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State of Maharashtra & Anr.
...Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors.
...Respondents1
Citation;AIR 2013 SC 25821
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
regulations. One of the submissions made on behalf of the
appellants was to the effect that it is possible to control
the performances which are conducted in the
establishments fall within Section 33B; the reasons
advanced for the aforesaid only highlight the stereotype
myths that people in upper strata of society behave in
orderly and moralistic manner. There is no independent
empirical material to show that propensity of immorality or
depravity would be any less in these high class
establishments.
On the other hand, it is the specific
submission of the appellants that the activities conducted
within the establishments covered under Section 33A have
the effect of vitiating the atmosphere not only within the
establishments but also in the surrounding locality.
According to the learned counsel for the appellants, during
dance in the bars dancers wore deliberately provocative
dresses. The dance becomes even more provocative and1
sensual when such behaviour is mixed with alcohol. It has
the tendency to lead to undesirable results. Reliance was
placed upon State of Bombay Vs. R.M.D.
Chamarbaugwala & Anr. (supra), Khoday Distilleries
Ltd. & Ors. Vs. State of Karnataka & Ors. (supra),
State of Punjab & Anr. Vs. Devans Modern Breweries
Ltd. & Anr. (supra), New York State Liquor Authority
Vs. Dennis BELLANCA, DBA The Main Event, Et Al.
(supra), Regina Vs. Bloom (supra) to substantiate the
aforesaid submissions. Therefore, looking at the degree of
harm caused by such behaviour, the State enacted the
impugned legislation.
118. We are 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 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 16
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. Keeping in view the aforesaid circumstances, we are
not inclined to interfere with the conclusions reached by
the High Court. Therefore, we find no merit in these
appeals and the same are accordingly dismissed.
126. All interim orders are hereby vacated.
New Delhi;
July 16, 2013.1
Read whole judgment here
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State of Maharashtra & Anr.
...Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors.
...Respondents1
Citation;AIR 2013 SC 25821
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
regulations. One of the submissions made on behalf of the
appellants was to the effect that it is possible to control
the performances which are conducted in the
establishments fall within Section 33B; the reasons
advanced for the aforesaid only highlight the stereotype
myths that people in upper strata of society behave in
orderly and moralistic manner. There is no independent
empirical material to show that propensity of immorality or
depravity would be any less in these high class
establishments.
On the other hand, it is the specific
submission of the appellants that the activities conducted
within the establishments covered under Section 33A have
the effect of vitiating the atmosphere not only within the
establishments but also in the surrounding locality.
According to the learned counsel for the appellants, during
dance in the bars dancers wore deliberately provocative
dresses. The dance becomes even more provocative and1
sensual when such behaviour is mixed with alcohol. It has
the tendency to lead to undesirable results. Reliance was
placed upon State of Bombay Vs. R.M.D.
Chamarbaugwala & Anr. (supra), Khoday Distilleries
Ltd. & Ors. Vs. State of Karnataka & Ors. (supra),
State of Punjab & Anr. Vs. Devans Modern Breweries
Ltd. & Anr. (supra), New York State Liquor Authority
Vs. Dennis BELLANCA, DBA The Main Event, Et Al.
(supra), Regina Vs. Bloom (supra) to substantiate the
aforesaid submissions. Therefore, looking at the degree of
harm caused by such behaviour, the State enacted the
impugned legislation.
118. We are 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 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 16
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. Keeping in view the aforesaid circumstances, we are
not inclined to interfere with the conclusions reached by
the High Court. Therefore, we find no merit in these
appeals and the same are accordingly dismissed.
126. All interim orders are hereby vacated.
New Delhi;
July 16, 2013.1
Read whole judgment here
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