Hotel Priya, A Proprietorship v. State of Maharashtra & Ors.
S. RAVINDRA BHAT, J.
1. Leave granted. These appeals arise from a judgment of th e
High Court of Bombay (and an order which followed it subsequently)1
which upheld the conditions imposed under order dated 12.09.2009.
Summary of Facts
2. The appellants are either owners or are operating re staurants
and bars with the requisite licenses/permissions. Orchestra performances
are a common feature in their premises. They, hence, go by the appellation
“Orchestra Bars”. For this feature, they are required to secure Premises
and Performance licenses under Licensing and Performance for Public
Amusement including Cabaret Performance, Melas and Tamashas Rule,
1960 (hereafter “Rules, 1960”) framed under the Maharashtra Police
Act, 1951 (hereafter “Act, 1951”). The Commissioner of Police, Brihan
Mumbai, exercising powers under Section 33 (1) (w)(i) and ( w)(ii),
Section 162(1) of Act, 1951 read with Rule 108A, 109, 118, 207 and 209
of the Rules, 1960, by orders dated 12.09.2009 in additional to the existing
conditions mentioned in the Premises License, added several conditions.
Certain conditions were challenged by the petitioners in W.P No. 7962/
2010 and connected matters. However, at the stage of hearin g, the
challenge was confined to the following conditions:
(1) The licensee is permitted to keep only four women singers /
artists and four male singers/artists to remain presen t on
permitted stage.
(2) Only eight artists are permitted to remain present o n the
permitted stage (four male and four women).
3. Before the High Court, the appellants had contended t hat
identification of particular number of artists or imposing any restrictions
on the number of artists, whether male or female, has no bases either in
Act, 1951 or Rules, 1960 and violates Article 14 and Article 19(1)(g) of
the Constitution of India.
1 Dated 6 th May 2011 in W.P. No. 7962/2010 and connected cases ; as well as the
judgment and order dated 19.12.2012 in WP 2883/2012, which had followed the decision
in the judgment dated 6 th May 2012.
327
4. The High Court repelled the challenge to the conditions imposed
by the Commissioner, holding that the power to impose them was traceable
to provisions of the Act, 1951, and rules framed under it. It was also held
that the commissioner was granted liberty to issue such conditi ons as
were essential, for the operation of the orchestra bars. The High Court,
therefore, rejected the writ petitions, holding that the Commissioner acted
well within the power to impose such conditions.
Submissions of the Parties
5. Mr. Prasenjit Keswani and Mr. Manoj K. Mishra, le arned
counsel for the appellants submitted that the impugne d conditions
restricting the establishments to engage only eight artists and further,
strictly, four male and four female artistes, are violative of Article 14 and
Article 19(1)(g) of the Constitution.Counsel argued that the restriction
on the number with a further restriction on gender of the performers in
an orchestral combination is restrictive of the performers’ right as well
as the right of the organisers, i.e. the bar or owners of th e place of
entertainment. If there are all-male bands orchestras or all-female bands
or orchestras or any of them containing different permutati ons, the
numerical restriction will have the impact of altogether prohibiting the
participation of such bands. This would be completely unreasonable and
would violate Article 19(1)(g). It is pointed out that none of the reasonable
restrictions clauses under Article 19(6) would be attracted to save such
condition.
6. The Appellants submitted that the conditions have no rationale
with the purported object sought to be achieved. It is pointed out that an
artistic performance such as orchestra, or single band performance can
have different permutations and combinations with respect to the number
and gender of the performers. The composition of performers, is entirely
on how the band or the group wishes to organize its business. This would
depend on what is played, how popularly or well received it is, and which
of the performers have popularity A strict and rigid numerical division of
equal gender participation in the orchestra band, serves no rational basis.
Counsel argued that in a given situation, an item or piece can involve all
male performers, or all females, or few males and majority female, or
vice versa. There may also be participation of transgender persons. While
not disputing that the overall limit of eight performers on stage at any
given point of time is reasonable, the insistence that limits the number of
performers of either gender is unreasonable and manifestly a rbitrary.
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
Learned counsel submitted even a rule or provision of th e plenary
enactment which contains such a condition cannot be justified and would
be struck down as arbitrary. It would also fail the test of classification.
7. Counsel urged that it is pernicious on the part of the l icense
conditions governing an orchestra performance requiring restriction on
the number or gender of the artists. The petitioners cite the decision of
this court in State of Maharashtra & Anr. v. Indian Hotel and
Restaurant Association & Ors. 2 (hereafter ( “IHRA-I”) and Indian
Hotel and Restaurant Association & Anr. v. State of Maharashtra
& Ors. (hereafter “IHRA-III”)3, and urge that this court in those decisions
while rejecting the argument of public morals (banning dancing bars) by
the state, also ruled that “ dancing in bars could not be held to be res
extra commercium.”
8. The appellants submit that under Sections 33(1)(w), (wa) (i)
and (wa)(ii), the Commissioner of Police is empowered to make rules to
license or control places of public amusement or entertainment and also
to frame rules with respect to matters relating to licensing or controlling
in the interest of public order, decency, or morality or in the interest of
general public, the musical, dancing, mimicry, or any other performances
for public amusement. Those provisions also empower making rules to
regulate in the interest of public order, decency, or moral ity or in the
interest of general public the employment of artists and the conduct of
the artists and audience at such performances. The Commission er’s
powers are not under challenge. The appellants however urge t hat on
reading of those provisions, it is clear that the licensing and controlling
can only be through rules or orders. Even though the commissioner has
the powers, such powers have to be exercised under Section 33(2)(ii)
and Section 33(6). Under Section 33(2)(ii), the power of making, altering
or rescinding rules under clauses of Sub-section 1 [except for clause (a)
and (c)] are subject to the previous sanction of that gove rnment; and
under Section 33(6)- a previous publication of the alteration in the rules
is mandated. Therefore, the licensing and controlling can only be achieved
by rules and not by executive instructions/decisions.
9. It is argued that the powers of the commissioners are governed
by Rules 108, 108A, 109, 118, 120, 121, 122, Form-D and Form -E of the
Rules, 1960. The appellants argue that Rule 108-A of the Rules, 1960, -
2 (2013) 8 SCC 519.
3 (2019) 3 SCC 429.
329
does not include restrictions on the number of artistes or the gender of
such artistes who can be engaged by the establishments in the Orchestra
Performances. Further, that the conditions for grant of license as under
Sections 108A, 120 and 122, have already enacted the norms in public
interest, to protect the dignity of women, public order, and public morals.
This court in IHRA-I while considering these rules held that this statutory
regime was sufficient to safeguard the dignity of women. (Pa ras 127,
128, 129, 130, 131, 132). It is also submitted that Section 162 of the Act
does not empower the Commissioner to impose any conditions, it only
envisages that the license granted would specify the condit ions and
restrictions subject to which the license has been granted.
10. Discussing Rule 109, the appellants submits that if the Licensing
Authority is allowed to construe that Rule 109 empo wers the
Commissioner to, in the exercise of her or his discretion, impose any
type of condition, such power would suffer from the vice of excessive
delegation. The rule cannot curtail the fundamental rights given under
Article 19(1)(a) and 19(1)(g), since the conditions imposed under the
said Rule continue to be executive instructions, they cannot curtail the
enjoyment of Fundamental Rights as executive instructions are not law
within the meaning of Article 13(3)(a) and for the purpose of Article
19(6). Reliance is placed on the judgments of this c ourt in Bijoe
Emmanuel & Ors. v. State of Kerala & Ors 4 and Union of India v.
Naveen Jindal5. Hence, imposition of restriction on number of the artists
and their gender has no basis in law.
11. Attacking the reasoning advanced by the state to justify
imposition of the numerical restrictions that they are in the interests of
the general public; subserve the larger interests of public morality, tend
to protect women and to improve their working conditions so that
orchestra bars do not take advantage of the situation and exploit women
artists and waitresses, the appellants submit that the r easoning has no
basis in fact. Even though they were accepted by the High Co urt, by
virtue of this Court’s decision in IHRA-I, that reasoning is no longer
acceptable. In IHRA-I, Sections 33A and 33B of the Act, 1951 which
had completely banned dancing, in liquor bars, but permitted th em in
clubs and three starred hotels and higher establishments were in issue.
This court held that such provisions are discriminatory and thus violates
4 (1986) 3 SCC 615.
5 (2004) 2 SCC 510.
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
Article 14, and that the total ban on dance in liquor bars was not justified
as a reasonable restriction under 19(6) of the Constitution. It is submitted
that the same logic would apply in the present case because the restriction
on the number of performers tends to keep out a number of performers
who might otherwise be entitled to join a band. It tends to regulate the
business and occupation of the performers and in that sense, they have
to bear a disproportionate burden by ensuring that in all bars in
Maharashtra, the bands do not have a certain number of perfor mers
belonging to either gender. Hence, limiting the number of performers to
a certain gender has no rational basis, is excessive, and therefore
unreasonable.
12. Further, dealing with the argument of the state that the
restrictions are necessary in the interest of protection of public morality
it was pointed out that the same judgements extensively deal with this
aspect. Additionally, that the standards of morality in a society change
with the passage of time, thus a particular activity treated as immoral at
one-time may not be so later. The court was dealing with dance
performance and held that dignified forms of dance are socially acceptable
and nobody can take exception. Reliance was placed upon the
observations that a practice which may not be immoral by s ocietal
standards cannot be thrusted upon the society as immoral by the state
with its own notion of morality and thereby exercise social c ontrol.
Furthermore, any legislation of this nature has to pass the mus ter of
constitutional provisions as well in court. It is therefore argued that the
restriction imposed by the condition in challenge cannot be justified on
the grounds that it seeks to prevent prohibited activity and is injurious to
public morals.
13. Learned counsel relied heavily on the judgment in IHRA-III
which had struck down the Prohibition of Obscene Dance in Hotel s,
Restaurants and Bar Rooms and Protection of Dignity of Women
(working therein) Act, 2016 (Act of 2016). It was pointed out by counsel
that the state’s argument to justify those provisions on the basis of
intelligible differentia and that women who perform in such establishments
belong to deprived backgrounds and are vulnerable to trafficking or forced
into bar dancing which they may not be otherwise inclined to was held to
be unjustified. It is submitted that likewise, the restrictions impugned in
the present case, do not in any manner further the Statement of Objects
and Reasons of the Police Act. Hardly any material was pla ced on the
331
record to show how the numerical restriction furthered the ca se of the
state that public order is achieved.
14. Mr. Sachin Patil, arguing for the respondent, urged that t he
history of the legislation showed that orchestra bars are a new form of
dance bars where the same women who were previously empl oyed in
the dance bars, now perform as orchestra artistes. These places exploit
women by making them do obscene dance moves and also engage in
sexual activities with the customers. The condition of having only four
women has been made under Article 15(3) for safety of women
employees/artistes and in the interest of general public.
15. It was contended that there are in all 254 establishments where
orchestral shows are held and only three of them (the present appellants)
have challenged the impugned conditions. Several criminal cases have
been filed against these three establishments. Further, counsel submits
that the said conditions have not been challenged by a single artist or
association of artists.
16. Next, the respondent submits that the impugned conditions do
not violate Article 14. Article 14 permits reasonable clas sification as
long it is based upon intelligible differentia and such dif ferentia has
reasonable nexus to the object sought to be achieved by the law, or the
executive measure. Article 15(3) allows the state to make special
provisions for women. To violate Article 14, two conditions h ave to
satisfied. Firstly, that the person aggrieved has been treated differently
from others and also from the similarly situated persons; and secondly,
such treatment has to be meted out without any rational basis and without
justification. In the present case, the conditions apply to all 254
establishments. It is not the case that fewer number of w omen have
been permitted or vice versa; all establishments have been permitted to
engage the same number of women, in each performanc e. The
restrictions have only been applied to protect the intere sts of women
and prevent their exploitation. It is submitted that instrume ntalists are
besides the artistes.
17. It is urged by the respondent that in the W.P. No. 793/2014,
(filed by the Indian Hotels and Restaurants Associations of which the
appellants are members) the petitioner-Association had, af ter detailed
deliberation accepted the conditions with respect to t he number of
dancers. Reference is made to this court’s order dated 02.03.2016 in
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
Writ Petition (C) No. 793/2014. By that order, this Court approved the
dimensions of the stage (10 ft x 12 ft) on which performance s can be
upheld, and the overall number of artistes.
18. It is urged that the orchestras that perform in other venu es
like auditoriums, halls, grounds etc. are altogether diffe rent from the
kind of orchestras in hotel bar establishments like the appellants. In case
of the former the orchestras or theatrical programs are the sole events
and members of the public attend them as audiences. In the hotel bar
establishments like that of the appellants, orchestra performa nces are
only ancillary to the alcohol served there. Such pro grams are not
professional like the public performances of orchestra or musical groups.
These establishments under the pretext of artists performing for the
orchestra actually require waitresses or bar girls who are known to indulge
in explicit activities with the customers within the pr emises of the
establishment or who go away with customers. The profits gener ated
from such activities, induce the license holders to misuse such places of
public amusement as contact points for prostitution. It was u rged that
between 2009 and March 2013, in Mumbai, a total of 217 cases were
registered under Section 294 IPC and 97 cases under Sections 3,4,5 of
the Immoral Trafficking (Prevention) Act, (PITA) 1956.
19. The respondents submit that the said conditions are not in
violation of Article 19(1)(g) as reasonable restrictions can be imposed
under Article 19(6) in the interests of the general public. Such restrictions
are also essential to protect the dignity of women and p revent their
exploitation; they are reasonable and saved, in addition, by Article 15 (3)
of the Constitution of India.
20. The respondent state urges that the later judgm ent in
Karnataka Live Band Restaurants Association v. State of Karnataka 6
recognized the need for regulations, of the kind that have been challenged.
Therefore, the present impugned conditions are reasonable.
Analysis and Findings
I.Statutory provisions
21. By Section 2 (9) of Act, 1951 a “place of public amusement”
is defined as follows:
6 (2018) 4 SCC 372.
333
“place of public amusement” means any place where mus ic,
singing dancing, or any diversion or game, or the means o f
carrying on the same, is provided and to which the public are
admitted either on payment of money or with the int ention
that money may be collected from those admitted and include s
a race course, circus, theatre, music hall, billiar d room,
bagatelle room, gymnasium, fencing school, swimming p ool
or dancing hall.
Section 2 (10) of Act, 1951 defines a “place of public
entertainment” as follows:
“place of public entertainment” means a lodging-hou se.
boarding and lodging-house or residential hotel, and includes
any eating- house in which any kind of liquor or intoxicating
drug is supplied (such as a tavern, a wine shop, a beer shop
or spirit, arrack, toddy, ganja, bhang or opium shop) to the
public for consumption in or near such place.
Section 33 of Act, 1951 is the rule and regulation making power;
it inter alia, reads as follows:
“Section 33. Power to make rules or regulations of tr affic
and for presentation of order in public place, etc .
(1) The Commissioner with respect to any of the mat ters
specified in this sub section, the District Magistr ate with
respect to any of the said matters (except those fallin g under
Clauses[(a), (b), (d). (db), (e), (g), (r), (t) and (u)]) thereof
and the Superintendent of Police with respect to the matter s
falling under the clauses aforementioned read with Clause
(y) to this sub-section], in areas under their respective c harges
or any part thereof, may make, alter or rescind rules or or ders
not inconsistent with this Act for-…….
(w) (i) licensing or controlling places of public amusem ent or
entertainment; (ii) prohibiting the keeping. of places of p ublic
amusement or entertainment or assembly, in order to prevent
obstruction, inconvenience, annoyance, risk, danger or
damage to the residents or passengers in the vicinity;
…..
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
(wa) (i) licensing or controlling 2[in the interest of public
order decency or morality or in the interest of the general
public with such exceptions as may be specified, the musi cal,
dancing, mimetic or theatrical or other performance s for
public amusement, including melas and tamashas;
(ii) regulating in the interest of public order, de cency or
morality or in the interest of the general public, the employment
of artists and the conduct of the artists and the au dience at
such performances;
Section 33(1) (2), Act, 1951 enables the making, alteration or
rescinding of rules; it inter alia, reads as follows:
“Section 33 (1)…..
(2) (i) The power of making, altering or rescinding rule s under
Clauses (a), (b) and (c) of sub-section (1) shall be subjec t to
the control of the State Government.
(ii) The power of making, altering, or rescinding rules und er
the remaining clauses of sub- section (1) shall be subj ect to
the previous sanction of that Government.”
22. The power to make, alter or rescind rules (under Section 33(2))
is circumscribed by the condition in Section 33 (6) of previous publication
in the concerned locality. Section 162 (1) enacts those licenses and written
permissions have to specify conditions, etc; Section 162 (2) enables
revocation of licenses or written permissions.
23. As precondition for the grant of the licences required for
functioning of the said premises, applicants have to fulfil several conditions
such as7:
(i) Any application for premises licence shall be accompanied by
the site plan indicating inter alia the distance of the site from any
religious, educational institution or hospital.
(ii) The distance between the proposed place of amusement and
the religious place or hospital or educational institution shall be
more than 75 m.
(iii) The proposed place of amusement shall not have been located
in the congested and thickly populated area.
7 Rules 108, 109 and 120 of the 1960 Rules.
335
(iv) The proposed site must be located on a road having width of
more than 10 m.
(v) The owners/partners of the proposed place of amusement
must not have been arrested or detained for anti-social or a ny
such activities or convicted for any such offences.
(vi) The distance between two machines which are to be installed
in the video parlour shall be reflected in the plan.
(vii) No similar place of public amusement exists within a radius
of 75 m.
(viii) The conditions mentioned in the licence shall be observed
throughout the period for which the licence is granted and if there
is a breach of any one of the conditions, the licence is likely to be
cancelled after following the usual procedure.
24. The above provisions are supplemented with the regulations
protecting the dignity of women. The provisions of the Bombay Police
Act, 1951 and more particularly Section 33 (1) (w) empowers the licensing
authority to frame rules.
25. Rules 122 and 123 of the Amusement Rules, 1960 also prescribe
restrictive conditions for holding performances. These restrictions include
any profanity or impropriety of language; any indecency of dress, dance,
movement or gesture; Similar conditions and restrictio ns are also
prescribed under the performance licence; any exhibition or advertisement
whether by way of posters or in the newspapers, photographs of nude
or scantily dressed women; any performance at a place o ther than the
place provided for the purpose; any mixing of the cabaret performers
with the audience or any physical contact by touch or otherwise with
any member of the audience.
II. Previous litigation
26. This court is no stranger to controversies relating to prohibition,
and restriction in participation of women from perf ormances in
establishments in Maharashtra. The first judgment: IHRA-I considered
the validity of Sections 33A and 33B, introduced to the Act, 1951, with
effect from 14.8.2005. Section 33A, prohibited, absolutely, the holding
“of a performance of dance, of any kind or type, in an eating house,
permit room or beer bar”. Existing licenses too were cancelled; to
hold such performances became an offence. By Section 33B (introduced
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
by the amendment of 2005) the prohibition was inapplicable, “to the
holding 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 ho tel or in any
other establishment or class of establishments” having regard to ”(a)
the tourism policy of the Central or State Government for promoting
the tourism activities in the State; or (b) cultural acti vities, the State
Government may, by special or general order, specify in this behalf.”
27. The two provisions (Sections 33A and 33B) were the subject
matter of challenge before the Bombay High Court, which, by a common
judgment, held them to be violative of Articles 14 and 19 (1)(g) of the
Constitution of India. 8 The State of Maharashtra appealed; this court
upheld the view of the Bombay High Court (in IHRA-I).
28. The stage was now set for the second innings, as it were. The
State amended the Act, 1951, enacting new provisions with effect from
26.05.2014. containing fresh restrictions. The Indian Hotel & Restaurant
Association challenged these amendments, by filing a writ petition9. This
court, by its reasoned order, having regard to IHRA-I, stayed operation
of the impugned provision (newly inserted Section 33A). The said order
Indian Hotel and Restaurant Association v. State of Maharasht ra10
(hereafter IHRA-II) stated, inter alia that
“…we think it appropriate to stay the operation of the
provisions enshrined under Section 33-A(1) of the A ct.
However, we add a rider that no performance of dance shall
remotely be expressive of any kind of obscenity in any manne r.
We may hasten to clarify that in the earlier judgment, it has
been clearly stated that sufficient power is vested with the
licensing authority to safeguard any violation of the d ignity
of women through obscene dances.”
29. The Maharashtra legislative Assembly intervened again; this
time, by a further enactment 11 Section 33A was repealed. As a
consequence, this court had no occasion to consider the validity of the
8 In the judgment reported as State of Maharashtra v Indian Hotel & Restaurant Assn,
2006 SCC Online Bom 418.
9 W.P. No. 793/2014.
10 (2015) 16 SCC 100.
11 Maharashtra Act No. 12 of 2016.
337
amendments, made in 2014. The writ petition in IHRA-II was disposed
of by an order dated 30.08.2018.12
30. The Maharashtra Legislative Assembly, through the Act
repealing the 2014 amendment (with effect from 30.08.2016), also enacted
the Act of 2016. The Indian Hotel and Restaurant Association once
again approached this court, under Article 32 of the Constitution,
complaining that the provisions of the Act, 2016 were unconstitutional,
and enacted on the teeth IHRA-I. This court, in its elaborate judgment in
IHRA-III, held several provisions of the enactment, as well as rules
framed under it, and conditions imposed by forms, etc (under the rules)
to be violative of Articles 14 and 19 (1) (g) of the Constitution.
III. Discussion
31. It is apparent from the above discussion that the power of the
state to regulate has not been disputed. However, what is in i ssue, is
whether the restriction imposed through conditions of l icense, are
impermissible because they are not part of the rules or have not been
enacted in any provision of law, and whether the conditions are violative
of Articles 14 and 19 (1) (g) of the Constitution of India.
32. In the previous decisions of this court, the issue decided was
whether a total ban on dancing in bars was justified, and whether it
violated Articles 14 and 19 (1) (g) of the Constitution of India. The issue
in IHRA-I was the validity of Sections 33A and 33B of the Act, 1951.
This court rejected two submissions of the state: one, that there was a
reasonable classification between establishments that wer e three star
and above rating hotels and restaurants, where dancing was permit ted
in bars, and others, because of the nature of their likely clientele; and
two, that the women who performed as dancers, were from depriv ed
backgrounds and susceptible to exploitation. It was held in IHRA-I inter
alia, that:
“119. The next justification for the so-called intelligi ble
differentia is on the ground that women who perform in t he
banned establishment are a vulnerable lot. They come from
grossly deprived backgrounds. According to the appe llants,
most of them are trafficked into bar dancing. We are unable
to accept the aforesaid submission. A perusal of the Obje cts
and Reasons would show that the impugned legislatio n
12 The order is reported as 2018 SCC Online (SC) 3127.
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
proceed on a hypothesis that different dance bars a re being
used as meeting points of criminals and pick-up points of the
girls. But the Objects and Reasons say nothing abou t any
evidence having been presented to the Government that these
dance bars are actively involved in trafficking of wo men. In
fact, this plea with regard to trafficking of women was
projected for the first time in the affidavit filed before the
High Court. The aforesaid plea seems to have been r aised
only on the basis of the reports which were submitted after
the ban was imposed. We have earlier noticed the ex tracts
from the various reports. In our opinion, such isol ated
examples would not be sufficient to establish the co nnection
of the dance bars covered under Section 33-A with
trafficking. We, therefore, reject the submission o f the
appellants that the ban has been placed for the protection of
the vulnerable women.
120. The next justification given by the learned counsel for
the appellants is on the basis of degree of harm which is bei ng
caused to the atmosphere in the banned establishments and
the surrounding areas. Undoubtedly as held by this Court i n
Ram Krishna Dalmia case [AIR 1958 SC 538] , the legislatur e
is free to recognise the degrees of harm and may confine its
restrictions to those cases where the need is deemed to be the
clearest. We also agree with the observations of the US Cour t
in Patsone case [58 L Ed 539 : 232 US 138 (1914)] that the
State may direct its law against what it deems the ev il as it
actually exists without covering the whole field of possible
abuses, but such conclusion have to be reached either on the
basis of general consensus shared by the majority o f the
population or on the basis of empirical data. In our opinion,
the State neither had the empirical data to conclude that
dancing in the prohibited establishment necessarily l eads to
depravity and corruption of public morals nor was t here
general consensus that such was the situation. The three
reports presented before the High Court in fact have present ed
divergent viewpoints. Thus, the observations made in Patsone
[58 L Ed 539 : 232 US 138 (1914)] are not of any help to the
appellant. We are also conscious of the observation s made
by this Court in Mohd. Hanif Quareshi [AIR 1958 SC 731] ,
339
wherein it was held that there is a presumption tha t the
legislature understands and appreciates the needs of its p eople
and that its laws are directed to problems made manifest by
experience and that its discriminations are based on adequate
grounds. In the present case, the appellant has failed to give
any details of any experience which would justify such bla tant
discrimination, based purely on the class or locati on of an
establishment.
121. We are of the opinion that the State has failed to justify
the classification between the exempted establishmen ts and
prohibited establishments on the basis of surroundi ng
circumstances, or vulnerability. Undoubtedly, the legisl ature
is the best judge to measure the degree of harm and make
reasonable classification but when such a classific ation is
challenged the State is duty-bound to disclose the reasons
for the ostensible conclusions. In our opinion, in the pre sent
case, the legislation is based on an unacceptable presumption
that the so-called elite i.e. rich and the famous wo uld have
higher standards of decency, morality or strength of characte r
than their counterparts who have to content themselves wi th
lesser facilities of inferior quality in the dance bars. Such a
presumption is abhorrent to the resolve in the Preamble of the
Constitution to secure the citizens of India “equality of statu s
and opportunity and dignity of the individual”. The State
Government presumed that the performance of an identi cal
dance item in the establishments having facilities less than
three stars would be derogative to the dignity of women and
would be likely to deprave, corrupt or injure public morali ty
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.
xxxxxx xxxxxx xxxxxx xxxxxx
123. In our opinion, the activities which are obscene or which
are likely to deprave and corrupt those whose minds are op en
to such immoral influences, cannot be distinguished on the
basis as to whether they are performing in five-star hot els or
in dance bars. The judicial conscience of this Court would
not give credence to a notion that high morals and decent
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
behaviour is the exclusive domain of the upper clas ses,
whereas vulgarity and depravity is limited to the lower cla sses.
Any classification made on the basis of such invidi ous
presumption is liable to be struck down being wholl y
unconstitutional and particularly contrary to Artic le 14 of
the Constitution of India.”
33. After considering the existing legal and regulatory regime –
including the Act of 1951, and the rules involved in this the judg ment
concluded as follows:
“132. The Rules under the Bombay Police Act, 1951 have
been framed in the interest of public safety and social wel fare
and to safeguard the dignity of women as well as pr event
exploitation of women. 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 existing laws except for
the unfounded conclusions recorded in the Preamble as well
as the Statement of Objects and Reasons. [See State of Guj arat
v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534 :
AIR 2006 SC 212] wherein it is held that: (SCC p. 573, para
75) the standard of judging reasonability of restri ction or
restriction amounting to prohibition remains the sa me,
excepting that a total prohibition must also satisf y the test
that a lesser alternative would be inadequate.] The
Regulations framed under Section 33(1)(w) of the Bo mbay
Police Act, more so Regulations 238 and 242 provide that the
licensing authority may suspend or cancel a licence f or any
breach of the licence conditions. Regulation 241 emp owers
the licensing authority or any authorised police offi cer, not
below the rank of Sub-Inspector, to direct the stop page of
any performance forthwith if the performance is found to be
objectionable. Section 162 of the Bombay Police Act
empowers a competent authority/Police Commissioner/District
Magistrate to suspend or revoke a licence for breac h of its
conditions. Thus, sufficient power is vested with the licen sing
authority to safeguard any perceived violation of the dig nity
of women through obscene dances.”
34. The next decision to examine the same issue, was IHRA-III.
The 2016 Act sought to completely prohibit dancing in bars. This court
341
cited State of Punjab v. Devans Modern Breweries Ltd & Anr 13, in
the context of the argument that the regulations impugned were essential,
having regard to public morals. The court, in Devans had observed that:
“48. Dealing in a commodity which is governed by a statute
cannot be said to be inherently noxious and pernici ous. A
society cannot condemn a business nor there exists a
presumption in this behalf if such business is permitted to be
carried out under statutory enactments made by the legislatur e
competent therefor. The legislature being the final arbi ter as
to the morality or otherwise of the civilised society has also
to state as to business in which article(s) would be criminal
in nature. The society will have no say in the matt er. The
society might have a say in the matter which could have been
considered in a court of law only under common-law right
and not when the rights and obligations flow out of statut es
operating in the field. Health, safety and welfare of the g eneral
public may again be a matter for the legislature to define a nd
prohibit or regulate by legislative enactments. Reg ulatory
statutes are enacted in conformity with clause (6) o f Article
19 of the Constitution to deal with those trades also which
are inherently noxious and pernicious in nature; an d
furthermore, thereby sufficient measures are to be taken in
relation to health, safety and welfare of the general public.
The courts while interpreting a statute would not take recours e
to such interpretation whereby a person can be said to hav e
committed a crime although the same is not a crime in terms
of the statutory enactment. Whether dealing in a comm odity
by a person constitutes a crime or not can only be the subject -
matter of a statutory enactment.”
35. In IHRA-III, this court relied and followed the previous ruling
in IHRA-I where the argument about injury to public morals, and also
that it offended the dignity of women:
“…Injury to Public Morals: The Court categorically rejected
the contention that the dance bars affect or cause harm to
public morale. In pertinent part, this Court stated that:
13 (2004) 11 SCC 26.
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
“120. ..In our opinion, the State neither had the e mpirical
data to conclude that dancing in the prohibited establishment
necessarily leads to depravity and corruption of public moral s
nor was there general consensus that such was the situati on...”
(iii) Res Extra Commercium: The State Government contended
that the dance performances in such establishments affect
the dignity of women and leads to corruption of public morals.
Thus, the respondent justified that the prohibition is a
reasonable restriction necessary “in the interest o f general
public” as under Article 19 (6) of the Constitution. This Court
categorically rejected the said contention, and held tha t the
respondent “failed to establish that the restrictio n is
reasonable or that it is in the interest of general public”. This
Court further added that the prohibition fails to sati sfy the
doctrine of ‘direct and inevitable effect’ to justi fy such
restriction, and the insufficiency of the existing regulatory
framework.”
36. The court clarified that if any performance amounted to
obscenity, it would be punishable under law (Section 294, Indian Penal
Code and in addition, Section 8 (2) of the Act of 2016). It also observed
that the term “obscenity” is known to law. Furthermore, any premises
which permitted obscene shows ran the risk of losing its license:
“However, even if licence is obtained, that would no t mean
that place can be used for obscene dance performanc es or
for exploiting working women for any immoral purpose. It i s
these acts which are made punishable under sub-section (2).
In this manner, the offence under Section 8 (2) is s omewhat
different from the offence that is stipulated in Se ction 294
IPC.”
The court repelled the challenge to Section 8 (2), saying that the
provision for a higher penalty (3 years) in respect of an act which is an
offence under Section 294 was reasonable.
37. The court, in IHRA-III then proceeded to consider the challenge
to conditions, which prohibited throwing currency notes and coins, o r
showering them, on the performers; the condition also required that any
tip offered to the performers, should be included in the b ill of the
establishment. The court held that throwing or showering monies wa s
343
not a desirable practice; at the same time, the imposition on the performers
to forgo tips meant for them, was held to be invalid:
“We are of the opinion that insofar as throwing or showerin g
coins, currency notes etc. is concerned, the provision is well
justified as it aims at checking any untoward incident as the
aforesaid Act has tendency to create a situation of indecency.
Therefore, whatever money, any appreciation of any dance
performance, has to be given, can be done without throwin g
or showering such coins etc. However, there may not be any
justification in giving such tips only by adding thereto in the
bills to be raised by the administration of the place. On the
contrary, if that is done, the person who is rightful rec ipient
of such tips may be denied the same. Further, State cannot
impose a particular manner of tipping as it is entirely a m atter
between an employer and performer on the one hand and the
performer and the visitor on the other hand. We, there fore,
uphold the provision insofar as it prohibits throwi ng or
showering of coins, currency notes or any article or anything
which can be monetised on the stage. However, handing over
of the notes to the dancers personally is not inapp ropriate.
We also set aside the provision of giving the tips only by
adding the same in the bills.”
38. Other conditions, such as stipulations that the establishments
should be located at least a kilometer away from religious and educational
institutions, the safety of their structures, inspection of the premises by
engineers, and other regulatory conditions were conside red. These
included the size of the stage, its area, etc. The court was of the opinion
that such regulations were unexceptionable. However, the court’s
conclusion in respect of one condition i.e., that alcohol could not be served
in the area where performances were held, was that such a condi tion
was unreasonable:
“Condition No. 12 of Part B prescribes serving of alcohol in
the bar room where dances are staged. This is total ly
disproportionate, unreasonable and arbitrary. We se e no
reason as to why the liquor cannot be served at such places.
It seems that State is more influenced by moralistic overton es
under wrong presumption that persons after consumin g
alcohol would misbehave with the dancers. If this is so, such
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
a presumption would be equally applicable to bar rooms where
the alcohol is served by women waitresses. However, such
conditions have been held to be unreasonable by the Courts.
There may be aberrations or sporadic incidents of this nature
which can happen not only at the places where dance
performances are staged but at other places includi ng bar
rooms and even main restaurants. Other measures have to be
adopted to check such a nuance. There cannot be a complete
prohibition from serving alcoholic beverages. We, the refore,
quash condition No. 12.”
39. It is thus clear that each of the arguments which the s tate is
relying on, were considered in the context of challenge to s tatutory
prohibitions, as well as license conditions. The arguments advanced in
the present case, that the restrictions are necessary in the public interest,
to promote the welfare of women, prevent human trafficking in women,
and their exploitation, and that the restrictions are necessary in the interest
of public morals, are well worn, and have been decisively rejected. Apart
from regurgitating the same rejected submissions, the stat e has not
justified, independently, how the gender-cap, as for an individual orchestra
or band, is regulatory.
40. The order of this court dated 02.03.2016 had recorded that
the conditions could limit the size of the stage (where perf ormances
were to be held) to an area of 10 ft x 12 ft size “in restaurant area/
permit room as per approved plan of the Excise Depa rtment for
F .L.-III with non-transparent partition between restaurant and permit
room area.” The court was informed that the limit on the number of
performers would be four. While an overall limit of the nu mber of
performers, which is eight in the present case, cannot b e considered
unreasonable, since the enclosure (120 sq feet) would also include
instrumentalists, that order did not have any occasion to c onsider the
gender-cap for the troupe or band.
41. As far as the decision of this court in Karnataka Live Band
Restaurants Association (supra) is concerned, the requirement of having
to secure a license for a live band was challenged. This court held that
the legal requirement of having to obtain a license was reasonable. There,
the licensing conditions were not disputed. Therefore, that decision has
no bearing on the controversy in the present case.
345
42. The impugned gender-cap (i.e. four females and four males,
in any performance) appears to be the product of a stereotypic al view
that women who perform in bars and establishments, like the appellants,
belong to a certain class of society. Perceptibly, this court observed this,
in IHRA-I:
“The reason for the oppressive and moralistic attitude against
dance bars takes root from a patriarchal view that women
“engaging in any kind of work or profession outside the home
or domestic sphere’ carried ‘low societal status’”
43. In Anuj Garg & Ors. v. Hotel Assciation of India & Ors. 14
this court examined restrictions on women’s employment in the context
of the state’s arguments that such measures were necessary, to protect
them from injury and observed as follows:
36. we do not intend to further the rhetoric of empty right s.
Women would be as vulnerable without State protection as by
the loss of freedom because of the impugned Act. The pres ent
law ends up victimising its subject in the name of prote ction.
In that regard the interference prescribed by the S tate for
pursuing the ends of protection should be proportio nate to
the legitimate aims. The standard for judging the
proportionality should be a standard capable of being called
reasonable in a modern democratic society.
37. Instead of putting curbs on women’ s freedom, empowerment
would be a more tenable and socially wise approach. This
empowerment should reflect in the law enforcement strategie s
of the State as well as law modelling done in this behalf .”
Later, in the course of the same judgment, it was observed that:
“47. No law in its ultimate effect should end up perpetuating
the oppression of women. Personal freedom is a fundamental
tenet which cannot be compromised in the name of expediency
until and unless there is a compelling State purpos e.
Heightened level of scrutiny is the normative thres hold for
judicial review in such cases.”
14 (2008) 3 SCC 1.
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
44. This thought was articulated more poignantly in one of t he
concurring judgments of this court in Joseph Shine v. Union of India15
where it was emphasized that:
“Society ascribes impossible virtues to a woman and confines
her to a narrow sphere of behaviour by an expectati on of
conformity. [ Nandita Haksar, “Dominance, Suppression and
the Law” in Lotika Sarkar and B. Sivaramayya (Eds.), Women
and the Law: Contemporary Problems, (Vikas Publishi ng
House 1994).] Raising a woman to a pedestal is one part of
the endeavour. The second part is all about confining her to
a space. The boundaries of that space are defined by what a
woman should or should not be. A society which perc eives
women as pure and an embodiment of virtue has no qual ms
of subjecting them to virulent attack….. As an embodiment of
virtue, society expects the women to be a mute spec tator to
and even accepting of egregious discrimination with in the
home. This is part of the process of raising women to a pedestal
conditioned by male notions of what is right and what is wrong
for a woman.”
45. Long ago, in C.B. Muthamma v. Union of India 16, this court
recognized the unfairness and discrimination apparent in a service rule,
which required a woman official of the Indian Foreign Service to secure
permission before getting married, and armed the government with power
to terminate her services if it was ”satisfied that her family and
domestic commitments are likely to come in the way of t he due and
efficient discharge of her duties as a member of the servi ce”. This
court in very forthright terms held the rule to be void as discriminatory:
“5. Discrimination against women, in traumatic transparency,
is found in this rule. If a woman member shall obta in the
permission of government before she marries, the sam e risk
is run by the Government if a male member contracts a
marriage. If the family and domestic commitments of a woman
member of the Service are likely to come in the way of effi cient
discharge of duties, a similar situation may well arise in the
case of a male member. In these days of nuclear fam ilies,
inter-continental marriages and unconventional beha viour,
15 (2019) 3 SCC 39.
16 (1979) 4 SCC 260.
347
one fails to understand the naked bias against the gentler of
the species. Rule 18 of the Indian Foreign Service
(Recruitment, Cadre, Seniority and Promotion) Rules, 1961,
runs in the same prejudicial strain:
“(1)-(3) * * *
(4) No married woman shall be entitled as of right to be
appointed to the service.”
6. At the first blush this rule is in defiance of Article 16. I f a
married man has a right, a married woman, other things being
equal, stands on no worse footing. This misogynous pos ture
is a hangover of the masculine culture of manacling the
weaker sex forgetting how our struggle for national fr eedom
was also a battle against woman’s thraldom. Freedom is
indivisible, so is Justice. That our founding faith enshrined
in Articles 14 and 16 should have been tragically i gnored
vis-a-vis half of India’s humanity viz. our women, is a sad
reflection on the distance between Constitution in the book
and law in action. And if the executive as the surro gate of
Parliament, makes rules in the teeth of Part III especially w hen
high political office, even diplomatic assignment h as been
filled by women, the inference of diehard allergy to gender
parity is inevitable.”
46. The justification provided by the respondents, to sustain the
restriction, in so far as they claim to protect the women, in the opinion of
this court, lay it open to the charge of entombing their asp irations. In
case there were any real concern for the safety of wome n, the state is
under a duty - as highlighted by Anuj Garg, to create situations conducive
to their working, to run that extra mile to facilitate the ir employment,
rather than to thwart it, and stifle their choice. Such measures – which
claim protection, in reality are destructive of Article 15 (3) as they
masquerade as special provisions and operate to limit or exclude altogether
women’s choice of their avocation.
47. As far as the question whether a condition entrenched in a
law or a rule, goes, the previous judgments of this court in Bijoe Emmanuel
(supra), Naveen Jindal (supra), were cited by the appellants. In the
present case, the regulation on the overall number of performers , or
even the dimensions of a stage (on which a performance can take place)
HOTEL PRIYA, A PROPRIETORSHIP v. STATE OF
MAHARASHTRA & ORS. [S. RAVINDRA BHAT, J.]
cannot be characterized as a restriction; they can fall within the legitimate
domain of the authority of the commissioner or the government which
formulates such conditions. In view of this court’s conclusion and findings
that the restriction is upon the gender, in the sense that it s eeks to cap
the number of performers on the basis of gender. This restriction directly
transgresses Article 15 (1) and Article 19 (1) (g)- the lat ter provision
both in its effect to the performers as well as the li cense owners. In
view of these findings, this court is of the opinion that it is unnecessary
to address the question as to whether the condition imposed- and held to
be unenforceable and void, is “law”.
48. As the authorities of this court have repeatedly emphasized,
whenever challenges arise, particularly based on gender, it is the task of
the judges to scrutinize closely, whether, if and the extent to which the
impugned practices or rules or norms are rooted in historical prejudice,
gender stereotypes and paternalism. Such attitudes have no place in our
society; recent developments have highlighted areas hitherto considered
exclusive male “bastions” such as employment in the armed forces, are
no longer so. Similarly, in the present case, this court holds that the gender
cap imposed by the impugned condition is void. One hopes that the present
judgment would still a lingering and discordant note of a cymbal silenced
long back, by previous judgments of this court.
49. For the foregoing reasons, the impugned judgment is hereby
set aside. It is hereby declared that the condition imposing a gender cap
as to the number of women or men, who can perform in orchestras and
bands, in bars licensed under the Rules, 1960 and other allied provisions,
is void. While the overall limit of performers in any given performance
cannot exceed eight, the composition (i.e., all female, majority female or
male, or vice versa) can be of any combination. The appeals are allowed,
but with no order on costs.
Divya Pandey and Amarendra Kumar Appeals allowed.
(Assisted by : Adnan Khan, LCRA)