NATIONAL LEGAL RESEARCH DESK
In this case Section 33A of the Bombay Police Act, 2005 was challenged as constitutionally invalid and the petition was allowed. Though it was later stayed by the Supreme Court of India.
The State has relied upon the report prepared by Prayas, a Field Action Project of the Tata Institute of Social Science, Mumbai. They interviewed 72 persons. The Report on the women showed that before coming to work in the dance bars, 96% of the women either in their village or in their present place of residence were doing some work like farming, zari work, domestic work, rolling beedies, etc. 90% had family responsibilities. The report set out from the above scenario that elements of human trafficking were present in the process of entry into this sector and it fits into the definition of human trafficking as per the UN protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention Against Transnational Organised Crime, 2000.
Out of 72 women surveyed by Prayas, 57% were dancers, 26% waitresses whereas rest had not given any information in this regard. 87% of these women were between 18 to 30 years and 6% were less than 18 years. Whereas those who started work in the dance bars 39.80% started between 16 to 18 years, 20.80% between 19-20 years and 18.60% between 21 to 25 years. In so far as educational status was concerned 50% were illiterate, 13% had studied upto primary level and 17% had studied between 5th to 10th standard.
68% of these surveyed women were married and 21% were unmarried. Further, 47% of the married women were deserted, divorced, separated or widowed. The report stated about their physical and mental health, as well as increase in their sexual exploitation and that the women did not find any dignity in their work. 33% women were in fact supporters of the decision to close down the dance bars even though their livelihood presently dependent on that option.
Though the High Court of Bombay overlooked this aspect and furthered the right to livelihood of the dance bar girls.
The Bombay High Court in this case concluded as under:
(1) Maharashtra Act No. 305 of 2005 was within the competence of the State Legislature. Further, the Amending Act was also not repugnant to the Law made by Parliament.
(2) Also, the Proviso to Section 33A(2) did not interfere with the independence of the judiciary.
(3) The Amending Act applied to those establishments having a licence for a eating house permit room or beer bar. As the Eating Houses is included within the definition “Place of public entertainment”, the Act covers, establishments which are the subject matter of the present Petition.
(4) Section 33A, is not violative of Article 15 of the Constitution of India in as much as it does not discriminate against women.
(5) The Amending Act did not amount to an unreasonable restriction on the freedom of speech and expression.
(6) The Amending Act also does not violate the dancer’s or bar owner’s right to life under Article 21, as the bar owner continues to carry on business except dancing in the licensed premises and the dancer was only restricted from carrying on dancing in the prohibited establishment. They could dance elsewhere.
(7) The prohibited establishments and the exempted establishments, though both had licenses, for a place of public entertainment and performance licenses, constitute two distinct classes, as the dances which were restricted in the prohibited establishments, had distinct traits and characteristics of their own.
Section 33A and consequently Section 33B were held as void.
(8) The Amending Act does not amount to prohibition but is a restriction within the meaning of Article 19(6) of the Constitution of India. Thus it allowed to the bar owners to have the same or similar dances as in the exempted establishments and the bar dancers from performing dances other than those restricted.
(9) It did not refer the matter for investigation to C.B.I. as no prima facie case was disclosed against the then Dy. Chief Minister and Home Minister. Though, it directed the Commissioner of Police, Mumbai to continue with the ongoing investigation and file a report with Supreme Court within the period of three months from the date of order on the outcome of the investigation.
Thus the Court held the law as void as it imposed “an unreasonable restriction’’ which was “not in the public interest”.
The challenge in all these petitions was to the constitutional validity of Sections 33A and 33B of the Bombay Police Act, as amended by the Bombay Police (Amendment) Act, 2005. The bill was passed by the Legislative Assembly on 21st July, 2005 and by the Legislative Council on 23rd July, 2005 and had come into force thereafter. The Sections under challenge are:
33A(1) Notwithstanding anything contained in this Act or the rules made by the Commissioner of Police or the District Magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005,-
(a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited;
(b) all performance licences, issued under the aforesaid rules by the Commissioner of Police or the District Magistrate or any other officer, as the case may be, being the Licensing Authority, to hold a dance performance, of any kind or type, in an eating house, performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled.
(2) Notwithstanding anything contained in Section 131, any person who holds or causes or permits to be held a dance performance of any kind or type, in an eating house, permit room or beer bar in contravention of Sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to rupees two lakhs:
Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand.
(3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under Sub-section (1), holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence.
(4) A person aggrieved by an order of the Licensing Authority cancelling the Certificate of Registration and the licence under Sub-section (3), may, within a period of 30 days from the date of receipt of the order, appeal to the State Government. The decision of the State Government thereon shall be final.
(5) Any person whose performance stands cancelled under Sub-section (1), may apply to the Licensing Authority, who has granted such licence, for refund of the proportionate licence fee. The Licensing Authority, after making due inquiry shall refund the licence fee on pro-rata basis, within a period of 30 days from the date of the receipt of such application.
(6) The offence punishable under this section shall be cognizable and non-bailable.
33B. Subject to the other provisions of this Act, or any other law for the time being in force, nothing in section 33A shall apply 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 hotel or in any other stablishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf.
Explanation.–For the purposes of this section, “sports club” or “gymkhana” means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force.