in a trade or occupation. Similarly, the submission that the provision in Section 33A was ultra vires Article 21 of the Constitution of India was rejected, in view of the ratio of this Court, in the case of Sodan Singh & Ors. Vs. New Delhi Municipal Committee & Ors. [(1989) 4 SCC 155] wherein it is observed as followsdo not find any merit in the argument founded on Article 21 of the Constitution. In our opinion, Article 21 is not attracted in a case of trade or business – either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connectedHigh Court has held that the classification under Sections 33A and 33B was rational because the type of dance performed in the establishments allowed them to be separated into two distinct classes. It is further observed that the classification does not need to be scientifically perfect or logically complete.96. The High Court has, however, concluded that classification by itself is not sufficient to relieve a statute from satisfying the mandate of the equality clause of Article 14. The amendment has been nullified on the second limb of the twin test to be satisfied under Article 14 of the Constitution of India that the amendment has no nexus with the object sought to be achieved. Mr. Subramanium had emphasised that the impugned enactment is based on consideration of different factors, which would justify the classification. We have earlier noticed the elaborate reasons given by Mr. Subramanium to show that the dance performed in the banned establishments itself takes a form of sexual propositioning. There is revenue sharing generated by the tips received by the dancers. He had also emphasised that in the banned establishment women, who dance are not professional dancers. They are mostly trafficked into dancing. Dancing, according to him, is chosen as a profession of last resort, when the girl is left with no other option. On the other hand, dancers performing in the exempted classes are highly acclaimed and established performer. They are economically independent. Such performers are not vulnerable and, therefore, there is least likelihood of any indecency, immorality or depravity. He had emphasised that classification to be valid under Article 14 need not necessarily fall within an exact or scientific formula for exclusion or inclusion of persons orour opinion, the appellants herein have failed to satisfy the aforesaid test laid down by this court. The Counsel for the appellant had, however, sought to highlight before us the unhealthy practice of the customers showering money on the dancers during the performance, in the prohibited establishments. This encourages the girls to indulge in unhealthy competition to create and sustain sexual interest of the most favoured customers. But such kind of behaviour is absent when the dancers are performing in the exempted establishments. It was again emphasised that it is not only the activities performed in the establishments covered under Section 33 A, but also the surrounding circumstances which are calculated to produce an illusion of easy access to women. The customers who would be inebriated would pay little heed to the dignity or lack of consent of the women. This conclusion is sought to be supported by a number of complaints received and as well as case histories of girl children rescued from the dance bars. We are again not satisfied that the conclusions reached by the state are based on any rational criteria. We fail to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. Rather it is evident that the same dancer can perform the same dance in the high class hotels, clubs, and gymkhanas but is prohibited of doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the state is illustrated by the fact that an infringement of section 33A(1) by an establishment covered under the aforesaid provision would entail the owner being liable to be imprisoned for three years by virtue of section 33A(2). On the other hand, no such punishment is prescribed for establishments covered under Section 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Article 14 of the Constitution ofHigh Court, in our opinion, has rightly declined to rely upon the Prayas and Shubhadareport. The number of respondents interviewed was so miniscule as to render both the studies meaningless. As noticed earlier, the subsequent report submitted by SNDT University has substantially contradicted the conclusions reached by the other two reports. The situation herein was not similar to the circumstances which led to the decision in the case of Radice (supra). In that case, a New York Statute was challenged as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p.m. and 6 a.m., on the ground of (1) due process clause, by depriving the employer and employee of their liberty to contract, and (2) the equal protection clause by an unreasonable and arbitrary classification. The Court upheld the legislation on the first ground that the State had come to the conclusion that night work prohibited, so injuriously threatens to impairpeculiar and natural functions. Such work, according to the State, exposes women to the dangers and menaces incidental to night life in large cities. Therefore, it was permissible to enable the police to preserve and promote the public health and welfare. The aforesaid conclusion was, however, based on one very important factor which was thatlegislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health ofIn our opinion, as pointed out by the learned counsel for the respondents, in the present case, there was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality orare of the opinion that the State has failed to justify the classification between the exempted establishments and prohibited establishments on the basis of surrounding circumstances; or vulnerability. Undoubtedly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty bound to disclose the reasons for the ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality in the dance bars. Such a presumption is abhorrent to the resolve in the Preamble of the Constitution to secure the citizens of India.of status and opportunity and dignity of theThe State Government presumed that the performance of an identical dance item in the establishments having facilities less than 3 stars would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals; but would not be so in the exempted establishments. These are misconceived motions of a bygone era which ought not to beare undoubtedly bound by the principles enunciated by this Court in the aforesaid cases, but these are not applicable to the facts and circumstances of the present case. In Khoday Distilleries Ltd. (supra), it was held that there is no fundamental right inter alia to do trafficking in women or in slaves or to carry on business of exhibiting and publishing pornographic or obscene films and literature. This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab & Anr. Vs. Devans Modern Breweries Ltd. & Anr. (supra) dealt with liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority (supra) is completely unfounded because in that case endeavour of the State was directed towards prohibiting topless dancing in an establishment licensed to serve liquor. Similarly, Regina Vs. Bloom (supra) dealt with indecent performances in a disorderly house. Hence, this case will also not help the appellants. Therefore, we are not impressed with any of these submissions. All the activities mentioned above can be controlled under the existing regulations.119. We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families. In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case of Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi (Smt.) (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expressionof dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Sectionour 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 followsBar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.(3) Area of dance floor should be minimum 10 x 12 ft. i.e. 120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being