A distinction, the foundation of which is classes of the establishments and classes/kind of persons, who frequent the establishments and those who own the establishments cannot be supported under the Constitutional philosophy so clearly stated in the Preamble to the Constitution of India and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender. The Preamble to the Constitution of India as also Arts. 14 to 21, as observed in I.R. Coelho* form the heart and soul of the Constitution. Taking away of these rights of equality by any legislation would require clear proof of the justification for such abridgment. [para 100] *I.R. Coelho (Dead) by LRs. Vs. State of T.N. 2007 (1) SCR 706 = 2007 (2) SCC 1- relied on. 1.2 Section 33A (1) (a) of the Bombay Police Act, 1951 prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar. This is a complete embargo on performance of dances in the establishment covered u/s 33A (1) . Section 33A contains a non-obstante clause which makes the section stand alone and absolutely independent of the Act and the rules. Contravention of s. 33A (1) makes it a criminal offence and on conviction offender is liable to punishment of 3 years. On the other hand, the establishments covered u/s 33B enjoy complete exemption from any such restrictions and dance performances are permitted provided the establishments comply with the applicable statutory provisions, Bye- Laws, Rules and Regulations. [para 98] 1.3 The classification of the establishments covered u/ss 33A and 33B would not satisfy the test of equality. The distinction is made on the grounds of "classes of establishments" or "classes of persons, who frequent the establishments" and not on the form of dance. There is no justification that a dance permitted in exempted institutions u/s 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. Rather it is evident that the same dancer can perform the same dance in the exempted institution u/s 33-B but is prohibited of doing so in the establishments covered u/s 33A. There is no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the State is illustrated by the fact that an infringement of s. 33A (1) by an establishment covered under the said provision would entail the owner being liable to be imprisoned for three years by virtue of s. 33A (2) . On the other hand, no such punishment is prescribed for establishments covered u/s 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Art. 14 of the Constitution. [para 100-101] State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa AND OTHERS 1974 (1) SCR 771 = 1974 (1) SCC 19
E.V. Chinnaiah Vs. State of A.P. AND OTHERS 2004 (5) Suppl. SCR 972 = 2005 (1) SCC 394
Budhan Choudhry Vs. State of Bihar 1955 SCR 1045 = AIR 1955 SC 191
Laxmi Khandsari AND OTHERS Vs. State of U.P. AND OTHERS 1981 (3) SCR 92 = 1981 (2) SCC 600 - relied on. Radice Vs. People of the State of New York 264 U.S. 292 (1924) - cited. 1.4 Once the respondents had given prima facie proof of the arbitrary classification of the establishments u/ss 33A and 33B, it was duty of the State to justify the reasonableness of the classification. The appellants have failed to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. There was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality or morals. [para 100-101 and 104] 1.5 The so called distinction is based purely on the basis of the class of the performer and the so called superior class of audience. It cannot be presumed that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. The presumption which runs through ss. 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes it would lead to immorality, decadence and depravity, cannot be accepted. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The said presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. The presumption is elitist, which cannot be countenanced under the egalitarian philosophy of the Constitution. Thus, ss. 33A and 33B introduce an invidious discrimination which cannot be justified under Art. 14 of the Constitution. Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions. [para 102-103] Charanjit Lal Chowdhury Vs. Union of India AND OTHERS 1950 SCR 869 =AIR 1951 SC 41
Ram Krishna Dalmia Vs. Justice S.R. Tendolkar 1959 SCR 279 =AIR 1958 SC 538
State of Uttar Pradesh Vs. Kaushailiya AND OTHERS 1964 SCR 1002 = AIR 1964 SC 416
and Shashikant Laxman Kale AND ANOTHER Vs. Union of India AND ANOTHER 1990 (3) SCR 441 =1990 (4) SCC 366 - referred to. 1.6 A perusal of the Objects and the Reasons would show that the impugned legislation proceeds on a hypothesis that different dance bars are being used as meeting points of criminals and pick up points of the girls. But the Objects and Reasons say nothing about any evidence having been presented to the Government that these dance bars are actively involved in trafficking of women. Isolated examples would not be sufficient to establish the connection of the dance bars covered u/s 33A with trafficking. Therefore, it cannot be said that the ban has been placed for the protection of the vulnerable women. [para 105] 1.7 The Legislature is free to recognize the degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest. Further, the State may direct its law against what it deems the evil 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 of the population or on the basis of empirical data. The State neither had the empirical data to conclude that dancing in the prohibited establishment necessarily leads to depravity and corruption of public morals nor was there general consensus that such was the situation. The three reports presented before the High Court in fact have presented divergent view points.