2006 Supreme(Bom) 604

IN THE HIGH COURT OF BOMBAY
Indian Hotel AND Restaurants Association
Versus
State of Maharashtra
Decided on,APRIL 12, 2006

Headnote:CONSTITUTION OF INDIA, 1950 - Article 14 Bombay Police Act, 1951, Sections 33-A and 33-B (As amended by Act 35 of 2005) Dance in eating places, hotels, beer bars, prohibited Not prohibited above category of three stars Fact dance allowable in establishments above three stars clearly indicates purpose is not to curb exploitation of women Allowed in name of attraction in standard hotels Amending Act is clearly discriminatory. Dances are permitted in Three Star Hotels and above and also in clubs or gymkhanas. Entry is permitted in clubs and gymkhanas not only for members but also for their guests. They are permitted to hold dance performances. Hence although they are similarly situated to carry on business, they have been exempted from the said ban. The fact that dance performance can be permitted in Three Star and Five Star Hotels and/or any Gymkhana, etc., clearly shows that the purpose is not to curb exploitation of women and/or avoid vulgarity, but the same is to promote the interests of hotels with large r resources at the cost of eating houses, permit rooms and beer bars with moderate resources, which cater to all classes of people. The amending Act, therefore, is clearly discriminatory and there is no nexus between the proposed prohibition and the intended result. The impugned amendment, therefore, has to be struck down on the touchstone of Article 14 of the Constitution of India as being clearly discriminatory.

       CONSTITUTION OF INDIA, 1950 - Article 14 Bombay Police Act, 1951, Sections 33-A and 33-B (After Amendment Act of 2005) Prohibition on dance in eating places, bars and restaurants challenged being arbitrary No reasonable nexus to aims and objects Prohibition violative of Article 14 of Constitution No proof of exploitation Establishments entitled to a performance licence differently, would be discriminately Amendments violative of Article 14 Accordingly void.

       CONSTITUTION OF INDIA, 1950 - Article 15(1) Bombay Police Act, 1951, Sections 33-A and 33-B Dance performance prohibited Licence cancelled Challenged Law banning dancing in some establishments and not in some Preamble objects and reasons not satisfactory Dancing not allowed in establishment owned by males The direct and inevitable consequence upon fundamental rights of dancers of carrying on profession being examined independently Prohibition applicable on male and female both. The submission of the petitioners is that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them as enshrined in Article 15(1) of the Constitution of India. Women, it is submitted, constitute an overwhelming majority of bar dancers. The primary object and the direct and inevitable effect is the prohibition of dance performance by women in dance bars and thereby denial of employment opportunity mostly to women. Therefore, the State action in prohibiting dancing, infringes their fundamental right, by practicing discrimination on them which is prohibited under Article 15(1) of the Constitution of India. In the present case the effect of the impugned amendment is that it disproportionately impacts women, on the basis of their sex and this was clearly foreseen and intended by the Legislature to so impact. It invades their right to equality, right of freedom of speech and expression, right to occupation or profession or right to livelihood. If the object of Article 15(1) is considered it is bar on the State, amongst others not to discriminate against any citizen on the ground of sex. In the instant case is it so? From the averments of the petitioners and material which has come on record it would be clear that dancing in the exempted establishments was mostly performed by women.

       The law banning dancing in some establishments and exempting other establishments, however, is not traceable to banning dances performed by women only. It is true that the preamble, the objects and reasons clause, and the reply of the State, indicates that it is to ban dancing by women, as will be discussed whilst discussing Article 14 of the Constitution of India. That, however, does not mean that dancing is being prohibited only on the ground of sex. What is being prohibited is dancing in identified establishments. No dancing is permitted in the establishments say by males. The argument could have been accepted if in the banned establishments dancing by males were permitted. The law makes no such distinction. The Act prohibits all types of dances in the banned establishments by any person or persons. Whether such a blanket ban is possible need not be answered, whilst answering the issue. Apart from that the direct and inevitable consequences on the fundamental rights of the dancers of carrying on the occupation or profession are being independently examined. The prohibition, therefore, applies to both men and women. That being the case, the argument advanced on behalf of the petitioners of violation of Article 15(1) has no merits and consequently must be rejected.

       CONSTITUTION OF INDIA, 1950 - Articles 19(1)(a), 19(1)(g), 21 and 14, Schedule VII, List II, Entries 2, 8, 33 and 64 Bombay Police Act, 1951, Sections 33-A and 33-B (As amended by Act 35 of 2005) Dance prohibited in hotels and bars Challenged State legislature empowered to amend Sections 294 and 105 provided Section 294, IPC is also amended Applying doctrine of pith and substance and Entries in List II, present law substantially referable to entries. The State Legislature while enacting a law can take note of international covenants and treaties to which India is a party and/or signatory, as long as the law which it makes falls within its competence or traceable to a right under Part III and or in furtherance of the directive principles. If the law falls within its competence it would not be a law enacted to bring into force international covenants and treaties. Such a power only flows to Parliament under Article 253 read with Entries 13 and 14 of List I. Both Lists II and List III contain innumerable entries in respect of which Central Government as the Federal Government may have signed treaties and conventions. If the State Legislature while enacting a law within its competence, bears in mind the principles as contained in those conventions or treaties, as long as the law made is within its competence, it cannot be said that this would impinge on the domain of Parliament and such an exercise of power would either be a colourable exercise of power or fraud on the Constitution. What the State Legislature in fact does, is to enact a law within its field of competence, but bearing in mind while enacting such a law, international treaties or conventions to which India is a signatory or a convention which by passage of time has reached the status of customary international law. The other aspect of the matter is that once the Legislation is referable to entries in the IInd Schedule, the mere fact that it may also impinge on some entries in List I or List II by itself would not make the legislation unconstitutional. The doctrine of pith and substance will have to be applied. If so applied and as Court examining the entries in List II, the present law substantially is referable to Entries 2, 8, 33 and 64 of List II. Court has no hesitation in holding that the State Legislature had competence in enacting the law.

       CONSTITUTION OF INDIA, 1950 - Articles 19(1)(a), 19(1)(g), 21 and 14 Bombay Police Act, 1951, Sections 33-A and 33-B (As amended by Amendment Act 35 of 2005) Dance prohibited in eating houses Permitted licence became unusable Challenged Central legislation Parliament once enacted law can correct or amend it exclusively Central law already in force Held Law made is within law making powers conferred on State Assembly in List II Issue of repugnancy cannot arise. Repugnancy between a Central Act and the State Act. Article 254 of the Constitution would only be attracted if the law made by the State Assembly is pursuant to a power conferred on it under List III of the Constitution of India and in respect of which Parliament has also made a law. As Court has noted earlier, the law made by the State Assembly is traceable to the power conferred on it under entries in List II of the Constitution. Court may only refer to the judgment in Bar Council of U.P. v. State of U.P. and another, AIR 1973 SC 231 where in the matter of repugnancy, the Apex Court observed as under :

       "The question of repugnancy can only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises."

       It will thus be clear that considering the finding, in the earlier part of this judgment, the law made is within the law making power conferred on the State Assembly in List II. The issue of repugnancy, therefore, would not arise.

       CONSTITUTION OF INDIA, 1950 - Article 19(1)(g) Civil Procedure Code, 1908, Order XIX, Rule 3 Bombay Police Act, 1951, Sections 33-A and 33-B (After amendment of 2005) Evidence Act, 1872, Section 3 Dance performance prohibited Affidavit submitted not complying with Order XIX, Rule 3, CPC Contention only hearsay basis Not reliable Verification clause added Irregularity rectified No further arguments advanced Court relied upon materials other than affidavits Wrong affidavit not relevant. Affidavit in reply not verified according to law : A submission was made that the affidavit not complied with the provisions of Order XIX, Rule 3 of the Civil Procedure Code. Subsequent to the contention being urged, on behalf of the respondents State an additional affidavit was filed. In that affidavit the practice followed on the Original Side of this Court has been set out. It is not necessary for the Court to decide whether such a practice is in consonance with the provisions of the Civil Procedure Code. The requirement for verification is to enable the Court to know whether the affiant is deposing to the facts based on his personal knowledge or based on information conveyed to him and which he believes to be true and/or based on records. If such an affirmation is not made and it is affidavit evidence which the Court must consider, it will be impossible for the Court to decide whether the petitioner has made a false statement before it and if so whether the facts can be relied upon. Also in the absence of verifying the paragraphs as set out earlier, it may not be possible to proceed against the petitioner for perjury or contempt. Added a verification clause subsequent to the argument, rectifying the irregularity. No addition al arguments have thereafter been advanced after verification. Once that be the case it is not necessary to further answer the said issue. The failure to affirm an affidavit was an irregularity which was curable. The respondents have taken steps to cure the irregularity. The Court has taken the affidavit on record. Once that be so it is not necessary for this Court to refer to the various judgments relied upon by the Counsel for the petitioner in Writ Petition. Even otherwise in a challenge to a Legislation, affidavit is not the only material relied upon by the Court. That argument, therefore, must be rejected.

       CONSTITUTION OF INDIA, 1950 - Article 19(1)(g) Bombay Police Act, 1951, Sections 33-A and 33-B (As amended by Amendment Act 35 of 2005) Performance of dance prohibited Licences already issued got cancelled Amendments challenged Fundamental rights violated Effect of amendment impairs fundamental rights to carry on trade and business Profession of dancers badly affected. All applicants for a performance licence have to meet the same requirements and are subject to the same restrictions. Court unable to understand as to why non-vulgar and non-obscene dances cannot also be permitted in the prohibited establishments as they are still entitled to obtain a performance licence. If women can work other than as dancers and that does not amount to exploitation, then how is it that it becomes exploitation, when women dance to earn their livelihood. There is no material to justify the basis for a conclusion, that there is exploitation. If the test is now applied as to whether the classification has a nexus with the object, there is no nexus whatsoever with the object. Treating establishments entitled to a performance licence differently, even though they constitute two distinct classes, would be discriminatory as also arbitrary, considering the object of the Act. Section 33-A and consequently Section 33-B have, therefore, to be held to be void being violative of Article 14 of the Constitution of India.

       CONSTITUTION OF INDIA, 1950 - Article 19(1)(g) Bombay Police Act, 1951, Sections 33-A and 33-B (After amendment of 2005, Act 35) Dance performance prohibited in places of entertainment Challenged Grounds Amendment violative of constitutional rights Profession to earn livelihood illegally barred Held No nexus between banning of dance performance and object of exploitation Restriction can only be in interest of general public. There is no nexus between the banning of dancing in the prohibited establishments and the object of prevention of exploitation as women, who continue to be engaged in those establishments. To prevent dances which are obscene or vulgar there are Rules in force. The dances are within enclosed premises. The general public admitted that the Police force in Mumbai was sufficient to control the dance bars. Eating houses, beer bars or permit rooms are granted licenses only after they satisfy the requirement of law, and in permitted localities. Assuming that there may have been bad practices in the dance bars, the State itself had directed enacting of subordinate legislation, to remove the bad practices. These dances which are held to be a class by themselves and could be prohibited, there is no reason as to why similar dances which are permitted in the exempted establishments cannot be permitted, as the prohibited establishments are still en titled to obtain a performance licence. The restriction therefore, has no rational nexus with the object of the Act. They cannot be said to be in public interest.

       The restriction imposed can be said to be reasonable or in the interest of the general public. Hence, Section 33-A of the Bombay Police Acts is violative of Article 19(1)(g) of the Constitution of India and consequently, we declare Section 33-A as void .

       CONSTITUTION OF INDIA, 1950 - Article 253, Schedule VII, List I, Entry 14 Bombay Police Act, 1951, Sections 33-A and 33-B (After amendment vide Act 35 of 2005) Prohibition on dance performance Challenged statement of president of association as recorded by police disclosing offence against Dy. Chief Minister and Home Minister of Maharashtra Case to be handed over to CBI for further investigation. In the instant case the President of the Petitioner Association was willing on behalf of the Association to pay a large amount unlawfully to interfere in the exercise of a subordinate legislative action, at the instance of those who claim were close to respondent No. 4 for changing the timings of the dance bars upto 3.30 a.m. If true, it indeed would be a sad day for this Republic and the faith that millions have in the Constitution and the law. That the law can be amended, bent or altered for a consideration is a crime that no civilised society can accept. Our observation, however, does not in any way reflect on the facts of the present case. If the statement of Sethi is considered it is his own case that the respondent No. 4, the Home Minister has never demanded any amount from him nor has he met him. The entire exercise had been at the highest. There is prima facie material to indicate on the record as it stands, that Shri ’S’ and Shri ’P’ were involved in contacting the President of the Association to pay a large sum to change the timings of the dance bars. The letter addressed by the petitioner was not only to respondent No. 4, the Home Minister but also to Shri ’J’, the Revenue Minister. On these facts it is not necessary to go into the various arguments advanced, as to what amounts to an investigation and when can it be said that the investigation is in progress. The petitioners have failed to make out any prima facie case for referring the matter to the CBI. Court, direct the respondent No. 8 to take further steps to investigate and record any further statements, if not recorded, and thereafter to proceed according to law at the earliest. A report be filed before the Court within three months from today as to whether ingredients, of any offence have been made out and if so steps that they have taken in the matter. Court may at this stage record the submission made on behalf of the Police Commissioner that the investigation atleast when the matter was argued before this Court did not disclose any criminal offence against respondent No. 4. The prayer cannot be granted.