# STATE OF MAHARASHTRA & ANR v. INDIAN HOTEL & RESTAURANTS ASSN. & ORS

- **Citation:** [2013] 7 S.C.R. 654
- **Court:** Supreme Court of India
- **Decided:** 2013-07-16
- **Case number:** Civil Appeal No. 2705 of 2006
- **Bench:** Altamas Kabir, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-anr-v-indian-hotel-restaurants-assn-ors-29244
- **Pages:** 106

## Headnote

BOMBAY POLICE ACT, 1951:
ss. 33A and 33B - Prohibition on bar dancing in State
of Maharashtra - s.33-A prohibiting to hold performance of
dance of any kind or type in any eating house, permit room
or bear bar, but exempting the establishments covered uls
0
33-B from any such restriction - Held: A distinction, the
foundation of which is the classes of establishments and the
classes/kind of p~rsons, who frequent the establishments and
those wfJo own the establishments, cannot be supported under
the Constitutional philosophy -
The classification of
establishments covered u/ss 33A and 33B would not satisfy
E the test of equality -
The distinction is made on the grounds
of "classes of establishments" or "classes of persons, who
frequent the establishments" and not on the form of dance -
ss. 33A and 33B introduce an invidious discrimination which
cannot be justified under Art. 14 of the Constitution -
Yet at
F the same time, both kinds of establishments are to be granted
licenses and regμlated by the same restrictions, regulations
and standing provisions - It would be more appropriate that
the State Government re-examines the recommendations
made by the Committee and the suggestions made in para
G 123 of the judgment to bring about measures which should
ensure the safety and improve the working conditions of the
persons working as bar girls -
Constitution of India, 1950 -
Arts. 14, 19(i)(a), 19(1){g) and 21.
H
654
STATE OF MAHARASHTRA v. INDIAN HOTEL &
RESTAURANTS ASSN.
CONSTITUTION OF IND/A, 1950:
655
Art. 19(1)(g) read with Art. 14 - Prohibition on dance -
s.33-A of Bombay Police Act prohibiting dance of any kind
of type in any eating house, permit room or bear bar - Held:
A
State has failed to establish that the restriction is reasonable
8
or that it is in the interest of general public- Insertion of s.33A in the Bombay Police Act has led to closure of a large
number of establishments and unemployment of over seventy
five thousand woman workers -
The impugned legislation
has proved to be totally counterproductive and being ultra
vires Art.19(1)(g), cannot be sustained- Bombay Police Act,
C
1951 - ss. 33A- Convention on the Elimination of All Forms
of Discrimination Against Women (CEADAW) - Doctrine of
severability - Doctrine of reading down.
By amendment Act No. 35 of 2005, ss. 33-A and 33D
B were introduced into the Bombay Police Act, 1951. By
s.33-A, holding of a performance of dance, of any kind or
type, in any eating house, permit room or beer bar was
prohibited; and by ss.33-B it was provided that the
prohibition laid by s.33-A would not apply to the holding
E
of a dance performance in a drama theatre, cinema
theatre and auditorium; or sports club or gymkhana,
where entry is restricted to its members only, or a three
starred or above hotel or in any other establishment or
class of establishments, which, having regard to: (a) the
F
tourism policy of the Central or State Government for
promoting the tourism activities in the State; or (b) cultural
activities, the State Government may, by special or
general order, specify in this behalf. Further, violation of
s.33-A(1) was made punishable with a sentence of G
imprisonment up to 3 years and a fine of Rs. 2 lacs. This
led to closure of a large number of establishments and
loss of employment for about seventy-five thousand
women employed in the dance bars in various capacities
in the State. Writ petitions were filed in the High Court
H
656
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A contending that ss.33-A and 33-8 were violative of, inter
alia, Arts. 14 and 19(1)(a), 19(1)(g) and 21 of the
Constitution. The High Court declared s.33-A as ultra
vires Arts. 14 and 19(1)(g) of the Constitution of India.
B
Dismissing the appeal, the Court
HELD:
Per Surinder Singh Nijjar, J. (for CJI and for himself):
C
1.1. A distinction, the foundation of which is classes
of the establishments and classes/kind of persons, who
. frequent the establishments and those who own the
establishments cannot be s

## Text

_Characters 0–39,914 of 203,025. This is a partial read: ask again with offset=39914 for what follows._

A
B
c
[2013] 7 S.C.R. 654
STATE OF MAHARASHTRA & ANR.
v.
INDIAN HOTEL & RESTAURANTS ASSN. & ORS.
(Civil Appeal No. 2705 of 2006) ·
JULY 16, 2013
[ALTAMAS KABIR, CJI. AND SURINDER SINGH
NIJJAR, J.]
BOMBAY POLICE ACT, 1951:
ss. 33A and 33B - Prohibition on bar dancing in State
of Maharashtra - s.33-A prohibiting to hold performance of
dance of any kind or type in any eating house, permit room
or bear bar, but exempting the establishments covered uls
0
33-B from any such restriction - Held: A distinction, the
foundation of which is the classes of establishments and the
classes/kind of p~rsons, who frequent the establishments and
those wfJo own the establishments, cannot be supported under
the Constitutional philosophy -
The classification of
establishments covered u/ss 33A and 33B would not satisfy
E the test of equality -
The distinction is made on the grounds
of "classes of establishments" or "classes of persons, who
frequent the establishments" and not on the form of dance -
ss. 33A and 33B introduce an invidious discrimination which
cannot be justified under Art. 14 of the Constitution -
Yet at
F the same time, both kinds of establishments are to be granted
licenses and regμlated by the same restrictions, regulations
and standing provisions - It would be more appropriate that
the State Government re-examines the recommendations
made by the Committee and the suggestions made in para
G 123 of the judgment to bring about measures which should
ensure the safety and improve the working conditions of the
persons working as bar girls -
Constitution of India, 1950 -
Arts. 14, 19(i)(a), 19(1){g) and 21.
H
654
STATE OF MAHARASHTRA v. INDIAN HOTEL &
RESTAURANTS ASSN.
CONSTITUTION OF IND/A, 1950:
655
Art. 19(1)(g) read with Art. 14 - Prohibition on dance -
s.33-A of Bombay Police Act prohibiting dance of any kind
of type in any eating house, permit room or bear bar - Held:
A
State has failed to establish that the restriction is reasonable
8
or that it is in the interest of general public- Insertion of s.33A in the Bombay Police Act has led to closure of a large
number of establishments and unemployment of over seventy
five thousand woman workers -
The impugned legislation
has proved to be totally counterproductive and being ultra
vires Art.19(1)(g), cannot be sustained- Bombay Police Act,
C
1951 - ss. 33A- Convention on the Elimination of All Forms
of Discrimination Against Women (CEADAW) - Doctrine of
severability - Doctrine of reading down.
By amendment Act No. 35 of 2005, ss. 33-A and 33D
B were introduced into the Bombay Police Act, 1951. By
s.33-A, holding of a performance of dance, of any kind or
type, in any eating house, permit room or beer bar was
prohibited; and by ss.33-B it was provided that the
prohibition laid by s.33-A would not apply to the holding
E
of a dance performance in a drama theatre, cinema
theatre and auditorium; or sports club or gymkhana,
where entry is restricted to its members only, or a three
starred or above hotel or in any other establishment or
class of establishments, which, having regard to: (a) the
F
tourism policy of the Central or State Government for
promoting the tourism activities in the State; or (b) cultural
activities, the State Government may, by special or
general order, specify in this behalf. Further, violation of
s.33-A(1) was made punishable with a sentence of G
imprisonment up to 3 years and a fine of Rs. 2 lacs. This
led to closure of a large number of establishments and
loss of employment for about seventy-five thousand
women employed in the dance bars in various capacities
in the State. Writ petitions were filed in the High Court
H
656
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A contending that ss.33-A and 33-8 were violative of, inter
alia, Arts. 14 and 19(1)(a), 19(1)(g) and 21 of the
Constitution. The High Court declared s.33-A as ultra
vires Arts. 14 and 19(1)(g) of the Constitution of India.
B
Dismissing the appeal, the Court
HELD:
Per Surinder Singh Nijjar, J. (for CJI and for himself):
C
1.1. A distinction, the foundation of which is classes
of the establishments and classes/kind of persons, who
. frequent the establishments and those who own the
establishments cannot be supported under the
Constitutional philosophy so clearly stated in the
Preamble to the Constitution of India and the individual
D Articles prohibiting 'discrimination on the basis of caste,
colour, creed, religion or gender. The Preamble· to the
Constitution of India as also Arts. 14 to 21, as observed
in l.R. Coelho* form the heart and soul of the
Constitution. Taking away of these rights of equality by
· E any legislation would require clear proof of the
justification for such abridgment. [para 100) [738-E-H]
F
*l.R. Coelho (Dead) by LRs. Vs. State of T.N. 2007 (1)
SCR 706 = 2001 (2) sec 1- relied on.
1.2. Section 33A(1 )(a) of the Bombay Police Act, 1951
prohibits holding of a performance of dance, of any kind
or type, in any eating house, permit room or beer bar. This
is a complete embargo on performance of dances in the
establishment covered u/s 33A(1). Section 33A contains
G a non-obstante clause which makes the section stand
alone and absolutely independent of the Act and the rules.
Contravention of s. 33A(1) makes it a criminal offence and
on conviction offender is liable to punishment of 3 years.
On the other hand, the establishments covered .u/s 338
H
STATE OF MAHARASHTRA v. INDIAN HOTEL &
657
RESTAURANTS ASSN.
enjoy complete exemption from any such restrictions and
A
dance performances are permitted provided the
establishments com
1ply with the applicable statutory
provisions, Bye-Laws, Rules and Regulations. [para 98]
[736-F-H; 737-8-C]
1.3. The classification of the establishments covered
8
u/ss 33A and 338 would not satisfy the test of equality.
The distinction is made on the grounds of "classes of
establishments" or "classes of persons, who frequent the
establishments" and not on the form of dance. There is
no justification that a dance permitted in exempted C
institutions u/s 338, if permitted in the banned
establishment, would be derogatory, exploitative or
corrupting of public morality. Rather it is evident that the
same dancer can perform the same dance in the
exempted institution u/s 33-8 but is prohibited of doing
D
so in the establishments covered u/s 33A. There is no
rationale which would justify the conclusion that a dance
that leads to depravity in one place would get converted
to an acceptable performance by a mere change of venue.
The discriminatory attitude of the State is illustrated by
E
the fact that an infringement of s. 33A(1) by an
establishment covered under the said provision would
entail the owner being liable to be imprisoned for three
years by virtue of s. 33A(2). On the other hand, no such
punishment is prescribed for establishments covered u/
F
s 338. Such an establishment would merely lose the
licence. Such blatant discrimination cannot possibly be
justified on the criteria of reasonable classification under
Art. 14 of the Constitution. [para 100-101] (738-D-E, H;
739-A; 7 40-A-D]
G
State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa
& Ors. 1974 (1) SCR 771 = 1974 (1) SCC 19; E. V. Chinnaiah
Vs. State of A.P. & Ors. 2004 (5) Suppl. SCR 972 = 2005
(1) SCC 394; Budhan Chaudhry Vs. State of Bihar 1955
SCR 1045 = AIR 1955 SC 191; Lax mi Khandsari & Ors. Vs.
H
658
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A State of UP. & Ors. 1981 (3) SCR 92 = 1981 (2) SCC 600
- relied on.
8
Radice Vs. People of the State of New York 264 U.S. 292
(1924) - cited.
1.4. Once the respondents had given prima facie
proof of the arbitrary classification of the establishments
u/ss 33A and 338, it was duty of the State to justify the
reasonableness of the classification. The appellants have
failed to justify by acceptable evidence, inevitable
C consequences or sufficient materials that the restriction,
whether partial or complete, is in public interest and
contains the quality of reasonableness. There was little
or no material on the basis of which the State could have
concluded that dancing in the prohibited establishments
D was likely to deprave, corrupt or injure the public morality
or morals. [para 100-101 and 104] [738-H; 739-A, 8-C, DE; 743-E]
1.5. The so called distinction is based pureiy on the
basis of the class of the performer and the so called
E · superior class of audience. It cannot be presumed that the
class to which an individual or the audience belongs
brings with him as a necessary concomitant a particular
kind of morality or decency. The presumption which runs
F through ss. 33A and 338 that the enjoyment of same kind
of entertainment by the upper classes leads only to mere
enjoyment and in the case of poor classes it would lead
to immorality, decadence and depravity, cannot be
accepted. Morality and depravity cannot be pigeon-holed
by degrees depending upon the classes of the audience.
G The said presumption is also perplexing on the ground
that in the banned establishments even a non-obscene
dance would be treated as vulgar. On the other hand, it
would be presumed that in the exempted establishments
any dance is non-obscene. The underlying presumption
H at once puts the prohibited establishments in a
STATE OF MAHARASHTRA v. INDIAN HOTEL &
659
RESTAURANTS ASSN.
precarious position, in comparison to the exempted class
A
for the grant of a licence to hold a dance performance.
The presumption is elitist, which cannot be countenanced
under the egalitarian philosophy of the Constitution. Thus,
s~. 33A and 338 introduce an invidious discrimination
which cannot be justified under Art. 14 of the Constitution.
B
Yet at the same time, both kinds of establishments are to
be granted licenses and regulated by the same
restrictions, regulations and standing provisions. [para
102-103) [741-F-H; 742-A-C, E-F]
Charanjit Lal Chowdhury Vs. Union of India & Ors.
C
1950 SCR 869 =AIR 1951 SC 41; Ram Krishna Dalmia Vs.
Justice S.R. Tendolkar 1959 SCR 279 =AIR 1958 SC 538;
State of Uttar Pradesh Vs. Kaushailiya & Ors. 1964 SCR 1002
=AIR 1964 SC 416; and Shashikant Laxman Kale & Anr.
Vs. Union of India & Anr. 1990 (3) SCR 441 =1990
D
(4) sec 366 - referred to.
1.6. A perusal of the Objects and the Reasons would
show that the impugned legislation proceeds on a
hypothesis that different dance bars are being used as
E
meeting points of criminals and pick up points of the
girls. But the Objects and Reasons say nothing about
any evidence having been presented to the Government
that these dance bars are actively involved in trafficking
of women. Isolated examples would not be sufficient to
F
establish the connection of the dance bars covered u/s
33A with trafficking. Therefore, it cannot be said that the
ban has been placed for the protection of the vulnerable
women. [para 105) [743-G-H; 744-8-C]
1.7. The Legislature is free to recognize the degrees
G
of harm· and may confine its ~estrictions to those cases
where the need is deemed to be clearest. Further, the
State may direct its law against what it deems the evil as
it actually exists without covering the whole field of
H
660
SUPREME COURT REPORTS
(2013) 7 S.C.R.
A possible abuses, but such conclusion have to be
reached either on the basis of general consensus shared
by the majority of the population or on the basis of
empirical data. The State neither had the empirical data
to conclude that dancing in the prohibited establishment
B necessarily leads to depravity and corruption of public
morals nor was there general consensus that such was
the situ.ation. The three reports presented before the High
Court in fact have presented divergent view points. In the
instant case, the appellant has failed to give any details
c of any experience which would justify such blatant
discrimination, based purely on the class or location of
an establishment. [para 106] [744-D-G; 745-A]
Ram Krishna Dalmia Vs. Justice S.R. Tendo/kar
1959 SCR 279 =AIR 1958 SC 538; Mohd. Hanif Quareshi
D Vs. State of Bihar 1959 SCR 629 =AIR 1958 SC 731 -
referred to.
E
Joseph Patsone Vs. Commonwealth of Pennsylvania
232 U.S. 138 (1914) - cited.
1.8. The State has failed to justify the classification
between the exempted establishments and prohibited
establishments
on
the
basis
of surrounding
circumstances; or vulnerability. Undoubtedly, the
F legislature is the best judge to measure the degree of
harm and make reasonable classification but when such
a classification is challenged the State is duty bound to
disclose the reasons for the ostensible conclusions. In
the instant case, the legislation is based on an
unacceptable presumption that the so called elite i.e. rich
G and the famous would have higher standards of
decency, morality or strength of character than their
counter parts who have to content themselves with
lesser facilities of inferior quality dance bars. Such a
presumption is abhorrent to the resolve in the Preamble
H
STATE OF MAHARASHTRA v. INDIAN HOTEL &
661
RESTAURANTS ASSN.
to the Constitution to secure the citizens of India, A
"Equality of status and opportunity and dignity of the
individual". The State Government presumed that the
performance of an. identical dance item in the
establishments having facilities less than 3 stars would
be derogative to the dignity of women and would be likely B
to deprave, corrupt or injure public morality or morals;
but would not be so in the exempted establishments.
These are misconceived notions of a bygone era which
ought not to be resurrected. [para 107] [745-B-F]
1.9. The activities which are obscene or which are C
likely to deprave and corrupt those whose minds are
open to such immoral influences, cannot be
distinguished on the basis as to whether they are
performing in 5 star hotels or in dance bars. The judicial
conscience of this Court would not give credence to a D
notion that high morals and decent behaviour is the
exclusive domain of the upper classes; whereas vulgarity
and depravity is limited to the lower classes. Any
classification made on the basis of such invidious
presumption is liable to be struck down being wholly E
unconstitutional and particularly contrary to Art. 14 of the
Constitution of India. [para 108] (746-E-G]
Gaurav Jain Vs. Union of India 1997 (2) Suppl. SCR
105 = 1997 (8) SCC 114 - referred to.
F·
2.1. Upon analyzing the entire fact situation, the High
Court has rightly held that dancing would be a
fundamental right and cannot be excluded by dubbing
the same as res extra commercium. The State has failed
to establish that the restriction is reasonable or that it is G
in the interest of general public. The High Court noticed
that in the guise of regulation, the legislation has
imposed a total ban on dancing in the establishments
covered u/s 33A. [para 110] (747-E-G]
H
662
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
Narendra Kumar & Ors. Vs. Union of India & Ors. (1960)
2 SCR 375; and Maneka Gandhi Vs. Union of India & Anr.
1978 (2) SCR 621 = 1978 (1) SCC 248 -
referred to.
·2.2. There are already sufficient rules and regulations
8
and legislation in place which, if efficiently applied, would
control if not eradicate all the dangers to the society
enumerated in the Preamble and Objects and Reasons
of the impugned legislation. There is no material placed
on record by the State to show that it was not possible
to deal with the situation within the framework of the
C existing laws except for the unfounded conclusions
recorded in the Preamble as well the Objects and
Reasons. Sufficient power is vested with the Licensing
Authority to safeguard any perceived violation of the
dignity of women through obscene dances. [para 110
D and 116] [747-H; 748-A; 751-F-G; 752-B-C]
E
State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat
& Ors. 2005 (4) Suppl. SCR 582 = AIR 2006 SC 212 -
referred to.
2.3. From the Objects of the impugned legislation and
amendment itself, it is crystal clear that the legislation
was brought about on the admission of the police that it
is unable to effectively control the situation in spite of the
existence of all the necessary legislation, rules and
F
regulations. It cannot be said that the impugned
enactment is a form of additional regulation, as it was felt
that the existing system of licence and permits were
insufficient to deal with problem of ever increasing dance
bars. [para 117 and 119) [752-C-D; 753-F-G]
G
H
State of Bombay Vs. R.M.D. Chamarbaugwala & Anr.
1957 SCR 874 =AIR 1957 SC 699; Khoaay Distilleries Ltd.
& Ors. Vs. "State of Kamataka & Ors. 1994 (4) Suppl. SCR
477=1995 (1) SCC 574; and State of Punjab & Anr. Vs.
STATE OF MAHARASHTRA v. INDIAN HOTEL &
663
RESTAURANTS ASSN.
Devans Modern Breweries Ltd. & Anr. 2003 (5) Suppl. A
SCR 930 = 2004 (11) SCC 26 ...,. held inapplicable
New York State Liquor Authority.Vs. Dennis BELLANCA,
DBA The Main Event, Et Al. 452 I.IS. 714 (1981); Regina
Vs. Bloom 1961 3 W.L.R. 611 - cited.
B
2.4. ·The end result of the prohibition of any form of
dancing in the establishments covered uls 33A leads to
the only conclusion that these establishments have to
shut down. This is e.vident from the fact that since 2005,
most if not all the dance bar establishments have literally C
closed down. This has led to the unemployment of over
75,000 women workers. It has been brought on the record
that many of them have been compelled to take up
prostitution· out of necessity for maintenance of their
families. The impugned legislation has proved to be D
totally counterproductive and being ultra vires
Art.19(1}(g}, cannot be sustained. [para 120] [754-B-D]
2.5. It is not possible to read down the expression
"any kind or type" of dance by any person to mean E
dances which are obscene and derogatory to the dignity
of women. Such reading down cannot be permitted so
long as any kind of dance is permitted in establishments
covered u/s 338. [para 121] [754-F-G]
Government of Andhra Pradesh & Ors. Vs. P. Laxmi Devi , F
(Smt.) 2008 (3) SCR 330 = 2008 (4) SCC 720 -
referred to.
2.6. By applying the doctrine of severability, even if
s.338 is declared unconstitutional, the statute would still
retain the provision contained in s.33A which prohibits G
any kind of dance by any person in the establishments
covered u/s 33A. [para 122] [754-H; 755-A]
3.1. The Committee comprising of the Chairman of
AHAR, Public and Police Officials. and chaired by the
Principal Secretary (E.I.), Home Department, had H
664
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A
prepared a report and submitted the same to the State
Government. The State Government had in fact sent a
communication dated 16th July, 2004 to all Judicial
Magistrates and Police Commissioner to amend the rules
for exercising control on hotel establishments presenting
B dance programmes. It would be more appropriate that the
State Government re-examines the recommendations
made by the Committee and the suggestions made in
para 123 of the judgment to bring about measures which
should ensure the safety and improve the working
c conditions of the persons working 'as bar girls. As has
been observed by this Court in the case of Anuj Garg
instead of. putting curbs on women's freedom,
empowerment would be more tenable and socially wise
approach. This empowerment should reflect in the law
0
enforcement strategies of the State as well as law
modeling done in this behalf. In the instant case, the
restrictions in the nature of prohibition cannot be said to
be reasonable, inasmuch as there could be several lesser
alternatives available which would have been adequate
to ensure safety of women than to completely prohibit
E
dance. In fact, a large number of alternative steps could
be taken instead of completely prohibiting dancing, if the
real concern of the State is the safety of women. [para
123-124] [755-B-D; 756-E-H; 757-A]
F
Welfare Association, A.R.P., Maharashtra & Anr. Vs.
Ranjit P. Gohil & Ors. 2003 (2) SCR 139 = 2003 (9) SCC 358;
S.P. Mittal Vs. Union of India & Ors. 1983 (1) SCR729 =
(1983) 1 SCC 51; Kedar Nath Bajoria & Anr. Vs. The State
of West Bengal 1954 SCR 30; Municipal Corporation of the
G
City of Ahmedabad & Ors. Vs. Jan Mohammed Usmanbhai
& Anr. 1986 (2) SCR 700 =1986 (3) SCC 20; T.B. Ibrahim Vs.
Regional Transport Authority, Tanjore (1953] 4 SCR 290;
Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. Vs.
Union of India & Ors. 1981 (2) SCR 52 =AIR 1981 SC 344;
H State of Madras Vs. v: G. Row 1952 SCR 597 = AIR 1952 SC
STATE OF MAHARASHTRA v. INDIAN HOTEL &
665
RESTAURANTS ASSN.
196, B.P. Sharma Vs. Union of India & Ors. 2003 (2) Suppl.
A
SCR 684 = 2003 (7) SCC 309, M.R.F. Ltd. Vs. Inspector
Kera/a Govt. & Ors. 1998 (2) Suppl. SCR 632=1998 (8) SCC
227; M.J. Sivani & Ors. Vs. $fate of Kamataka & Ors. (1995)
6 SCC 289; State of Bihar & Ors. Vs. Bihar Distillery Ltd. &
Ors. 1996 (9) Suppl. SCR 479 =1997 (2) SCC 453; Kedar
B
Nath Singh Vs. State of Bihar 1962 Suppl. SCR 769 =AIR
1962 SC 955; Sakal Papers (P) Ltd; & Ors. Vs. The Union
of India (1962) 3 SCR 842; Anuj Garg & Ors. Vs. Hotel
Association of India & Ors. 2007 (12) SCR 991 = 2008 (3 )
SCC 1; Government of A.P. Vs. P.B. Vijayakumar & Anr. c
1995 (1) Suppl. SCR 462 = 1995 (4) SCC 520; Mis. Laxmi
Khandsari & Ors. Vs. State of U.P. & Ors. 1981 (3) SCR
92=1981 (2) SCC 600 Rustom Cavasjee Cooper Vs. Union
of India 1970 (3) SCR 530 = 1970 (1) SCC 248 Bharat
Bhawan Trost Vs. Bharat Bhawan Artists' Association & Anr.
0
2001 (2) Suppl. SCR 27 = 2001 (7) SCC 630; D.S. Nakara
& Ors. Vs. Union of India 1983 (2) SCR 165 = 1983 (1)
SCC 305 ; Sanjeev Coke Manufacturing Company Vs. Mis
Bharat Coking Coal Limited & Anr. 1983 (1) SCR 1000 =
1983 (1) SCC 147; Sodan Singh & Ors. Vs. New Delhi
. Municipal Committee & Ors. 1989 (3) SCR 1038 = 1989 (4)
E
sec 155 - cited
Consolidated Coke Co. Vs. Taylor 234 U.S.224 (1913);
Paris Adult Theatre I Et. Al Vs. Lewis R. Slaton, District
Attorney, Atlanta Judicial Circuit, Et. Al 413 U.S. 49 [1973] -
F
cited.
Per Altamas Kabir, CJI. (Supplementing):
1. The right to practise a trade or profession and the
right to life guaranteed under Art. 21 are, by their very G
nature, intermingled with each other. It would be better
to treat the cause than to blame the effect and to
completely discontinue the livelihood. of a large section
of women, eking out an ex!stence by dancing in bars,
who will be left to the mercy of other forms of exploitation.
H
666
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A Instead of generating unemployment, it may be wiser for
the State to look into ways and means in which
reasonable restrictions may be imposed on bar dancing,
but without completely prohibiting or stopping the same,
as suggested in para 123 of the main judgment. (para 4
B and 6) [757-G-H; 758-A-B; 759-A-B]
2. The State has to provide alternative means of
support and shelter to persons engaged in such trades
or professions, some of whom are trafficked from different
c parts of the country and have nowhere to go or earn a
living after coming out of their unfortunate circumstances.
A strong and effective support system may provide a
solution to the problem. [para 7) [759-B-C]
Case Law Reference:
D Per Nijjar,J.
1990 (3) SCR 441
cited
para 25
2003 (2) SCR 139
cited
para 26
E
1964 SCR 1002
held inapplicable para 30
1959 SCR 279
referred to
para 35
232 U.S. 138(1914)
referred to
para 35
F
234 U.S.224 (1913)
cited
para 36
264 U.S. 292 (1924)
cited
para 37
1959 SCR 629
referred to
para 38
1983 (1) SCR 729
cited
para 40
G
413 U.S. 49
cited
para 44
1954 SCR 30
cited
para 46
2005 (4) Suppl. SCR 582
referred to
para 49
H
1986 (2) SCR 700
cited
para 49
STATE OF MAHARASHTRA v. INDIAN HOTEL &
667
RESTAURANTS ASSN.
[1953) 4 SCR 290
cited
para 54
A
1957 SCR 874
held inapplicable para 55
1994 (4) Suppl. SCR 477
held inapplicable para 55
2003 (5) Suppl. SCR 930
held inapplicable para 56
B
452 U.S. 714 (1981)
held inapplicable para 56
1961 3 W.L.R. 611
cited
para 57
1981 (2) SCR 52
cited
para 58
1952 SCR 597
cited
para 61
c
2003 (2) Suppl. SCR 684
cited
para 61
1998 (2) Suppl. SCR 632
cited
para ~1
'
(1995) 6 sec 289
cited
para 63
D
1950 SCR 869
cited
para 65
1996 (9) Suppl. SCR 479
cited
para 66
2008 (3) SCR 330
cited
para 68
·._~
E
1962 Suppl. SCR 769
cited
para 69
2007 (1) SCR 706
relied on
para 72
(1962) 3 SCR 842
cited
para 72
2007 (12) SCR 991
cited
para 72
F
1981 (3) SCR 92
cited
para 73
1995 (1) Suppl. SCR 462
cited
para 74
1981 (3) SCR 92
relied on
para 76
G
(1960) 2 SCR 375
cited
para 77
1970 (3) SCR 530
cited
para 79
1978 (2) SCR 621
cited
para 79
2001 (2) Suppl. SCR 27
cited
para 79
H
668
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
1983 (2) SCR 165
cited
para 81
1983 (1) SCR 1000.
cited
para 83
1989 (3) SCR 1038
cited
para 88
1955 SCR 1045
cited
para 92
B
1974 (1) SCR 771
cited
• para 98
2004 (5) Suppl. SCR 972
cited
. para 99
C
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D
2705 of 2006.
From the Judgment & Order dated 12.04.2006 ofthe High
Court of Judicature at Bombay in W.P. Nos. 2450, 2052, 233S
& 2587 of 2005.
WITH
C.A. Nos. 2704 of 2006 & 5504 of 2013
.
.
Shekhar Naphade, Mukul Rohatgi, Anand Grover, Dr.
E
Rajeev Dhawan, Ravindra Adsure, Subhangi Tuli, Asha
Gopalan Nair, Sanjay Kharde, Preshit V. Surshe, Veena
Thadani, Satyajit Saha, Prasenjit Keswani, Vishal Thadani,
Sourabh Kripal, V.D. Khanna, Meenakshi Arora, Aparna Bhat,
Rajkumari 8., Upasana G., Nikhil Nayyar, Tripti Tandon,
F
Amritananda Ch., Naveen R. Nath, Manoj K. Mishra, Sanjay K.
Visen, Shiv Pati B. Pandey, Venkateswara Rao Anumolu,
Vishwajit Singh, Satyajit A. Desai, Somanath Padhan, Anagha
S. Desai, Kamini Jaiswal, Sunil Kumar Verma, Chander
Shekhar Ashri for the Appearing parties.
G
The Judgments of the Court was delivered by
H
SURINDER SINGH NIJJAR, J. 1. Leave granted in SLP
(C) No.14534 of 2006.
2. These civil appeals seek to challenge common
STATE OF MAHARASHTRA v. IND1AN HOTEL &
669
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
judgment and final order dated 12th April, 2006 in Writ Petition
A
No.2450 of 2005, W.P. No.2052 of 2005, W.P.No.2338 of
2005 and W.P.No.2587 of 2005 passed by the High Court of
Judicature at Bombay, whereby Section 33A of the Bombay
Police Act, 1951 as inserted by the Bombay Police
(Amendment) Act, 2005 has been declared to be ultra vires
B
Articles 14 and 19(1)(g) of the Constitution of India.
Summary of Facts -
3. Brief facts leading to the filing of the aforesaid writ
petitions are -
C
The Bombay Police Act, 1951 (hereinafter 'the Act') was
enacted in the year 1951 with the object of consolidating and
amending the law relating to the regulation of the exercise of
powers and performance of the functions by the State 0
Government for maintenance of public order. Section 33 of the
Act authorises the State Government to frame rules regulating
places of public amusement and entertainment. By virtue of
Section 33 of the Act, the "Rules for Licensing and Controlling
Places of Public Amusement (other than Cinemas) and
Performances for Public Amusement including Me/as &
E
Tamashas, 1960" (hereinafter 'the Rules') were enacted to
regulate and maintain discipline in places of public amusement,
melas etc.
4. In 1986, orchestra and dance in hotels was permitted
F
to be performed pursuant to the Rules and such institutions
functioned under terms and conditions laid down therein.
However, several cases relating to violation of the terms and
conditions of performance licences came to be registered. It
is claimed that 20,196 cases were registered under Section
G
33(w), 110 and 117 of the Act from the year 2000 till 2005. Also,
various cases of minor girls being rescued from dance bars
were reported during the said period 2002-2005. The
appellants have referred to the case histories from the
H
670
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A Government Special Rehabilitation Centre for Girls (Special
Home) of 10 girl children rescued from such establishments
under Immoral Traffic (Prevention) Act, 1956 by Mumbai Police,
which according to the appellants, correctly depict the prevailing
situation.
B
c
D
The Government of Maharashtra, Home Department, on
10th December, 2002 passed resolution No. REH 012002/
153/SE-5, noting therein :
"It has come to notice that prostitution rackets are being
run through pick up points in hotel establishments in which
dance programmes are being conducted (Dance Bars)
and that dance forms being presented therein are horrid
and obscene and that criminals are being sheltered in such
hotels. Such undesirable practices going on in hotel
establishments have an adverse effect on society."
It was resolved to form a committee to make suggestions
for amending the rules to deal with:
(a)
Remedial measures to check other undesirable
E
practices going on in hotel establishments
presenting dance programmes.
F
G
H
(b)
To prevent prostitution in hotel establishments
(c)
Remedial measures to see that criminals are not
sheltered in hotel establishments;
(d)
To frame a code specifying what type of dance
forms should be presented in hotel establishments.
(e)
Creating a roving squad to check undesirable
practices in hotel establishments and take strict
action against owner of those establishments.
5. Pursuant to the aforesaid resolution, the Committee
submitted its recommendations which were incorporated and
STATE OF MAHARASHTRA v. INDIAN HOTEL &
671
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
circulated to all the concerned authorities through the letter of A
the Home Department No. REH 012002/153/SB-5 dated 16th
July, 2004. In this letter, the suggested regulations were
summarized as follows:
a.
There should be restrictions on the attire of the
8
dancers.
b.
Dancing area must have a railing 3 feet high
around it, and customer seats should be at least 5
feet away from the railing.
c.
Dance floor to be of dimension of 10 x 12 ft so not
more than 8 dancers can dance simultaneously.
c
d.
Customer rewards for dancing are to be routed
through management of the establishment and D
customers are banned from going near the dancers
or "showering money".
e.
Names of dancers are to be registered with the
establishment, a record kept of their employment,
including details of identity/citizenship and place of E
residence.
6. This letter instructed all Judicial Magistrates and Police
Commissioners to implement these recommendations with
immediate effect.
7. On 6th August, 2004 the Chairperson of the
Maharashtra State Commission for Women wrote to the State
Government about the ongoing racketeering to lure girls to work
in dance bars and their consequent acts of prostitution and
immoral trafficking stating:
F
G
"Number of rackets indulging into physical and financial
exploitation of girls working in dance bars by forcibly
bringing them into this profession are found to be
increasing alarmingly. In the metropolis of Mumbai, the H
A
B
c
D
672
SUPREME COURT REPORTS
[2013) 7 S.C.R.
problems of the bar girls have acquired grave dimensions
and have resulted even into death of many bar girls. These
women are forcibly induced into prostitution leading to total
destruction of their life." ....
Further
"Most of the girls working in Dance Bars of Maharashtra
State do not hail from State of Maharashtra, but come from
other States."
"In the future this problem in all the probability would spoil
our social health by acquiring increasingly grave
dimensions, not confined only to Mumbai but extending to
the National and even International levels."
8. The letter went on to recommend a ban on such
establishments by stating:
"I therefore, request you that the system of issuing permits
E
to the Bar Girls by various departments of Government
should be stopped forthwith, thereby ·relieving the women
from their physical, sexual and financial exploitation in the
future."
9. According to the appellant, the seriousness of the issues
F
involved is well documented of which the Home Department
was fully aware. The material available before the Home
Department was as under:
a.
Copies of case history of 1 O girl children rescued
G
from dance bar(s) under Immoral Traffic
(Prevention) Act, 1956.
H
b.
Copies of complaints of victims' families against
illicit relations with bar dancers.
C.
Copies of complaints of Social Organizations
STATE OF MAHARASHTRA v. INDIAN HOTEL &
673
RESTAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
against dance bars.
A
d.
Copies of FIRs of cases registered in relatio.n to
dance bars.
e.
Summary of cases registered under the Immoral
Traffic (Prevention) Act, 1956, u/s 294 IPC, u/s
33(w) & 110 of Bombay Police Act, 1951 during the
period 2000~2005 regarding dance bars.
10. Apart from this, a study of the soci~conomic situation
B
and rehabilitation needs of the women in dance bars was c
conducted by PRAYAS (a field action project of the Tata Institute
of Social Sciences) in 2005. This study pointed out the relevant
facts regarding exploitation of minor girls in dance bars. The
study also pointed out that there was presence of the element
of human trafficking in the entir~ process; and that the o
environment of the dance bars was found to have negative
impact on the physical and mental health of the rpinor girls. The
study also pointed out that the atmosphere in the dance bars
increased the vulnerability of the minor children to sexual
exploitation. It is also the case of the appellants that independent
E
of registration of offences under Bombay Police Act and PITA
Act as well as IPC, several complaints had been received from
various segments of society urging the State Government to
take steps for closure of the dance bars by legislative action.
11. Taking into consideration the aforesaid material, the
F
members of the Maharashtra Legislative Assembly expressed
deep concern over the ill effects of dance bars on youth and
dignity of women. lhe Assembly further felt that the existing
measures were insufficient to tackle the subject. Just at that
time, a 'Call Attention Motion' was tabled by Shri Vivek Patil
G
in the State Legislative AssembJy on 30th March, 2005. A
detailed reply was given by Shri R~R. Patil, Hon'bfe Dy. Chief
Minster to the same, on 21st July, 2005. Taking stock of the
entire situation, the State Government came to a tentative
opinion that performance of dances in eating houses, permit
H
674
SUPREME COURT REPORTS
[2013) 7 S.C.R.
A rooms or beer bars in an indecent manner is derogatory to the
dignity of women and is likely to deprave, corrupt and/or injure
public morality. It was evident on the basis of the material
available to the Government that permit rooms or beer bars
licensed under the relevant rules, were indulging ih exploitation
B of women by permitting the performance of dances in an
indecent obscene or vulgar manner. The Government, therefore,
considered it expedient to prohibit such dance performances
in eating houses or permit rooms or beer bars.
12. It was emphasised that even prior to the aforesaid
C decision, the attention of the Government had been invited to
mushrooming growth of illegal dance bars and their ill- effects
on the society in general, including ruining of some families.
The dance bars were also used as meeting points by criminals
and pick up joints of girls indulging in immoral activities. Young
D girls desirous of earning· easy money were being attracted to
such dance bars and getting involved in immoral activitieS'. The
decision was, therefore, taken by the State Government to
prohibit performance of dance in eating houses or permit rooms
or beer bars by suitably amending the Bombay Police Act,
E 1951.
13. The State Government took a conscious decision upon
consideration of the various factors to add Sections 33A and
33B to the Bombay Police Act. The necessary amendment was
F introduced in Maharashtra Legislative Assembly on 14th July,
2005. The Bill was passed by the Legislative Assembly on 21st
July, 2005 and by the Legislative Council on 23rd July, 2005.
The amended Act No. 35 of 2005, incorporating Sections 33A
& 33B in the Bombay Police Act, 1951, came into force after
G receiving the assent of the Governor of the Maharashtra by
publishing in the Maharashtra Gazette on 14th August, 2005.
Writ Petitions before the High Court of Bombay
14. The Amendment to the Bombay Police Act of 1951,
H introducing Sections 33A and 33B, was challenged as being
STATE OF MAHARASHTRA v. INDIAN HOTEL &
675
RESTAURANTS ASSN. [SURINOER SINGH NIJJAR, J.]
unconstitutional in several writ petitions before the High Court A
of Bombay; which are tabulated as under:
Writ Petition Number
Party
WP 2450/2005
Indian Hotel and Restaurants Owners
Association, an Association of various B
hotel owners and bar owners and/or
conductors of the same, who carry on
business of running restaurants and
bars in Mumbai.
c
WP 2052/2005
Bharatiya Bar Girls Union, a registered
trade union claiming a membership of
5000, whose members work as bar
girls in different parts of Maharashtra.
D
WP 2338/2005
The Parties in this petition are a group
of six petitioners, who are women's
organizations working in the field of
women's development.
E
WP 2587/2005
The· 1st petitioner is a trust registered
under the Public Trust Act, working with
sex workers in the Malvani area of
Malad in Mumbai. The 2nd petitioner is
the Ekta Self Group which consists of F
1 O bar dancers.
WP 1971/2005
Criminal WP The petitioner is the
Association of Dance Bar owners duly
registered under the Trade Unions Act, G
and have as their members 344 dance
bars.
WP 6930-6931/2005
Proprietors of two establishments who
are affected by the amendments to the
Police Act.
H
676
SUPREME COURT REPORTS
[2013] 7 S.C.R.
A
WP 5503-5504/2005 Proprietors of two establishments who
are affected by the amendments to the
Police Act.
B
c
D
E
F
G
H
It was contended:
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 338 are arbitrary under Article 14
as they provide for different standards of morality
STATE OF MAHARASHTRA v. INDIAN HOTEL &
677
RES:rAURANTS ASSN. [SURINDER SINGH NIJJAR, J.]
to institutions with similar activities and that the
A
activities in S. 33A establishments are less
obscene but nonetheless the classification bears
no nexus to the object of the Amendment.
That S. 33A is violative of Article 15 on the basis
of gender discrimination as the dancers are mainly
women.
That there is violation of Article 19 (1)(a) as dance
B
is a form of expression and that the impugned
enactment is ari unreasonable restriction and it is
C
not by protected by Article 19(2).
That there ls an unreasonable restriction on right to
freedom of profession as the State Government
permitted and granted licenses for running such o
establishments being Res Commercium and that
it deprives the bar owners of their right to carry on
business and bar dancers the right to carry on their
. profession.
That right to life under Article 21 is infringed as right
to life includes right to livelihood and that the State
has not provided for any rehabilitation.
15.