In the Supreme Court of India Civil Appellate Jurisdiction

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 2705 of 2006

IN THE MATTER OF:

State of Maharashtra ….. Appellant versus

Indian Hotel and Restaurants Association and Anr. ….. Respondent

Written Submissions by Anand Grover, Senior Advocate for the Respondents No. 1 to 6 in S.L.P arising out of Writ Petition No. 2338 of 2005 and Respondents No. 1 and 2 in S.L.P. arising out of Writ Petition No. 2587 of 2005.

I. INTRODUCTION

1. The Respondent No. 1 in W.P. No. 2338 of 2005 is Forum Against Oppression of Women (FORUM), an autonomous, voluntary and non-funded group which has been working on women’s issues for the last 30 years.

2. The Respondent No. 2 in W.P. No. 2338 of 2005 is Aawaaz-e-Niswan (AEN), a registered women’s organisation dedicated towards fighting for gender equality, since last 20 years.

3. The Respondent No. 3 in W.P. No. 2338 of 2005 is Women’s Centre, an all- women’s registered NGO, working on protection of women from violence and harassment.

4. The Respondent No. 4 in W.P. No. 2338 of 2005 is Akshara, an NGO strengthening women’s rights and empowerment by enhancing their agency and capabilities.

5. The Respondent No. 5 in W.P. No. 2338 of 2005 is Women’s Research and Action Group (WRAG), a registered trust, working towards the promotion of the social and legal status of women from marginalised, disadvantaged, and under- represented communities.

6. The Respondent No. 6 in W.P. No. 2338 of 2005 is India Centre for Human Rights and Law, a registered human rights organization, working on access to justice for vulnerable and the marginalised communities.

7. The Respondent No. 1 in Writ Petition No. 2587 of 2005 is the Sanmitra Trust, a registered trust that supports sex workers’ health and rights through access to services including for the prevention of HIV.

8. The Respondent No. 2 in Writ Petition No. 2587 of 2005 is Ekta Self Help Group, a self help group consisting of 10 bar dancers in Mumbai.

II. ABOUT THE CASE

9. The present case concerns the constitutional validity of sections 33A and 33B Bombay Police (Amendment) Act, 2005 (hereinafter ‘BPA’) that sought to ban the performance of dance in eating houses, permit rooms and beer bars, while exempting certain establishments, namely drama theatres, gymkhanas and three starred and above hotels from the operation of the ban.

10. The said law was challenged before the Hon’ble High Court of Bombay on the grounds of violation of the fundamental rights to equality, non-discrimination, freedom of speech and expression, freedom to practice any profession or trade and the right to livelihood, dignity, autonomy and health under Articles 14, 15, 19(1) (a), 19 (1) (g) and 21 of the Constitution respectively.

11. By its final order and judgment dated 12.04.2006, the Hon’ble High Court struck down the impugned law on the ground that it violates Article 14 and Article 19 (1) (g) of the Constitution, since the classification between the establishments covered under Sections 33A and 33B of the BPA had no rational nexus with the object of the legislation, which was to prevent vulgar and obscene dancing in the eating houses, permit rooms or beer bars (hereinafter collectively referred to as ‘dance bars’). The Hon’ble High Court also upheld the challenge under Article 19(1)(g) on the basis that the impugned law prevented the bar owners and dancers from exercising their freedom of occupation and was not a reasonable restriction within the meaning of Article 19(6) and was thus void.

III. CLARIFICATION OF FACTS

Appellant’s claims

12. The Appellant has raised a number of contentions in support of the ban on dance bars. These include:-

i. that women who dance in bars are trafficked or compelled to dance against their will;

ii. that a significant number of dancers are minor or under the age of eighteen years; iii. that the majority of dancers are from states outside Maharashtra which confirms the allegation of inter-state trafficking; iv. that dancing in bars is a ‘gateway’ to prostitution v. that bar dancing is associated with crime and breeds criminality vi. that the conditions in dance bars are exploitative and dehumanizing for women vii. that bar dancing contributes to social-ills such as illicit affairs between dancers and the male visitors, break up of family and domestic violence against wives of men visiting the dance bars

It is submitted that the above-mentioned contentions are founded on incorrect, exaggerated or overstated claims.

Documents relied upon

13. The Appellant has relied on two documents to corroborate its claims. These are:

 “A study of the Socioeconomic situation and rehabilitation needs of women in dance bars” by PRAYAS and TISS, which was conducted in April-May 2005 after the decision to impose the ban was taken by the Appellant (hereinafter “Prayas study”) (Annexure A-1 of Volume IV) and;

 A study report of Shubhada Chaukar on problems of Mumbai’s Bar Girls, 1998. (Annexure A-2 of Volume IV)

14. The Prayas study has a sample size of 72 respondents while Shubhada Chaukdar surveyed 50 bar dancers. The total number of bar dancers is estimated to be over 75,000. The samples in the above two surveys are very small and unrepresentative of the population of bar dancers in Maharashtra.

15. There is a third study, entitled “Background and Working Conditions of Women Working As Dancers in Dance Bars” conducted by the Research Centre for Women’s Studies, SNDT University and Forum Against Oppression of Women in 2006 (hereinafter “SNDT study”), (Annexure A-4 at Volume IV) which interviewed a larger group of 500 dancers. This survey contradicts many of the findings of the Prayas study. To illustrate, while the Prayas report documents ‘elements of human trafficking’ in the entry of women into bar dancing, the

SNDT study concludes that none of the dancers were trafficked or forced to dance in the bars. Even where their findings are similar, the conclusions drawn by Prayas and the SNDT reports are starkly different. For instance, the fact that a considerable number of dancers are from states outside Maharashtra or have low levels of education raises an alarm of trafficking in the Prayas report. But the SNDT study notes that the background, profile and living conditions of dancers is no different from that of other poor and unskilled migrants, who come to Mumbai to earn a living and that applying the ‘trafficking’ lens to the former is unjustified.

16. For reasons best known to them, the Appellant has chosen to rely on the Prayas study to support its contentions and ignored the findings of the SNDT study, despite it being more representative than the other two.

17. The Appellant has not made any inquiry by itself or commissioned a survey of the dance bars. There was no material collected by the Appellant on the nature of performances and conditions in licensed establishments, to support the differential treatment between section 33A and section 33B of the BPA. The Hon’ble High Court has rightly noted the absence of materials produced by the Appellant - “No survey or any report was prepared or commissioned by the State Government, before the Cabinet took the decision to introduce the ban.”

Police complaints and FIRs

18. The Appellant has sought to rely on Police complaints; FIRs registered against the dance bars to substantiate their contentions. After a perusal of these materials, the Hon’ble High Court found no substance in the claims that there was trafficking or prostitution associated with the dancing. The High Court also noted that a large number of women are employed in the bars as waitresses, orchestra singers and attendants who serve customers, otherwise than through dancing, who are not thought of as being trafficked or vulnerable to exploitation.

19. Official data on the incidence of trafficking crimes is available from the National Crime Records Bureau (“NCRB”), of the Ministry of Home Affairs, Government of India. The NCRB’s annual report ‘Crime in India’ provides the most reliable statistics on crime, including the crime of human trafficking, as recorded under the Indian Penal Code and Special Legislations like the Immoral Traffic (Prevention) Act, 1956. The figures below for Maharashtra (reproduced from NCRB reports for the years 2004 to 2011) do not show any nexus between dance bars and trafficking in women.

NCRB data on Human Trafficking Offences in Maharashtra from 2004-2011 onwards

Offences 2004 2005 2006 2007 2008 2009 2010 2011

Buying of 23 31 25 29 27 20 Girls for Prostitution (Section 373, IPC)

Selling of 1 0 1 2 1 2 Girls for Prostitution (Section 372, IPC)

Procuration 15 13 13 42 26 20 of Minor Girls (Section 366A, IPC)

Importation 0 0 1 0 0 0 0 0 of Girls (Section 366B, IPC)

Immoral 309 222 378 322 327 271 306 390 Traffic (Prevention) Act, 1956

Child 15 7 5 Marriage Restraint Act

Impact of the ban on dance bars

20. By its judgment dated 12.4.2006, the Hon’ble Bombay High Court declared the impugned provisions unconstitutional under Article14 and Article 19(1)(g). However, in May 2006 the Appellant obtained a stay, which prevented the dance bars from reopening. As a result, the bar dancers’ were unable to return to their 5

work. They have remained out of job, since August 2005. Over the last seven years, the Appellant made no attempt to offer alternative employment or economic opportunities to them. A study conducted by the Research Centre for Women’s Studies, SNDT University and Forum Against Oppression of Women in December 2006 entitled “After the Ban: Women Working in Dance Bars”, (Annexure A-5 at Volume IV) reveals that women dancers are more vulnerable than ever before, having no economic or social support. Women, who managed to find work outside bars, report a substantial reduction in income. Some have reportedly resorted to sex work, in unsafe circumstances and with negligible negotiating power. Respondent No. 1, Sanmitra Trust, in Writ Petition 2587 of 2005 which runs health services for women in sex work and those working in dance bars found an increase in the number of women dancers presented symptoms of sexually transmitted infections and testing positive for HIV.

21. Overall, it would be fair to say that contrary to the legislative objective, women dancing in bars are worse off than they were prior to the imposition of the ban.

IV. GROUNDS a. Sections 33A and 33B of the BPA violate Article 14 of the Constitution

22. Article 14 of the Constitution guarantees equality before law and is a safeguard against vague, arbitrary and unjust State action.

23. Under Article 14, classification is reasonable only if two conditions are fulfilled, namely (i) that the classification must be found on an intelligible differentia, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. [D.S. Nakara v. Union of India (1983) 1 SCC 305 at para 11]

The classification between the establishments under section 33A and section 33B of the BPA is unreasonable

24. The Hon’ble High Court had incorrectly upheld the classification between establishments covered under sections 33A and 33B of the BPA, based on the type of dance performance. It had accepted the contentions raised by the Appellants in their affidavits, instead of relying on the plain language of the impugned law.

25. The validity of legislation cannot be judged on the basis of affidavits filed on behalf of the State. The Appellants in their affidavits have argued that the classification is on the basis of type of dance performed in these establishments but the plain language of the statute does not reflect that. [Sanjeev Coke

Manufacturing Company v. Bharat Coking Coal Limited and Anr. (hereinafter ‘Sanjeev Coke’) [(1983)1 SCC 147 at para 25]

26. The impugned law has sought to distinguish establishments under sections 33A and 33B of the BPA, not on the basis of the type of dance performance but on the basis of the class of such establishments.

27. Both sets of establishment are subject to a regime of licenses and regulations under the BPA and the Bombay Prohibition Act, 1949. The dances performed by the dancers in these establishments are of similar nature too, i.e., dancing to the tunes of popular Hindi film songs. However, the law has sought to treat these establishments separately.

28. The Appellants in their affidavit in reply to the Writ Petition No. 2450 of 2005 at paragraph 33 (See Annexure P-5 of Volume II) inter alia state that:-

“Even otherwise five star hotels are class themselves and can’t be compared with popularly known dance bar…..the persons visiting these hotels or establishments referred therein above stand on different footing and can’t be compared with the people who attend the establishments which are popularly known as dance bar. They belong to different strata of society and are a class by themselves.”

27. Apart from the fact that the above statements are contrary to what is laid down in Sanjeev Coke, they reflect the entrenched class bias and elitist assumptions that underpin the impugned legislation.

Classification between sections 33A and 33B establishments has no rational nexus with the object of impugned legislation

28. While section 33A prohibited any kind or type of dance performances in eating houses, beer bars and permit rooms (hereinafter collectively referred to as ‘dance bars’), section 33B allowed all types and kinds of dances in establishments like drama theatre, cinema theatre, sports club or gymkhana or three starred or above hotels.

29. As discerned from the Statement of Objects and Reasons (hereinafter ‘SOR’), the object of the legislation was ostensibly to protect women from exploitation by prohibiting dances, which were of indecent, obscene and vulgar type, derogatory to the dignity of women and likely to deprave, corrupt or injure the public morality, or morals.

30. The said object was sought to be achieved by prohibiting all forms of dance in one type of establishments and allowing the same in the other type, irrespective of the decency of the dance.

31. There is no reason to presume that the performance of dance in dance bars was necessarily obscene or vulgar, while the dancing in the exempted establishments was always non-vulgar and non-obscene dances, based on the profile of customers who frequent these places. This assumption has rightly been rejected by the Hon’ble High Court:

“The distinction sought to be made by the State based on the class of the establishments and the kind of persons who frequent the establishments or those who own them cannot be supported by law or by our constitutional philosophy.”

32. It is submitted that the type of dance being performed in the dance bars was no different from the dances shown in popular Hindi films, often performed by top heroines of the film industry. The same gestures and movements of Hindi film songs were picked up by the bar dancers.

33. In fact, most of the Hindi film songs or even dancing in discos are much more sexually explicit and in close contact between men and women, rather than dancing in dance bars. Even the clothes worn by the bar dancers were much more modest than worn by Hindi film actresses in the songs.

34. If the object of the law was to prevent obscene dancing, then the required rules and regulations were already in existence to achieve the same. The rules framed under the BPA stipulate that the dance performance could not be vulgar or obscene, otherwise the license could be cancelled. 11 PLs (Performers License) and 49 PPELs (Place of Public Entertainment License) were cancelled from 2000 – 2005.

35. The Hon’ble High Court had correctly upheld the Respondent’s contention that if the object of legislation was to prevent exploitation of women in dance bars, then why was the prohibition only limited to women dancers? If women engaged in other kinds of work in these establishments, then it was not exploitation. But if they chose to engage in dancing in the same establishments, then it became exploitation. This is patently arbitrary and discriminatory.

36. It is argued by the Appellant that the prohibition of dance performances in the dance bars under section 33A was necessitated due to the existence of specific exploitative practices that were derogatory to the dignity of women, especially showering of money. The practice of showering of money created an unsafe working environment not only for the dancers but also for women working as waitresses, or residing in nearby areas. All these exploitative elements were non- existent in the exempted establishments under Section 33B.

37. Assuming without admitting that the practice of showering money by men violated the dignity of women and sought to objectify women, then the men should have been stopped from showering money, instead of prohibiting women from dancing in the dance bars.

38. This was exactly the recommendation of the Committee set up by the State Government in 2002, which had suggested stopping the practice of showering of money in the dance bars. But this was not enforced by the State.

39. The working conditions existing in the dance bars were no more exploitative than any other informal labour settings like agricultural work, domestic labour, etc. In fact, women dancers in the dance bars enjoyed much more freedom and autonomy in the negotiation of their remuneration and working conditions with the bar owners. [See SNDT Report (2006) Annexure A-3 at page 83 of Volume IV].

40. Since the dance bars were already subject to rules and licensing conditions, the exploitative practices, if any, could be rooted out by following the existing regulations and making them applicable to dance bars or by enacting additional laws governing the working hours, minimum wages, adequate time for refreshments and leisure, and even allowances for housing etc for the benefit of the dancers.

41. The Appellant further wrongly argues that dancing in dance bars was not a profession of choice but of necessity and the dance bars actively thrived on the vulnerabilities of women, who had little or no education and were completely dependent on the bar owners or middlemen. This was similar to trafficking in women, since young women were lured in the profession with the prospect of earning easy money. It was imperative for the legislature to treat these establishments separately based on the degree of harm that they facilitated.

42. Most of the dancers in the dance bars were/are adult women in the profession and had chosen to do dancing out of their own volition, as part of opting for the best alternative, albeit, amongst limited options. This is evident from the SNDT Report (2006) [at page 70 of Volume IV] that majority of bar dancers were above 18 years of age (93.2%) and were not coerced into the professions. (page 76 of Volume IV)

43. It is submitted that neither the SOR nor did the text of law mention anything about trafficking. It was introduced only at the time of arguments in the Hon’ble High Court by way of affidavits filed by the State. Further, no case of trafficking has been made out. No single conviction has been recorded under the ITPA. The Hon’ble High Court had also noted the Respondent’s contention that there was no evidence that women were trafficked to dance in dance bars. The Court held that “the State did not conduct any study in support of the argument that there were elements of trafficking...There was no mention of trafficking. No case of trafficking has been established.”

43. The Hon’ble Bombay High Court had thus rightly held that the classification between the establishments covered under Sections 33A and 33B of the Bombay Police Act had no rational nexus with the object of the legislation.

Section 33A treats dissimilar acts equally 44. Section 33A of the BPA prohibited the performance of dance of any kind or type in any eating house, permit room or beer bar. So dancing was banned even in eating houses, which did not serve liquor.

45. Further, it clubbed all disparate forms of dance that may be performed in the dance bars, including decent and indecent, in one category.

46. Section 33A forbid the performance of a dance within the limits of decency in an eating house where liquor was not served. This was unjust and arbitrary and violated Article 14.

The impugned law violates the principle of proportionality 47. The principle of proportionality is implicit in the Article 14 of the Constitution and has been recognised as one of the criteria for judging the constitutional validity of a statute.

48. In considering a legislative restriction proportionate, the Courts examine whether - i) the measure adopted is fair, just and non arbitrary and is rationally relatable to the object sought to be achieved, ii) the means infringe the fundamental right as little as possible or in the least restrictive manner and, iii) there is a balance between the right impaired and the objective that it intends to achieve. [Om Kumar and Others v. Union of India [2000 (7) SCALE 524 at para 27]

49. The Appellant ought to have opted for the least restrictive measure, in order to achieve the object of legislation. The Appellant could have achieved their stated objective of the law by regulating the dance bars more stringently and made sure that no licensing conditions, including proscription on vulgar and obscene dancing, was flouted.

50. Rule 21-A of the Rules for Keeping Places of Public Entertainment in Greater Bombay, 1953 (hereinafter ‘1953 Rules’), framed under the BPA specifically prohibits any person from holding any indecent or obscene dance performance. Rule 23 of the 1953 Rules provides for cancellation of licenses if the bar owner knowingly permits prostitutes or criminals to meet in the dance bars.

51. Thus, the existing rules already provide for the outlawing of vulgar and indecent dances or criminal activities in the dance bars and there was no need to have a blanket ban on all dance performances in the dance bars.

52. The Appellant contends that the prohibition contemplated under section 33A is in the nature of additional regulations, since the existing regulations were insufficient to deal with the social problems emanating from the functioning of dance bars.

53. The prohibition envisaged under the law, in the nature of additional regulation, has to be reasonable and non-arbitrary. The Appellant did not even utilize the existing regulatory and licensing conditions.

54. In July, 2004 Report, a government Committee made a series of recommendations on how to make the dance performances safe from the customer’s advances and to ban the practice of showering of money. However, these recommendations were not notified as rules by the State Government and therefore could not be enforced.

55. It is further submitted that new laws protecting women from trafficking and sexual harassment have been enacted. Sections 370 and 370A of the Criminal Law (Amendment) Act, 2013 make the acts of trafficking of a person and engaging a trafficked person for sexual exploitation punishable with rigorous imprisonment and fine. Sections 354A and 354D of the Act have also introduced offences of sexual harassment and stalking.

56. Thus, these laws provide a range of protection for women from sexual violence and harassment, if implemented properly. So any kind of exploitation or sexual harassment of bar dancers can be prosecuted under the current laws. There is no need to have a blanket prohibition on all types of dancing in dance bars.

57. Further, section 33A(2) of BPA makes the holding of any type of dance performance, in an eating house, permit room or beer bar, a punishable offence with a maximum punishment up to three years of imprisonment and a fine up to Rs 2 lakhs. Section 33A(6) makes it a cognizable and non-bailable offence. Section 33A makes the holding of any dance performance in the dance bars a non-bailable offence with imprisonment up to three years. However, Section 294, IPC that penalises obscene acts in public place with an imprisonment up to three months, or with fine, or both.

58. So if a person commits an obscene act in a public place, he/she shall be punished only with 3 months’ imprisonment, while if a decent dance performance is held in the dance bars, then the person would be liable for punishment up to three years. This is completely unjust, drastic and blatantly disproportionate.

59. Thus, by imposing a blanket ban on all types of dancing in dance bars, Section 33A is disproportionate and excessive in nature. Instead of prohibiting only the vulgar and indecent dances, the impugned law has banned all activities of dancing in the dance bars. b. Section 33A is violative of Article 15

60. The Hon’ble High Court held that since the ban on dancing in bars applied to all dancers, irrespective of their gender, the impugned statute was not violative of Article 15(1).

61. It is respectfully submitted that although the statute is facially neutral, it, in effect, curtails the right of female dancers to engage in dancing as a profession. It is an admitted fact that the majority of dancers affected by the ban are women. It is trite to say that legislation must not only be assessed on its stated aims but also on its effects. (See Anuj Garg and Ors v Hotel Association of India and Ors (2008) 3 SCC 1 at para 46; hereinafter “Anuj Garg”)

62. The SOR makes it clear that the impugned provision was concerned with the performance of dances in bars by women. In fact, it could be said that the decision to impose the statutory ban under section 33A was taken because the dancers were women. In other words, the impugned law has been enacted on the grounds of ‘sex’, which is one of the prohibited grounds for discrimination under Article 15(1).

63. Further, the impugned statute is premised on a stereotypical understanding of ‘sex’, that is, the roles assigned to women and men, on the basis of gender. The legislature framed the problem as one of women dancing in bars, at night, for male audiences, consuming alcohol. On the one hand, bar dancers are seen as hapless victims, whose dignity is impaired by dancing and being viewed as sexual objects; on the other, they are blamed for seducing viewers, eroding morals and breaking families. Such typecasting of women as ‘chaste’ or ‘defiled’, is absent in the case of men.

64. Gender stereotyping is also palpable in the solution crafted by the legislature. The impugned statute does not affect a man’s freedom to visit bars and consume alcohol, but restricts a woman from choosing the occupation of dancing in the same bars. The legislation, patronizingly, seeks to ‘protect’ women by constraining their liberty, autonomy and self-determination.

65. Rejecting such ‘romantic paternalism’ which rationalized sex discrimination and put women, “not on a pedestal but a cage”, this Hon’ble Court in Anuj Garg [supra] held at para 43:

“Instead of prohibiting women’s employment in the bars altogether, the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is the state’s duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy interference (such as

the one embodied under section 30 [of the Punjab Excise Act, 1914]) from societal conditions would be oppressive on the women and against the privacy rights.”

66. The Appellant has sought to argue that the impugned provisions were enacted in the interest of a broad category of women, which include not just the dancers but also other female employees in the licensed establishments as well as women living in the vicinity of these establishments. In Anuj Garg (supra at para 50), this Hon’ble Court laid down a ‘strict scrutiny’ standard to examine such ‘protective’ laws, which could potentially serve as a double edged sword. The Court adopted a two pronged test: - first, whether the legislative interference is justified in principle and second, if the same is proportionate in measure. Elaborating upon this test, this Hon’ble Court noted at para 51:

“The Court’s task is to determine whether the measures furthered by the State in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom line in this behalf would be a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis. In fine, there should be a reasonable relationship of proportionality between the means used and the aim pursued.”

The said test was upheld and further refined in Subhash Chandra and Anr.v Delhi Subordinate Services Selection Board and Ors. (2009) 15 SCC 458.

This Hon’ble Court also noted at para 47 (Anuj Garg supra) that:

“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 purpose.”

67. The Appellant has cited difficulty in monitoring the establishments covered under section 33A (“administrative convenience”) as a reason for enacting the ban on dancing. No other compelling interest has been shown. The claims of trafficking and exploitation of women are unsubstantiated by material brought on record. Assuming without admitting that they occur, the Appellant State has not shown why existing laws and licensing regulations cannot deal with trafficking

and exploitation. Further, the legislature has imposed a complete ban, without exploring less restrictive measures of control, to address involuntary induction of women into bar dancing. The Appellant’s intervention is disproportionate and fails the strict scrutiny test, expounded by this Hon’ble Court.

68. It is submitted that Article 15(1), which prevents the State from making discriminatory laws on the ground of sex, must be read together with Article 15(3), which empowers the State to make special provisions for women. In Govt. of Andhra Pradesh v P.B. Vijaykumar and anr (1995) 4 SCC 520, this Hon’ble Court observed that "any special provision for women" in Article 15(3), refers to affirmative actions that seek to improve women's participation in all activities under the supervision and control of the State.

69. In Anuj Garg [supra], this Hon’ble Court affirmed the following observation of J. Ginsburg in United States v Virgina 518 US 515, 532-33 (1996) at para 52:

“Sex classification may be used to compensate women for particular economic disabilities [they have] suffered, to promote equal employment opportunity to advance full development of talent and capacities of our nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”

70. Article 15(3) of the Constitution mandates affirmative measures that strengthen women’s rights and not laws that diminish equality or suppress women’s freedoms.

71. This Hon’ble Court in Anuj Garg (supra at para 37) held:

“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 strategies of the state as well as law modeling done in this behalf.”

72. Rather than securing equal rights, forbidding the employment of women as dancers in bars perpetuate gender stereotypes and aggravates inequality. The impugned provision result in invidious ‘sex’ discrimination within the meaning of Article 15(1) of the Constitution and must be struck down. c. Section 33A is violative of Article 19(1)(a)

73. Dancing is an important medium of expression, which is protected under Article 19(1)(a) as an integral part of the freedom of speech and expression. Further Article 19(1)(a) in as much as it protects the right of a performer to perform, 15

also protects the right of the viewers to view the performance. [See Maneka

Gandhi v. Union of India (1978) 1 SCC 248 at para 75 and Usha Uthup v. State of West of Bengal AIR 1984 Cal 268 at page 24].

74. The fact that the dancers earn a livelihood from dancing in the licensed bars does not take their dancing out of the ambit of ‘speech and expression’ within the meaning of Article 19(1)(a). In Usha Uthup (supra), the Hon’ble High Court of Calcutta held that the denial of permission to perform in a public hall violated the petitioner - artist’s rights under Article 19(1)(a) and Article 19(1)(g) both.

75. It is an admitted fact that the bar dancers dance to Bollywood tunes, not just because they are popular with the audiences, but also because it is an expression of their desire to be a part of the film industry. The Appellant has admitted that the glamour of the ‘tinsel’ town, attracts many young women to work in the dance bars in Mumbai. Dancing to trendy film songs, in costumes resembling those worn by film actresses, is a manifestation of the bar dancers’ dreams and aspirations. Merely because dancing is their occupation does not mean that it is not their mode of personal expression.

76. It is submitted that the dancers are prevented from exercising their freedom of expression as a direct and inevitable consequence of prohibiting dancing in the licensed bars. Establishments covered under section 33A of the impugned Act are the only places where women of the class, background and profile as that of the bar dancers, have a real opportunity to dance. The impugned provision infringes the dancers’ freedom of expression under Article 19(1)(a), which is independent of, and not ancillary to their right to freedom of occupation.

Restrictions imposed on the freedom of expression are not justified under Article 19(2)

77. Article 19(2) provides that the freedom of expression may be restricted by law(s) made in the interest of public order, decency or morality, among other grounds. It is a settled position that the freedom of expression cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger to public interest should not be remote, conjectural or far-fetched, but have a proximate and direct nexus with the expression in question. [See S. Rangrajan v. P Jagjivan Ram (1989) 2 SCC 574 at para 45].

78. Dancing in eating houses, beer bars and permit rooms is not inherently dangerous to public interest. The complaints relied upon by the Appellant of wives of husbands who visit dance bars or complaints related to prostitution

under the Immoral Traffic (Prevention) Act, 1956 are remote and have no direct nexus to the dances performed.

Public order

79. Restrictions on the freedom of speech and expression can be imposed to safeguard public order, which is synonymous with public peace, safety and tranquility. A restriction can be said to be for protecting public order only if the connection between the restriction and the public order is proximate and direct. [See O.K. Ghose and anr v. E.X. Joseph 1963 Supp (1) SCR 789 at para 10]. The Appellant has relied upon some FIRs and complaints made by private individuals of robbery, hurt, etc on account of drunkenness in the vicinity of some beer bars and permit rooms. No link has been shown between these alleged disturbances and the dance performances conducted in these establishments.

Decency or morality

80. Section 33A proscribes dance of “any kind or type”, including dances that are decent, trendy and popular and performed routinely in films, television commercials and other entertainment shows. The cover under Article 19(2) can only extend to law(s) that restrict dances that are obscene or objectionable as they are likely to deprave, corrupt or injure public morals.

81. No material is shown to suggest that the dances performed in establishments under section 33A are obscene or contrary to morals.

82. It is an admitted fact that the dance performances are copied from Bollywood films, which are widely watched by persons of all age groups. Obscenity should be gauged with respect to contemporary community standards that reflect the sensibilities as well as tolerance levels of an average reasonable person. (See S Khushboo v Kanniamal and another (2010) 5 SCC 600 at para 27) If dances performed in films are acceptable, there is no reason to condemn them as indecent or vulgar when performed in dance bars.

83. It is well established that while legislating on obscenity or indecency, one must be vigilant against imposing personal tastes and prejudices onto legal principles. It may be that some persons would find the performances obscene, but nobody is compelled to attend the same. Adult persons as a whole may be relied upon to comprehend intelligently what they are expected to see in the bars. [See Bobby Art International & ors. V. Om Pal Singh Hoon & ors. (1996) 4 SCC 1 at para 30] In the dance bars, the viewers comprise an adult, restricted audience and the dances are performed in enclosed areas. 17

84. The fact that there has not been any convictions under section 294 IPC, only shows that dancing in bars does not offend or cause annoyance to any person, and the dances performed there are not indecent, obscene or vulgar.

85. The Appellant has failed to justify the prohibition imposed on dancing in dance bars, which infringes the dancers’ rights under Article 19(1)(a) of the Constitution of India. d. Section 33A is violative of Article 19(1)(g)

86. The Hon’ble High Court has rightly held that dancing is a profession/occupation and that the dancers’ have the freedom to engage in it under Article 19(1)(g).

87. The Honb’le High Court has rightly held that dancing is not inherently dangerous or pernicious and cannot be treated akin to trades that are res extra commercium. Bar dancers’ therefore, have a fundamental right to practice and pursue their profession/occupation of dancing in eating houses, beer bars and permit rooms. The Hon’ble High Court rightly found no merit in the Appellant’s contentions that bar dancers are underage or trafficked into the profession and rightly rejected the argument that bar dancers’ do not exercise this choice out of their own volition.

88. The Hon’ble High Court was correct in its observations that the social evils complained of by the Appellant were related to serving and drinking of alcohol and not dancing. Yet, the impugned law banned all dancing in the bars without affecting activities around alcohol. More importantly, the impugned provision prohibited the employment of women as dancers but allowed them to work as waitresses, who serve liquor and alcoholic drinks. The Court found no justification in this.

89. Further, the impugned provisions forbade the “holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar”. The said eating house may include places that do not serve alcohol. The dances banned, were also those not considered obscene, vulgar or in-dignified. The Court further noted that the obscene and vulgar dances complained of could have been restricted by applying existing laws including provisions for cancellation of alcohol and performance licenses.

90. The Hon’ble High Court did not find any merit in the contention that dance bars are a ‘gateway’ to prostitution. The Court rightly held that no case is made out for banning bar dancing on allegations of prostitution.

91. It is submitted that the impugned provisions that outlaw all types of dancing in establishments covered under section 33A constitutes a prohibition on the right to freedom of profession/occupation. The profession/occupation of the bar dancers is to dance in bars. It is not open to the bar dancers to find other avenues of work as dancers or otherwise. By cancelling the performance licenses of the dance bars where the bar dancers were working, the impugned legislation affects not only their particular posts or places of employment (locum), but their very ability to dance in dance bars (locus). Under section 33B, three-star and above hotels and other establishments exempted under the said section are allowed to hold dance performances. The clientele in the establishments exempted under section 33B belong to an economically and socially higher class of society, that is, the ‘English speaking elite’. Such establishments would not, in any event, offer jobs to bar dancers from establishments covered under 33A, as these dancers are not drawn from the English speaking, ‘upper’ echelons of society.

92. Assuming without admitting that the impugned provisions do not amount to a prohibition but a restriction on the exercise of the right to occupation, the Hon’ble High Court is right in holding that the same are not reasonable and also not in the interest of the general public and therefore, not saved by Article 19(6) of the Constitution. e. Sections 33A and 33B of the BPA violate Article 21 of the Constitution

Section 33A violates the right to livelihood of bar dancers

93. It is submitted that right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Constitution. [Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 at paras 32 and 33, Narendra Kumar Chandla v. State of Haryana (1994) 4 SCC 460 at para 7 and in Centre for Environment and Security v. Union of India (UOI) and Ors. (2011) 5 SCC 676 at para 1].

94. The deprivation of right to livelihood can be justified if it is according to procedure established by law under Article 21.

95. A law has to be fair, just and reasonable, both substantively and procedurally. Substantive due process has developed into a separate judicial enquiry wherein the Courts have to look into the substance of the law and decide whether the law itself is just, fair and reasonable, apart from procedural fairness. [Smt. Selvi v. State of Karnataka (2010) 7 SCC 263, State of Punjab v. Dalbir Singh 2012 (2) SCALE 126]

96. The impugned law does not meet the test of substantive due process. It does not provide any alternative livelihood options to the thousands of bar dancers who have been deprived of their legitimate source of livelihood. In the name of protecting women from exploitation, it has sought to deprive more than 75,000 women and their families from their livelihoods and their only means of subsistence.

97. There is no viable rehabilitation or compensation provision offered to the bar dancers, in order to tide over the loss of income and employment opportunities.

98. It is argued by the Appellant that impugned law only prohibits dancing in dance bars and not in other places so there is no restriction on the affected bar dancers to dance in the exempted establishment or to find other livelihood options.

99. Most bar dancers come from extremely poor backgrounds, with limited or no education or skill training and have large families to support. They do not have any skill, other than dancing. [See SNDT Report (2006) at page 73 of Volume IV]

100. Majority of the bar dancers were supporting a number of dependents, either in the cities or in villages, through their income from bar dancing. Thus, the ban, therefore, has not only impacted the dancers and their immediate families, but whole communities of people.

101. In the last seven years, the impact of the prohibition has been devastating on the lives of the bar dancers and their families. Many women did not get any employment, while some got employed as waitresses or part of orchestra in the dance bars. It also negatively affected their access to health and housing facilities, children’s education, thereby considerably impacting the overall quality of life. [See SNDT Report (December 2006, Annexure A-5 at page 138 of Volume IV)

102. It is pointed out that the Appellant has not made any attempt to rehabilitate the thousands of affected bar dancers or offered them alternative livelihoods in the last seven years. It has completely abrogated its constitutional obligation to protect the right to life and livelihood of its citizens.

Section 33A violates the right to dignity of bar dancers

103. It is well-settled that that right to life, enshrined under Article 21 of the Constitution, embodies in itself the right to live with dignity. [Francis Coralie Mullin Administrator, Union Territory of Delhi (1981) 1 SCC 608] at paras

7 and 8 and Dr. Mahmood Nayar Azam v. State of Chattisgarh and Ors. [(2012) 8 SCC 1 at para 1]

Dignity and equality intertwined

104. The concept of human dignity is rooted in the worth and value inhering in each individual equally, irrespective of their caste, class and gender considerations. It is also intertwined in equality and manifested as equal respect for all human beings. Dignity of labour is an extension of the dignity of person. A person’s work ought to be valued and not stigmatized on the basis of popular morality.

105. In the present context, the dignity of bar dancers (of persons) and dignity of dancing (work) has been conflated in a pejorative way. The bar dancing in Section 33A establishments is demeaned because the dancers therein hail from socially and economically lower castes and class. So dancing is condemned when performed by women of certain castes and class but when the same dance is performed by an upper class Hindi film heroine in movies, it is not condemned or considered as undignified.

106. The impugned legislation by typifying all dances performed by bar dancers as obscene and vulgar and by further prohibiting and criminalizing the bar dancing gives the message: “In our eyes, neither you nor your dances are worthy of respect and dignity.” The impugned law thus devalues the worth and hard labour of the bar dancers, who danced both as a way to express themselves as well as to earn their living. No respect is accorded to them for who they were and for what they did as living. This is demeaning and impaires their dignity.

107. Dancing in a dance bar to Hindi songs itself cannot be considered as undignified.

108. The Appellant argues that the object of the impugned legislation was to protect the dignity of women who were made to dance in dance bars in unsafe and exploitative conditions and to prevent them from being treated as sexual objects. However, the Appellant sought to prohibit all types of dances in the dance bars.

109. This understanding of dignity of women is in fact premised on the stereotypical, patriarchal and patronizing conceptions of ‘honour’, ‘morality’ and ‘sexual chastity’ of women and not on the constitutional values of equality, respect, diversity and autonomy of women.

f. Dancing in bars does not constitute exploitation; section 33A violates personal autonomy of bar dancers

110. The Appellant has cited ‘exploitation’ of women as one of the reasons for prohibiting dancing in bars. According to the SOR of the amending Act, “such performance of dances is giving rise to exploitation of women.”

111. It is unclear whether the exploitation complained of is of a physical nature or an economic form or of sexual abuse. According to the newly incorporated Section 370 of the Indian Penal Code, 1860, as amended by the Criminal Law (Amendment) Act, 2013, Act No. 13 of 2013:

“The expression exploitation shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude or the forced removal of organs.”

112. So, while physical and sexual exploitation have been covered, economic exploitation has been kept outside the purview of the Penal Code. The same is addressed in labour laws. The Appellant has failed to categorize its allegations relating to exploitation as any of the recognised legal wrongs.

113. Barring the newly enacted Section 370 of the Indian Penal Code, 1860, there is no established legal meaning of exploitation. The plain meaning of exploitation is to use. On this basis, exploitation is not itself immoral or illegal.

114. It is submitted that adult women dancing in bars voluntarily for a fair remuneration does not constitute exploitation. The case of exploitation is established only when the woman is compelled or forced to dance and, or paid compensation at a rate, less than the minimum [market?] wage. (See People’s Union for Democratic Rights v Union of India (1982) 3 SCC 235) Amelioration of such exploitation requires not the prohibition of dance performances, but enforcement of existing laws as well as labour rights and other economic, social and safety standards.

115. Further, with respect to complaints of sexual exploitation of bar dancers whether by induction into prostitution or other non-consensual sexual contact, existing laws can be applied to prosecute and punish the accused. Any other consensual sexual activity that may take place between dancers and guests outside the purview of the dance bar is not proscribed by law. (See S. Khushboo supra at para 31)

116. The Hon’ble High Court has rightly observed that that exploitation is not borne out by the facts of the case. The High Court has also questioned why

exploitation is only complained of in the context of women dancers but not women waitresses, orchestra singers and other female employees in the beer bars, permit rooms and eating houses.

117. The act of an adult person undertaking a legitimate profession or choosing to perform a legitimate activity for gain is indisputably, an expression of her or his autonomy. It is an admitted position that the majority of women (over 90% as per the PRAYAS and SNDT studies) employed in bars as dancers are adult and engage in dancing to earn a living.

118. By banning and criminalizing all types of dancing in bars and restaurants, the impugned statute tramples upon the liberty and autonomy of bar dancers, which is protected as a fundamental right under Article 21 of the Constitution of India. In Anuj Garg (supra), this Hon’ble Court held at para 35:

“Privacy rights prescribe autonomy to choose profession whereas security concerns texture methodology of delivery of this assurance. But it is a reasonable proposition that the measures to safeguard such a guarantee of autonomy should not be so strong that the essence of the guarantee is lost. State protection must not translate into censorship.”

119. This Hon’ble Court criticized the curtailing of individual autonomy by legislation premised on gender stereotypes and rooted in moralistic tradition. (See Anuj Garg at para 41). In the said case, this Hon’ble Court struck down Section 30 of the Punjab Excise Act, 1914 which prohibited the employment of women in any premises where liquor is served to the public. The impugned provisions must meet with the same fate.

The plea of trafficking cannot sustain the impugned legislation

120. It is an established position that the legislative intent of a statute is to be discerned from the words and language of the provision, and where the same is ambiguous, through aids like the Preamble and the SORs.

121. It is submitted that ‘trafficking’ does not find mention in the words, language or text of the impugned statute. The SOR of the amending Act also does not mention ‘traffic in women and girls’; ‘trafficking’ or ‘human trafficking’. It is apparent that the concerns related to trafficking did not feature in the stated aims or objects of the statute.

122. The Hon’ble High Court has also noted that the plea of trafficking was used first time in the affidavits filed before it and is not alluded to anywhere in the legislation or the SOR. The Court rightly held that no case for trafficking is

made out from the material produced in support of the legislation forbidding dancing in the bars.

123. The Appellant has sought to argue that trafficking is the raison d'être for introducing the impugned legislation that imposes a ban on dancing in beer bars. It is submitted that the Appellant is attempting to shift the legislative intent and give the provision a new and different purpose, which did not exist at the time of its enactment. In R. v. Zundel, [1992] 2 S.C.R. 731, the Supreme Court of Canada held: “In determining the objective of the Legislature, the Court must look at the intention of the Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision.”

124. Besides, if trafficking is the real reason for enacting the impugned statute, then the Appellant does not enjoy the power to legislate. Traffic in human beings is prohibited under Article 23 of the Constitution and by virtue of Article 35(a)(ii), only Parliament has the power to enact law proscribing the same. Further, trafficking in persons, especially women and girls is a field covered by international treaties and agreements and by virtue of Article 253 of the Constitution, only Parliament can make law on the same. g. Section 33A violates the right to health of bar dancers

125. The right to health is an inherent part of the fundamental right to life, guaranteed under Article 21. [See: Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42 at paras 24; Society for Un-aided Private Schools of Rajasthan v. Union of India (UOI) and Anr. (2012) 1 SCC 6 at paras 142 -146]

126. After the ban has come into effect, the bar dancers, who have lost their primary source of livelihood, were being compelled to engage in sex work, out of economic necessity, thereby being vulnerable to contracting Sexually Transmitted Infections (hereinafter ‘STIs’) and HIV. This was evident from the increase in the number of bar dancers going to the clinic of Respondent No. 9 in the Malvani area from 12 in January, 2005 to 151 in September, 2005. [para 25 of the Writ Petition No. 2587 of 2005 at page 353 of Volume II]

127. It is noted that some bar dancers did engage in transactional sex occasionally, outside the context of dancing in bars. Such women had negotiating power and would exercise their own will.

128. After the ban, the very same bar dancers lost that space for negotiation and were forced to depend mostly on sex work, so as to survive. They had limited 24

choice in terms of clients and remuneration and had little power to insist on condom usage, thereby exposing them to higher risk of HIV and STIs.

129. The increased ill-effects of the ban on bar dancing on the women bar dancers were further reflected from the health camp organised by the Respondent in September, 2005 in the Malvani area. [See para 26 of the Writ Petition No. 2587 of 2005 at page 354 in Volume II]

130. Besides HIV and STI risk, the ban on dancing in dance bars resulted in overall negative impact on the health of the bar dancers and their families. They had less money to spend on health needs and had to discontinue treatment entailing high expenses. Many even died due to lack of health care.

V. Relief

131. The Court has the power to strike down legislations as unconstitutional on the ground of legislative incompetence or for violating fundamental rights enshrined in Part III of the Constitution of India. [State of Madras v. V.G. Row (1952) SCR 597, to Natural Resources Allocation, In Re: Special Reference No. 1 of 2012 (2012) 10 SCC 1]

132. The direct and inevitable consequences of sections 33A and 33B of the BPA are to violate the fundamental rights of the bar dancers under Articles 14, 15, 19 (1) (a), 19 (1) (g) and 21 of the Constitution. Thus, sections 33A and 33B of the BPA should be struck down as void and unconstitutional.

133. It is argued by the Appellant that if section 33B is struck down as void, then section 33B can be severed from section 33A and the latter can be retained. It is submitted that sections 33A and 33B of BPA are part of a single code and cannot be separated from each other. Further, if section 33A is retained, this would mean that dancing would be prohibited in all classes of establishments, resulting in further violation of fundamental rights of dancers. Also, section 33A itself is violative of Article 14, 15, 19 (1) (a) and (g) and 21 and therefore needs to be struck down.

Place: New Delhi Filed By:

Date: 09.05.2013

Mr. Naveen R. Nath

Advocate for the Respondents