# THE STATE OF UTTAR PRADESH v. KAUSHALIYA AND OTHERS

- **Citation:** [1964] 4 S.C.R. 1002
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo, J. C. Shah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-v-kaushaliya-and-others-3031
- **Pages:** 13

## Headnote

Suppression of Immoral Traffic in Women and Girls Act,
1956 (104 of 1956), s. 20-"0n receiving information", meaning
of-Whether information could be from any source.
Constitution of India, Art. 14-Whether Suppression of Immoral Traffic in Women Act, 1956, s. 20 gives Magistrate uncanalised power-Article 19-Whether s. 20 a reasonable restriction.
The respondents in the above 6 appeals are alleged to be pr<>-
stitutes carrying on their trade in Kanpur. On receiving
information from the Sub-Inspector of Police who is not a Special
Police Officer, the City Magistrate issued notices to the respondents:
under s. 20(1) of the Suppression of Immoral Traffic in Women
and Girls Act, 1956 to show cayse why they should not be required
to remove themselves from the
place where they were residing.
The respondents filed their objections claiming that the
proceedings
were
not
legally
maint<iinable.
The
Magistrate
repelled the objections. Their revision petitions were dismissed by
the Additional Sessions Judge. The High Court allowed their revision on the ground that s. 20 of the Act offended Arts. 14 and
19(1)(d)(e) of the Constitution of India.
The Stale appealed to
this Court on certificates granted by the High Court.
Before this Court it was contended that the information received by the Magistrate must be information received from a special
police officer designated under s. 13 of the
Act.
The next contention was that in as much under s. 20 the Magistrate acted in
his executive capacity, his powers were uncanalized, he is conferred
with power capable of discriminating between prostitute and prostitute and he could interfere on flimsy grounds in the lives of respectable woman and that the section offended against Art. 14. It was
further contended that s. 20 imposed an unreasonable restriction on
girls and women leading a life of prostitution and hence it violated
Art. 19(\)(d) and (e).
Held: (i) If the Legislature intended to confine the expression
"information" only to that given by a special police officer, it
would have specifically stated so in the section. The omission is a
clear indication that a particular source of information is not
material for the application of the section.
Giving the rational
meaning to the expression
"on receiving information" it is clear
that information may be from any source.
(ii) The Act discloses a clear policy affording a real guidance
for the 1fagistrate to decide the two questions which he is called
upon to adjudicate under s. 20 of the Act.
He functions as
a court and decides the said t\vo questions after giving full opportu-
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'I S.C.R.
SUPREME COURT REPORTS
1003
nity to the alleged prostitute to respresent her case and examine
her evidence. His decision is subject to revision by the
Sessions
Court or the High Court as the case may be. In the circumstances
it is not possible to say that uncanalized power is conferred on the
Magistrate as an executive authority to decide the fate of an
alleged prostitute in an arbitrary manner.
(iii) It is well settled that Art. 14 does not prohibit reasonable
classifications for the purpose of legislation and a law will not
infringe Art.
14 if the classification is founded on an intelligible
differentia and the said differentia has rational relation to the object
to be achieved by the said law. There are pronounced and real
difference Between a woman who is a prostitute and one who
is not and bet\.veen a prostitute who does not demand in public
interest any restriction on her movements and a prostitute whose
action in public places call for the imposition of restriction on her
movement and even deportation.
The difference between these
classes of prostitutes has a rational relation to the object sought to
be achieved by the Act. Section 20 in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the
second category of prostitutes or to deport such of them as the
peculiar methods of their operation in an area may demand. S

## Text

1963
Oclober l
1002
SUPREME COURT REPORTS
(1964]
THE STATE OF UTTAR PRADESH
v.
KAUSHALIYA AND OTHERS
(P. B. GAJENDRAGADKAR, K. SUBBA RAO, K. N. WANCHOO,
J. C. SHAH AND RAGHUBAR DAYAL, JJ.)
Suppression of Immoral Traffic in Women and Girls Act,
1956 (104 of 1956), s. 20-"0n receiving information", meaning
of-Whether information could be from any source.
Constitution of India, Art. 14-Whether Suppression of Immoral Traffic in Women Act, 1956, s. 20 gives Magistrate uncanalised power-Article 19-Whether s. 20 a reasonable restriction.
The respondents in the above 6 appeals are alleged to be pr<>-
stitutes carrying on their trade in Kanpur. On receiving
information from the Sub-Inspector of Police who is not a Special
Police Officer, the City Magistrate issued notices to the respondents:
under s. 20(1) of the Suppression of Immoral Traffic in Women
and Girls Act, 1956 to show cayse why they should not be required
to remove themselves from the
place where they were residing.
The respondents filed their objections claiming that the
proceedings
were
not
legally
maint<iinable.
The
Magistrate
repelled the objections. Their revision petitions were dismissed by
the Additional Sessions Judge. The High Court allowed their revision on the ground that s. 20 of the Act offended Arts. 14 and
19(1)(d)(e) of the Constitution of India.
The Stale appealed to
this Court on certificates granted by the High Court.
Before this Court it was contended that the information received by the Magistrate must be information received from a special
police officer designated under s. 13 of the
Act.
The next contention was that in as much under s. 20 the Magistrate acted in
his executive capacity, his powers were uncanalized, he is conferred
with power capable of discriminating between prostitute and prostitute and he could interfere on flimsy grounds in the lives of respectable woman and that the section offended against Art. 14. It was
further contended that s. 20 imposed an unreasonable restriction on
girls and women leading a life of prostitution and hence it violated
Art. 19(\)(d) and (e).
Held: (i) If the Legislature intended to confine the expression
"information" only to that given by a special police officer, it
would have specifically stated so in the section. The omission is a
clear indication that a particular source of information is not
material for the application of the section.
Giving the rational
meaning to the expression
"on receiving information" it is clear
that information may be from any source.
(ii) The Act discloses a clear policy affording a real guidance
for the 1fagistrate to decide the two questions which he is called
upon to adjudicate under s. 20 of the Act.
He functions as
a court and decides the said t\vo questions after giving full opportu-
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I-
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'I S.C.R.
SUPREME COURT REPORTS
1003
nity to the alleged prostitute to respresent her case and examine
her evidence. His decision is subject to revision by the
Sessions
Court or the High Court as the case may be. In the circumstances
it is not possible to say that uncanalized power is conferred on the
Magistrate as an executive authority to decide the fate of an
alleged prostitute in an arbitrary manner.
(iii) It is well settled that Art. 14 does not prohibit reasonable
classifications for the purpose of legislation and a law will not
infringe Art.
14 if the classification is founded on an intelligible
differentia and the said differentia has rational relation to the object
to be achieved by the said law. There are pronounced and real
difference Between a woman who is a prostitute and one who
is not and bet\.veen a prostitute who does not demand in public
interest any restriction on her movements and a prostitute whose
action in public places call for the imposition of restriction on her
movement and even deportation.
The difference between these
classes of prostitutes has a rational relation to the object sought to
be achieved by the Act. Section 20 in order to prevent moral decadence in a busy locality, seeks to restrict the movements of the
second category of prostitutes or to deport such of them as the
peculiar methods of their operation in an area may demand. Section 20 therefore does not offend Art. 14.
Begum v. State, A.LR. 1963 Born. 17 and Shama Bai v. State
of U. P.
A.LR. 1959 All 57.
{iv) The reasonableness of a restriction depends upon the
value of life in a society, the circumstances obtaining at a particular point of time when the restriction is imposed, the degree
and urgency of the evil sought to be controlled and similar others.
The vice of prostitution has to be controlled and regulated and one
of the objects of the Act is to control the growing evil of prostitution in public places.
The restrictions placed by s. 20 are certainly in the interest of the general public and as the imposition of
the restriction is done through a judicial process on the basis of a
clearly disclosed policy the said restrictions are reasonable.
Chintaman Rao v. State of Madhya Pradesh, [1950] S.C.R.
759 and State of Madras v. V. G. Raw, [1952] S.C.R. 597.
( v) Once it is held that the activities of a prostitute in a particular
area, having regard to the conditions obtaining therein, arc so subversive of public morals and so destructive of public health that
it is necessary in public interest to deport her from that place,
there is no reason why the restriction should be held to be unreasonable.
The decision of the Bombay High Court in Begum v.
State, is not correct to the extent it holds that the restriction
under s. 20 encroach upon the fundamental right guaranteed under
~
19(1)(;!) and (e). Those a;e reasonable restrictions imposed
1n public interest and do not infringe the fundamental rights
under Art. 19(1)(d) & (e) of the Constitution.
CRIMINAL APPELLATE Jmuso1cnoN : Criminal •Appeals
Noo. 21 to 26 of 1%2.
1963
State of
Uttar Pnulesh
v.
Kaushaliya
and others
1963
State of
Uttar Pradesh
v.
Kaushaliya
end others
Subba Rao/.
lOOi
SUPREME COURT REPORTS
[1964]
Appeals from the judgment and order dated November 17, 1961, of the Allahabad High Court in Criminal Revision nos. 322, 323, 324, 611, 612 and 613 of 1961.
C. B. Agarwala and C. P. Lal, for the appellant (in
all the appeals).
/. P. Goyal, for the respondents (in Cr. A. Nos.
21-24 and 26 of 1962)-
0ctober 1, 1963. The Judgment of the Court was delivered
by
SDBBA RAo J.-These six appeals filed by certificates
granted by the High Court of Judicature at Allahabad raise
the question of the vires of s. 20 of the Suppression of
Immoral Traffic in Women and Girls Act, 1956 (10'4 of
1956), hereinafter called the Act.
The relevant facts may be briefly stated. The re>pondents are alleged to be prostitutes carrying on their trade
in the City of Kanpur. On receiving information from
the Sub-Inspector of Police, who is not a Special Police
Officer, the City Magistrate, Kanpur, issued notices to the
respondents under s. 20(1) of the Act to show cause why
they should not be required to remove themselves from the
places where they were residing and be prohibited from
re..:ntering them. The respondents received the notices
:ind filed objections claiming that the proceedings were not
legally maintainable. The learned City Magistrate repelled the said objections. Against the orders of the Magistr:ue the respondents went up in revision to the Additional
Sessions Judge Kanpur, but the same were dismissed. Thereafter the respondents preferred revisions to the High Court
of Judicature at Allahabad and the said High Court allowed the revision petitions and set aside the proceedings
pending against the respondents in the Court of the City
Magistrate, Kanpur. The High Court held that s. 20 of
the Act abridged the fundamental rights of the respondents under Art. 14 and sub-els.
( d) and ( e) of Art.
19(1) of the Constitution. After obtaining certificates for
leave to appeal from the High Court, the present appeals
have been preferred by the State.
As the argument turns upon the provisions of s. 20
of the Act, it will be convenient at the outset to read it~:
Section 20. ( 1) A. Magistrate on receiving information that any woman or girl residing in or frequentr
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4 S.C.R.
SUPREME COURT REPORTS
1005
ing any place within the local limits of his jurisdiction is a prostitute, may record the substance of the
information received
and issue a notice to such
woman or girl requiring her to appear before the Magistrate and show cause why she should not be required to remove herself from the place and be prohibited from re-entering it.
(2) Every notice issued under sub-section (1) shall
be accompanied by a copy of the record aforesaid and
the copy shall be served alongwith the notice on
the woman or girl against whom the notice is issued.
(3) The Magistrate shall, after the service of the
notice referred to in sub-section
(2), proceed to inquire into the truth of the information received, and
after giving the woman or girl an opportunity of adducing evidence, take such further evidence as he
thinks fit, and if upon such inquiry it appears to him
that such woman or girl is a prostitute and that it is
necessary in the interests of the general public that
such woman or girl should be required to remove
herself therefrom and be prohibited from re-entering
the same, the Magistrate shall, by order in writing
communicated to the woman or girl in the manner
specified therein, reqnire her after a date (to be specified in the order) which shall not be less than seven
days from the date of the order, to remove herself
from the place to such place whether within or without the local limits of his jurisdiction, by such route
or routes and within such time as may be specified
in the order and also prohibit her from re-entering
the place without the permission in writing of the
Magistrate having jurisdiction over such place.
The first
question raised
is whether the information received enabling a Magistrate under s. 20 of
the Act to make the enquiry provided . thereunder
should be only from a special police officer designated
under s. 13 of the Act. Section 13 of the Act says that
there shall be for each area to be specified by the State
Government in this behalf a special police officer appointed by or on behalf of that Government for dealing with
ofknce~ under this Act in that area. The post of speciai
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subba Rao f.
1963
State of
Uttar Pradesh'
v.
Kaushaliya
anti others
Subba Rao f.
1006
SUPREME COURT REPORTS
[1964)
police officer is created under the Act for dealing with
offences under the Act, whereas s. 20 does not deal with
offences. That apart, th~ expression used in s. 20, namely,
"on receiving information" is not expressly or by necessary implication limited to information received from a
special police officer. If the Legislature intended to confine the expression "information" only to that given by
a special police officer, it would have specifically stated
so in the section. The omission is a clear indication that
a particular source of information is not material for the
application of the section. There is an essential distinction
between an investigation and arrest in the matter of offences and information to the Magistrate : the former, when
dealing with women, has potentialities for grave mischief and, therefore, entrusted only to specific officers,
while mere giving of information would not have such
consequences, particularly when, as we would indicate
later, the information received by the Magistrate would
only start the machinery of a judicial enquiry. We therefore, hold, giving the natural meaning to the expression
"on receiving information", that "information" may be
from any source.
The next question is whether s. 20 of the Act offends
Art. 14 of the Constitution. It is stated that the power
conferred on the Magistrate under s. 20 of the Act is an uncanalized and uncontrolled one, that he acts thereunder
in his executive capacity, that the said
section enables
him to discriminate between prostitute and prostitute in
the matter of restricting their movements and deporting
them to places outside his jurisdiction, and that it also enables him on flimsy and untested evidence to interfere with
the lives of respectable women by holding them to be prostitutes and, therefore, it violates Art. 14 of the Constitution.
So stated, the argument appears to be plausible,
but a closer scrutiny of the section and the connected sections not only reveals a clearcut policy but also the existence of effective checks against arbitrariness.
Let us at
the outset scrutinize the provisions of the Act. The preamble of the Act shows that the Act was made to provide
in pursuance of the International Convention signed at
New York on May 9, 1950, for the suppression of immoral
traffic in women and girls.
The short title of the Act
/'>
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4 .S.C.R.
SUPREME COURT REPOJtTS
1007
says that the Act may be called "The Suppression of Immocal Traffic in Women and Girls Act, 1956". Though
the preamble as well as the short title shows that the Act
was intended to prevent immoral traffic in women and
girls, the other sections of the Act indicate that it was not
the only purpose of the Act. Section 2(b) defines "girl"
to mean a female who has not completed the age of
twenty-one, s. 2(j), "woman" to mean a female who has
completed the age of 21 years, s. 2( e), "prostitute" to
mean a female who offers her body for promiscuous sexual intercourse for hire, whether in money or in kind,
and s. 2(f), "prostitution" to mean the act of a female offering her body for promiscuous sexual intercourse for
hire, whether in money or in kirid. There are provisions
in the Act for punishing men who run brothels and who
procure girls and women for prostitution, for punishing
women and girls who seduce or solicit for the purpose of
prostitution in public places, for placing the rescued women and girls in detention in protection homes, for closure of brotl1els and eviction of offenders from premises,
for restricting the movements of prostitutes and even for
deporting them to places outside the jurisdiction of the
Magistrate, Secion 7(1) provides for the punishment of a
prostitute, if she carries on prostitution in any premises
which are within a distance of two hundred yards of any
place of public religious worship, educational institution,
hostels, hospitals, nursing home or such other public place
or any kind notified in that behalf by the Commissioner
of Police or the District Magistrate, as the case may be.
Section 8 prohibits seducing or soliciting for purpose of
prostitution in any public place or within sight of, and in
such manner as to be seen or heard from, any public place,
whether from within any building or house or not, and
makes such soliciting or seducing an offence under the Act.
Section 18 provides for the closure of brothels and eviction of
offenders from the premises, if such premises are within a distance of two hundred yards from a public place mentioned
in s. 7 ( 1) and are used or run as a brothel by any person
or used by prostitutes for carrying on their trade. The Act
was con~eived to serve a public social purpose, viz., to
suppress immoral traffic in women and girls, to rescue
falkn women and girls and to prevent deterioration in
1963
Sl/Jle of
Uttar Pradesh
v.
Kaushaliy.
and others
Subh« &lo /.
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subba Rao/.
•
1008
SUPREME COURT REPORTS
[1964]
public morals. The Act clearly defines a "prostitute", and
gives definite indications from which places
prostitutes
should be removed or in respect whereof their movements
should be restricted.
With this policy in mind, let us now give close look
to the provisions of s. 20(1) of the Act. The following
procedural steps are laid down in s. 20 of the Act: ( 1)
the enquiry is initiated by a Magistrate on his receiving
the requisite information that a woman a girl is a prostitute; (2) he records the substance of the information;
(3) he gives notice to the woman or girl to show cause;
( 4) he sends, along with the notice, a copy of the record;
(5) he shall give the woman or girl an opportunity to adduce evidence on two points, namely, (i) whether ihe is
a prostitute, and (ii) whether in the interests of the general public she should be required to remove herself from
the place where she is residing or which she is frequenting; (6) the Magistrate shall give his findings on the said
questions, and on the basis thereof, he makes the appfopriate order; and (7) the disobedience of the order entails
punishment of fine.
It is argued that the enquiry is not in respect of "offences", though disobedience of an order made thereunder may entail punishment of fine, and, therefore, the
order is one made in an administrative capacity. The expression "Magistrate" has been defined to mean a District
Magistrate, a Sub-Divisional Magistrate, a Presidency Magistrate or a Magistrate of the first class specially empowered by
the State Government, by notification in the Official Ga'.!\ette,
to exercise jurisdiction under this Act.
The definition
shows that special jurisdiction is conferred upon a Magistrate of comparatively high status who can safely be relied
upon to discharge the onerous and delicate duties inher,
ent in such jurisdiction. The jurisdiction -under s. 20 is
not conferred on such a Magistrate as a persona designata
but is to be exercised by him in his capacity as a Magistrate functioning within the limits of his territorial jurisdiction. The procedure prescribed thereunder, which we
have analysed earlier, approximates, as nearly as possible,
to that of a judicial enquiry. The enquiry starts on information; notice, along with a copy of the record, is given
to the alleged prostitute; she is given an opportunity to
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4 S.C.R.
SUPREME COURT REPORTS
1009
adduce evidence which necessarily i)llplies a right to have
a public enquiry, to engage an Advocate, to ask for the
examination of the informant or informants and to crossexamine them and to adduce her evidence, both oral and
documentary. The Magistrate, on the basis of the evidence,
decides the aforesaid two questions, and makes a suitable
order indicated in the section.
The right with respect
whereof the jurisdiction is exercised is an important one.
It is a fuudamental right of personal liberty. No right
can be more important to a person than the right to select
hi' or her home and to move about in the manner he or
she likes. Even depraved woman cannot be deprived of
such a right except for good reasons. \Vhen the Legislature conferred jurisdiction on a Magistrate to decide the
question of imposing restrictions on such a right by following judicial procedure, it is reasonable to hold that it
conferred jurisdiction on him as a court, unless the clear
provisions of the Act compel us to ]iold otherwise. Indeed
the analysis of the section earlier made negatives any intention to the contrary. The fact that the enquiry does
not relate to an "offence" is not decisive of the question
whether the Magistrate is functioning as a court. There
are many proceedings under the Code of Criminal Procedure, such as those under ss. 133, 144, 145 and 488, which
do not deal with offences but still it is never suggested
that a Magistrate in making an enquiry in respect of matters thereunder is not functioning as a court. We therefore, hold that in the circumstances the Magistrate must be
held to be acting as a court. If the Magistrate is acting as
a court, as we have held he is, it is obvious that he is
subject to the revisional jurisdiction conferred under s,.
435 and 439 of the Code of Criminal Procedure. The' said
sections confer ample authority on the courts mentioned
therein to set right improper orders passed by a Magistrate in appropriate cases. The result of the discussion is
that the Act discloses a clear policy affording a real guide
for the Magistrate to decide the two questions which he is
called upon to adjudicate under s. 20 of the Act. He functions as a court and decides the said two questions after
giving full opportunity to the alleged prostitute to represent her case and examine her evidence. His decision is
subject to revision by the Sessions Court or the High
1963
Stat< of
Uttar Prad<Sh
v.
Kaushaliya
and others
Subba Rao /.
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subba Rao f.
1010
SUPREME COURT REPORTS
[19641
Court, as the case may be. In the circumstances it is not
possible to say that uncanalised power is conferred on the
Magistrate as an executive authority to decide the fate of
an alleged prostitute in an arbitrary manner.
The next question is whether the policy so disclosed
offends Art. 14 of the Constitution. It has been well settled that Art. 14 does not prohibit reasonable classification
for the purpose of legislation and that a law would not
be held to infringe Art. 14 of the Constitution if the classification is founded on an intelligible differentia and
the said differentia has a rational relation to the object
sought to be achieved by the said law.
The differences
between a woman who is a prostitute and one who is not
certainly justify their being placed in different classes.
So too, there are obvious differences between a prostitute
who is a public nuisance and one who is not. A prostitute
who carries on her trade on the sly or in the unfrequented
part of the town or in a town with a sparse population
may not be so dangerous to public health or morals as
a prostitute who lives in a busy locality or in an overcrowded town or in a place within the easy reach of
public institutions like religious an educational institutions.
Though both sell their bodies, the latter is far more dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or
in the vicinity of public institutions. not only helps to
demoralise the public morals, but, what is worse, to spread
diseases not only affecting the present generation, but also
the future ones. Such trade in public may also lead to
scandals and unseemly broils. There are, therefore, pronourtced and real differences between a woman who is a
prostitute and one who is not, and between a prostitute,
who does not demand in public interests any restrictions
on her movements and a prostitUte, whose actions in public places call for the imposition of restrictions on her
movements and even deportation. The object of the Act,
as has already been noticed, is not only to suppress immoral traffic in women and girls, but also to improve
public morals by removing prostitutes from busy public
places in the vicinity of religious and educational institutions: The differences between these two classes of pro-
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4 S.C.R.
SUPREME COURT REPORTS
1011
stitutes have a rational relation to the object sought to be
achieved by the Act. Section 20, in order to prevent moral
decadence in a busy locality, seeks to restrict the movements of the second category of prostitutes and to deport
such of them as the peculiar methods of their operation in
area may demand.
Judicial decisions
arising under
the Act
and
under analogous Acts were cited at the Bar. The question
whether a particular provisions offends Art. 14 of the
Constitution or not depends upon the provisions of the
Act wherein that section appears. The decisions on other
Acts do not afford any guidance to decide the vires of s.
20 of the Act. We shall, therefore, briefly notice the decisions which have a direct bearing on s. 20 of the Act.
A Division Bench of the Bombay High Court, in
Begum v. State('), had to consider the same question
now before us. It held that the provisions of s. 20 of the
Act would not be hit by Art. 14 of the Constitution,
though it held that the provisions of s. 20 of the Act
which enable a Magistrate to direct a prostitute to remove
herself from the place where she is residing to a place without the local limits of his jurisdiction was an unresonable
restriction upon the fundamental right guaranteed under
Art. 19(1)(d) and (e) of the Constitution. We agree
with the High Court in so far as it held that the section
does not offend Art. 14 of the Constitution, but we cannot accept the view expressed by it in respect of Art.
19(1)(d) and (e) thereof. We shall consider this aspect
at a later stage.
In Shama Bai v. State of U. P. (2 ), Sahai J., though
he dismissed the writ petition without giving notice to
the other party, made some
observations indicating his
view that the said provision prima facie offends Art. 14
of the Constitution. For the reasons already stated by us,
we do not agree with this view. We, therefore, hold that s.
20 of the Act does not infringe Art. 14 of the Constitution.
Now coming to Art. 19(1)(d) and (e) of the Constitution, the question that arises is whether s. 20 of the Act
imposes an unreasonable restriction on girls and women
leading a life of prostitution.
To state it differently,
·-(i) A.LR. 1963 Born. 17.
(2 ) A.LR. 1959 All. 57.
1963
State of
Uttar Pradesh
v.
Kausha/iya
and others
Subba Rao /.
I
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subba Rao J.
1012
SUPREME COURT REPORTS
[1964]
does s. 20 of the Act impose re<1sonabk restrictions on the
exercise of the fondamental right of the prostitutes under
Art. 19(1)(d) and (e) of the Constitution in the interests
of the general public. Under Art. 19(1)(d) the prostitute
has a fudamental right to move freely throughout the territory of India; and under sub-cl.( e) thereof to reside and
settle in any part of the territory of India.
Under s. 20
of the Act the Magistrate can compel her to remove herself from place where she is residing or which she is frequenting to places within or without the local limits of
his jurisdiction by such route or routes and within such
time as may be specified in the order and prohibit her
from re-entering the place without his permission in writing. This is certainly a restriction on a citizen's fundamental right under Art. 19 ( 1) ( d) and ( e) of the Constitution. Whether a restriction is reasonable in the interests or the general public cannot be answered on a priori reasoning; it depends upon the peculiar circumstances of each case. Mahajan J., as he then was, speaking
for the Court in Chintaman Rao v. The State of Madhya
Pradesh(') succinctly defined the expression "reasonable
restrictions" thus :
"The phrase "reasonable restriction" connotes the
limitation imposed on a person in enjoyment of the
right should not be arbitrary or of an excessive.nature.
beyond what is required in the interests of the public. The word "reasonable" implies intelligent care
and deliberation, that is, the choice of a course which
reason dictates."
A fairly exhaustive test to ascertain the reasonableness
of a provision is given by Patanjali Sastri C.J. in The
State of Madras v. V. G. Row('). Therein the learned
Chief Justice observed thus :
"It is important in this context to bear in mind that
the
test
of
reasonableness,
wherever
prescribed,
should be applied to each individual statute impugned,
and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been in,
fringed, the underlying purpose of the restrictions ·
-----------
(') [1950] S.C.R. 759, 763.
( 2 ) [1952] S.C.R. 597, 607.
·\.
r~ ,.
4 S.C.R.
SUPREME COURT REPORTS
1013
imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all
enter into the judicial verdict."
If we may say so, with respect, this passage summarized
the law on the subject fuliy and precisely. The reasonableness of a restriction depends upon the values of life
in a society, the circumstances obtaining at a particular
point of time when the restriction is imposed, the degree
and the urgency of the evil sought to be controlled and
similar others. If in a particular locality the vice of
prostitution is
endemic degrading
those who live by
prostitution and demoralising others who
come
into
contact with them, the Legislature may have to impose
severe restrictions on the right of the prostitute to move
about and to live in a house of her choice. If the evil
is rampant, it may also be
necessary to provide
for
deporting the worst of them from the area of their operation. The magnitude of the evil and die urgency of the
reform may require such drastic remedies. It cannot be
gainsaid that the vice of prostitution is rampant in various
parts o[ the country. There cannot be two views on the
question of its control and regulation. One of the obiects
of the Act is to control the growing evil of prostitution
in public places. Under s. 20 of the Act the freedom of
movement and residence are regulated, but, as we have
stated earlier, an effective and safe judicial machinery is
provided to carry out the objects of the Act. The said restrictions placed upon them are certainly in the interests
of the general public and, as the imposition of the restrictions is done through a Judicial process on the basis of a
clearly disclosed policy, the said restrictions are clearly
reasonable.
It is said that the restrictions on prostitutes, though
th~y may be necessary, are excessive and beyond the requ!fements the eradication of the evil demands. The
movements of prostitutes, the argument proceeds, may be
cont~olled, but that part of the section which enables the
Magistrate to deport them outside his jurisdiction is far in
exces; of the requirements. It is suggested that by consecutive orders made by various Magistrates, the point may
be reached when a prostitute may be deported out of India.
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subba Rao f.
•
1963
State of
Uttar Pradesh
v.
Kaushaliya
and others
Subbo Rao/.
1014
SUPREME COURT REPORTS
!19641
The second argument borders on fantasy. The first argument
also has no force. If the presence of a prostitute in a locality
within the jurisdiction of a Magistrate has a demoralising
influence on the public of that locality, having regard to the
density of population, the existence of schools, colleges and
other public institutions in that locality and other similar
causes, we do not see how an order of deportation may not
be necessary to curb the evil and to improve the public
morals. Once it is held that the activities of a prostitute
in a particular area, having regard to the conditions obtaining therein, are so subversive of public morals and so destructive of public health that it is necessary in public
·interest to deport her from that place, we do not see any
reason why the restrictions should be held to be unreasonable. Whether deportation out of the jurisdiction of
the Magistrate is necessary or not depends upon the facts
of each case and the degree of the demoralizing influence
a particular prostitute is exercising in a particular locality.
If in a particular case a Magistrate goes out of tbe way
and makes an order which is clearly disproportionate to
the evil influence exercised by a particular prostitute, she
has a remedy by way of revision to an appropriate court.
The Division Bench of the Bombay High Court in
Begum v. State(') no doubt held that the portion of s.
20 of the Act which enables the Magistrate to direct a prostitute to remove herself from
the place where she is
living to a place without the local limits of his jurisdiction
unreasonably encroaches upon the fundamental right guaranteed under Art. 19(1)(d) and (e) of the Constitution
and is, therefore, invalid. For the aforesaid reasons, we
cannot agree ·with this view.
·
We, therefore, hold" that the provisions of s. 20 of
the Act are reasonable restrictions imposed in public interest within the meaning of s. 19(5) of the Constitution
and, therefore, do not infringe the fundamental rights of
the respondents under Art. 19(1)(d) and (e) thereof.
In the result, the appeals are allowed. The orders of
the High Court are set aside and those of the Additional
Sessions Judge are restored. The City Magistrate will
now proceed with the enquiry on merits.
Appeals allowed.
(') A.I.R. 1963 Born. 17.
MGIPN-2 S. C. lndia/64-16-1 -65-2500
•